please the court mr faulkner the appellant has spent the last six years confined to s m u two in violation of due process and in cruel and unusual conditions for sixty years mr faulkner has languished in this situation as a result of meaningless reviews despite evidence of any misconduct based solely on a validation that place six years ago this case raises the question among others of whether continued deference to the a t o c results in adequate  products have been quote independent consideration within the meaning of arcade ventures in the arc a venture case the court looked at the whether or not the filing of a notice of abatement proceeding the start are running and in that case the court determined that it in fact did however there was another issue in that case that the car considered and that was at some point later during those that they know proceedings the city of seattle i believe  had given the the bar at issue a settlement offer and the parties are proceeding under the understanding that some an offer was going to resolve the case but the real issue here is it not is whether these subsequent reviews are really independent complete reviews the first one as the record reveals was a rather complete review of the man's history here and all the other elements that went into the decision it seems that i'm hoping you're going to be able to give me a correction if this is role that's a subsequent reviews are at best perfunctory that really don't review anything specific at all you're i would say that in practice that's what's happening i want mr faulkner would argue and i think the position that we've taken in the briefs is that that's not what should be the case the case would be that it be not what should be the case but what is the case these are perfunctory views are they not and your honor they are perfunctory again and the way that the department performs them because the only issue that they consider is whether or not mr wagner has debriefed and renounced however the issue that the review process is intended to address is whether or not he is he still a threat to this to the present system and whether or not he should remain in that and the district is custody in so the question that they're really looking at is whether he should remain there and in effect what our position is is that they don't take that into consideration so you're focusing not so much on the nature of the reviews but just on the nature of the department hasn't acted arbitrarily etc and so if that review is in place and if it is in fact required then it should result in some examination of the circumstances under which that particular inmate is placed in a ministry of segregation and at this point the way that the department perceives that's not what is happening there is no independent i'm sorry i mean rephrase that there are other factors that the department may consider but it ignores them brief is a constitutional process by which in part your honor i think the bigger issue that my client complains about is the fact that there is no consideration of any other factors other than that one there could be a wealth of other information that the department you consider and it does not mean they should be considering in sort of begs the question of why there is a review process in the first place if nothing is going to be considered if changed circumstances are going to be considered for example in this case he's been there for six years one has to wonder whether or not or not six year period considering there's no evidence in the record that he committed any overt acts there is no evidence in the record that he's participated in any gang activity whatsoever no record of escape or times nothing along the lines of the types of things that you see in other cases where the courts have have the issue whether there's a continuing violation that would avoid the statute of limitations let's take the eighth amendment one for a second you know i can imagine if  u prison had cells that were filled with rats and broken glass in the betting in a prison or for some reason didn't complain when they first went in there that they will the statute doesn't run that's a continuing violation but what are the circumstances here that you think would be a continuing violation i think your honor in the context of looking at whether or not the claim has arisen and part of that analysis in the context of an individual who is confined is the question of at what point do those conditions start to cause harm or was the that those conditions were imposed for a period of a week for example perhaps this particular inmate or any other inmate would not have a claim that those conditions rose to the level to violate the at the moment but the question is and under this situation where this person is and definitely confined and where these conditions have been occurring are still occurring to this day at a certain point again not at the limited nature of one day or two days but over that extended period of time the nature of those conditions changed and the impact was definitely different on the  there you can't even be a statue of limitations on an eighth amendment violation the finder stand your argument because the longer your client is there the worse it gets because it's capability of psychologically so when does the statue of limitations begin under your theory i think your honor begins when that particular individual should have known whether or not he or she suffered when is that i think it's going to depend on and in this i don't i don't necessarily think so i think the consideration the court would have to take into to view the impact of the other circumstances on  will please the court so the question here is twofold the first question that defendant i mean that plaintiff excuse me has presented as a due process crying and that claim he claims there is no meaningful review to under hewitt the opportunity to be present in the opportunity to present evidence he's had those opportunities each time what his real complaint is is is the fact that the a t o c policy which  the s t g policy that