credit thank you here mr sterling ledges that he was sanctions to thirteen months mary custody as this court has described administrative custody in the past which is less restrictive and as mary custody he was confined in a cell for twenty three perhaps if you speak more slowly it will make the distortion less impactful on what we're able to hear from you let me stop you at this point because you've just referred to you issues with him in particular the administrative confinement here you are seeking reversal for the commonwealth is apparent from rulings that have been made that really require some factual exploration that has not made been made by the district court for example what is administrative confine is disciplinary custody what and are you suggesting that one of those is the equivalent of solitary confinement that's not clear to me from your briefing this court to order the district court to phase discovery or i'm certain issues st before moving on to others what your honor said is absolutely right the factual record should be developed  in line with this court's i don't know your next question your honor if i understood you correctly was about whether or not administrative or disciplinary custody is solitary confinement and in fact out that disciplinary custody is more restrictive than administrative custody so the reasonable inference from that is that the disciplinary custody that mr kelly was sanctioned with is indeed solitary confinement if it is so so are you alleging as a matter of fact that it ministre give custody is the equivalent of disciplinary custody your honor we are alleging as a matter of fact that disciplinary guess it is possible that if administrative custody is somewhat terry confinement how can disciplinary custody be more restrictive  solitary confinement and how do you and assuming at least theoretically it can be have you said it with allegations indicating what the differences are well your honor your  know that's rather awkward having five of us in a completely different way or i have never hesitated to get in when i want to get in so i write about i don't know you don't hesitate but sometimes the technology can itself obstruct even the strongest of wills i have never been instructed by the courts technology thank you chief i have a question let me stop you right there just to be clear what isn't one of the errors committed by the district court a determination regarding mr talley's mental condition or the degree of any mental disability the district court determined did it not the mr talley suffered from a severe mental illness all right and  has implications if i understand correctly on the availability of exhaustion for him to have it explained how it is and explain if you would please just  mental illness roster that this case must be reminded that it has to go back for discovery shouldn't we provide some guidance to the district court i may have misheard you but i thought i'd heard you say when you were st to discovery that it be the opening wide open discovery upon return that can't be candidate least given the procedural history of this case we've got two district court opinions there's an opinion that addresses the initial screening with the district court did and then we have the separate opinion and the disposition with respect to the claim against the dio c right yes so shouldn't we remained with some instructions to the district court just as to how any discovery should be narrowed which necessarily will narrow the issues frequently sent cases back to the district court instructing them on what discovery should cover and not cover i agree with chief judge it would be very helpful to us what discovery should cover i don't really think that they're there i don't really think that there would be very much of an efficiency gain from bifurcating discovery only because it's these are all of the same facts that support all of the claims across the failure to state a claim and it of course has the two sub sub sections one is procedural due process which was asserted only against defendants you notice and dukat i think we had some dialog with opposing counsel on the bench about the fact that it really are not people that determine the conditions that an inmate including mr talley lives in they were issue here and remain and that we have agreed is appropriate is to sort out what happened with regard to that particular case but otherwise from the defense point of view this is a relatively clear for due process purposes is that there is no liberty interest if a form of confinement is not an atypical and significant hardship i think earlier in the argument there was a dialogue about the concept i follow terry confinement versus administrative custody versus disciplinary custody and i believe that what we are compelled to to face up to is that both administrative custody and disciplinary custody as those words are often used do involve extended confinement for long hours with limited privileges there are some differences among them area in when we're dealing with the conditions of men administrative concerns of confinement and disciplinary confinement and solitary confinement well i think that they vocabulary is a stumbling block to some degree but i'm not saying what excuse me what i'm trying to say is that there are by now fairly well established definitions of joy that your client has established these particular means of handling prisoners or handling prisoners with disciplinary problems so presumably there are such definitions indeed definitions for all three of them so what are the well they i think that disciplinary custody is imposed for role infractions and are quite institution what i think we should add to this conversation is that mr talley was placed in the special management unit which is a different type of supervision and in fact a less demanding one of the inmate it is one where the inmate has the ability to work through a program and progress and cut potentially his disciplinary time by succeeding at certain goals that the that the counselors and psychologists provide for the inmate so in one way i can short answer shortly yes all these things have nuances and details but our position is that the politics of confinement is actually a loaded term that in general covers everything confinement such as mr talley seems to want to litigate is not what he was does not necessarily mean that he was behind his constitutional rights but that's that's not ours our duty to determine our right because the one of my my troubles with this cases is that between the briefing in the argument we're we're dealing with the abstraction is and it seems to me th needs to happen is the case needs to go back to the district courts of the district court to do you can dig in and and ask questions about what exactly happened with mr talley is and isn't that what needs to happen next well i think you're what you're saying makes a great deal of sense just to judge hartmann my job as you certainly understand is to defend the decision but i think that it would be a lot is dear for all of us if that happened if we go back and and pin very short period of time maybe as short as ninety days the months in solitary that's ninety days a greater for then he gets transferred from greater for defame yet and then he gets put in the special management unit as i understand phase yet but you know beyond that beyond those very high level points i really don't know what happened to this fellow and it seems to me it's not our job as the district courts john to sort through all well i what the special management unit is potentially i think it's probably been more than thirteen months by now attention he could work his way out of there and have his disciplinary obligation reduced if his behavior was good that's why we argued that being in the special management unit for most of the thirteen months would be better than being in a college straight  disciplinary or restricted custody but i agree with you we can't quite tell i think i mean maybe i'm just so immersed in these things from my obligations in my job that i don't see it as as  as difficult to sort out as my colleague on the other side or the court perhaps does because this is not such an every day event for everybody but i think that the fact that there are different levels of custody and different characteristics of the different types of custody frankly there are even more than the ones we've tossed around this morning as far as specialized kinds of  protective or restricted custody that's necessary for inmates in general assuming assuming that and i have no reason to doubt that indeed there are perhaps even more variations doesn't that actually fortifies the need to send this back for factual exploration of those differences and in particular how those differences may have impacted on the availability of administrate of appeal here well yes i think i understand that and i agree up to a point but i also would like to point out that mr talley drafted this point and got this litigation going by suing specific defendants and the defendants are not necessarily the people that are in charge of the conditions of custody that were imposed on him this is particularly true for the st excuse me the procedural due process part of the case where he only named you notice and du pont as defendants and they are the circuit ruling against a prisoner on an administrative complaint does not cause or contribute to the underlying volley violation a guard who stands and watches while another guard beats a prisoner violates the involves concept of personal involvement as any other section one thousand nine hundred and three case and the fact that he lost so to speak at the at the misconduct stage  was we assume we agree with you on that that that you think someone here had ruling against them is not a procedure due process violation opposing counsel is going to have to come up with some other reason that there was a procedural due process violation but i'm still not clear as to what part of the case the commonwealth wants us to shave off on remand are there certain believe should not be in jeopardy  on certain claims can you tell us who those defendants if there are such defendants or such claims well are to summarize it as best i can this on the th amendment procedural due process case our argument was that only the portion that involved the property interest should be remained and the rest should not because the th amendment claim is only raised against you noticed and dupont and they are not responsible for the thing that mr talcott writing about the th amendment as it is as similar but not identical situation more defendants are named on the th amendment part of the case but here it is crucial i think that mr tally was physically transferred after nineteen days to sci fayette and the defendants in question the possible exception of the secretary of corrections had nothing to do with what had been the conditions of vitamins and possible an th amendment that violation that he would want to  experienced at a completely different institution so from your perspective perspective which defendants are still live on  the only one that i think think is potentially live although he has there's a whole inner layer of supervisory liability personal involvement and so on but that the secretary of corrections is responsible for all institutions so if he suffered an th amendment conditions violation upon transfer the people at greater for the misconduct people and the p r c defendants would not be responsible for that  before my time runs out i wanted to try and also touch upon the failure last because we have i guess everybody pretty much agrees that the district court made that determination on the on an incorrect basis and therefore re man to figure out whether the failure to exhaust was nevertheless correct ruling or whether as mr talley argues he was there was no  remedy available to him and i wanted to bring up a question that is sort of a spin off of the judge's incorrect rationale about not being subject to time limits  as a matter of fact the the eight hundred and one misconduct regulation of the department does say some of those requirements such as timing and i also was able to find an elegant analogous case called brown versus frankel fairly recent from this court seven that rule appendix two  part of the rationale that the appellant raised for why why he shouldn't have have been found to fail to exhaust is that he how could he possibly have filed a timely appeal when he didn't have a pen and i realize that is one problem but as i said he could ask for more time for potentially and the other thing he said is that he didn't have the  decision from the nd misconduct round the last two misconducts and until it was too late but i wanted to point out to the court that he was still fully able to appeal from the  results of which he was aware even without having the physical decision in front of him and he was there was nothing stopping him from doing that as a matter of fact that's why i i believe the verbal instructions that he complains about that you have fifteen days to appeal are important because if the if on the th day he doesn't have the decision itself he's knows that if he wants to challenge the outcome should do so quickly but there again was the was that remedy available to him i think it was but if if that's something that requires further exploration on remand i think that would be part of the process or part of the mission of the parties and the court at the next phase of this case let me ask you connect the question the the the supposed harry hearing on the last two issues was done picture so that the claims against him would survive past the transfer of mr talley to well yes and no because of the timing of that remote hearing whatever you notice did in connection with the hearing that could potentially be the grounds for  claim would exist regardless of the truth the problem with suing youngest though is that you don't sue the hearing officer when you're complaining about something that is the responsibility of other people and he is you know this is not answerable for the things that mr talley has tried to complain about even though he was  overseeing the remote hearing shortly after the transfer do you have anything further miss to sort of i think i've covered the points i wanted to make thank you your honor all right thank you if there are no other questions from the people who will hear rebuttal from m still in charge of him in some way now in terms of whether or not defendant us was responsible for the commission like hundreds of and the conditions are a mentally ill person in solitary and the special harm that arises were the ones that we're responsible for placing him into those conditions i also want to note that i believe defendant dupont is d l c why not just not just greater fort i think his responsibilities responsibilities extend beyond ok and what exactly is the basis of the liberty claiming that the liberty interest at stake is duration of thirteen months in solitary nobody with mental illness we can t back the lack of due process was that he didn't have a writing utensil before the hearing so he couldn't write up a statement he couldn't request witnesses those are all things that should be afforded to incarcerated people when they honor all right thank you very much thank you counsel the panel will take the matter under advisement but as you can certainly anticipate it will be with a remained to the district court subject to directives from os as to how the district court is to this matter is concluded