is implemented in order to protect the prison the prison guards and the public in general that that policy precludes his removal following his status determination and status determination is not a question here he has not raised a question regarding his validation as a member of the a b s the review of whether he gets out of the state right correct and the review of whether he gets out of the status is determined by his ability or willingness at to work their way out of s m u two out of that particular facility now to step down policy takes effect after what four years it takes a four year timeframe your honor in order to to work it's twenty four months of of being a validated member and then there's there's an overlap of eighteen months within that subsequent to that with an overlap where they have to go through various processes except for things that the that the administration the president mr ation can look at to determine whether or not this individual poses or continues to pose a threat to the facility and to the other prisoners or to the cards now as the united determine whether or not the prior validation requires that he be kept in this particular facility the question in terms of violence what bothers me about this case is that it may be the standard is wrong he can submit evidence but nobody's review has reviewed the standard  who wasn't a threat to someone if hypothetically a person could have a personality change they could renounce a gang and not be a threat to anyone would it be a due process violation to require them to tell the tale on the other gang members well the question here yonder is whether or not they are actually telling the tale under our deep briefing process r d briefing process asked that the inmate provide enough information so as to ensure basically it's a way and it's a way of determining whether or not that individual inmate is in reality truly deep briefing whether he's truly in his gang membership because his status as a gang member is what poses a to whether or not a gang member another member of the erin brotherhood would attempt that given the nature of the deep briefing that fails to take into account what other purposes the degree thing has a little sad and sort of kind of a merits question that's correct whether it violates due process i'm not saying it is what i'm for the question i'm raising is if it might be a due process violation then do we have to consider it as a continuing violation because otherwise it's unreviewable no your honor you don't look at it as a continuing violation and the reason being is under hewitt he's gotten the process that the supreme court says he is required to have the question he complains about is the the overriding policy which for  purposes of statue limitations he has been aware of since november of two thousand he has been aware of since this first classification review that there is this overriding policy and that's the crew or the knowledge that  then you can never challenge it that's correct your honor the hotel california you can check in but you can never leave your honor i think looking at that analogy i guess you would be correct but the other alternative is we have an individual who then amendment issue if you have a cell if you had a prison where the in this special unit of the cells were had rats and had lots of broken glass but yet an inmate hadn't challenge address but for purposes of this case if i could i would want to point out that mr faulkner has not proven any eighth amendment violation whatsoever because he has not proven either of the two prongs that are required it's precluded by the statute of limitations that is correct your honor however that does not preclude this court considering the fact that the the merits have been fully addressed in the motions for summary judgment from looking at the motion for summary judgment and determining whether or not mr faulkner has actually met his burden of proof and the defendant submit that he has not met his burden you know i took up more of your time than i should have been there three judges here so we're go couple of minutes of your time so you can cover other points that you want to want to follow up on your hotel california algae because in this case they have not only not had that spirit there since one nine hundred sixty nine that never that it really is  claim if there is one exist or one is one of the commits i would be up to the state's perspective on this do you agree that an eighth amendment violation here is a cumulative matter the longer you're in there the worse it gets violation which is the first level you have to write and second when and the violation requires is two fold for an eighth amendment one that the that the conditions of confinement are cruel and that's where the statue of limitation runs or starts i would suggest yes your honor because in this case you cannot have an eighth amendment violation unless the plaintiff can show that the defendants in this case knew of the risk of substantial harm to him and in this case there is no risk of some staff to harm he has not proven first of all that there has been any violation or that he's been denied any of life's basic necessities he has shelter he has an ability to sleep yes exercise and it's outdoors he but you're getting to the merits of the claim and i'm trying to follow up on gould's question of he hasn't really had a chance to to prove that one way or another admittedly there are some pleadings here but he was dismissed based upon the statue of limitations i'm trying to understand the state's perspective as to whether the statute of limitations begins on this we know what it is that we know when it starts what we need to know what it be gi and the states perspective as i understand it is one of those two to prongs exist if commences and is is it based upon the objective criteria set of criteria or is it what the what the prisoner thinks in this case i believe it has to be objective your honor because if you haven't some jacked up in the what the prisoner thinks there's no telling when this violation starts and then there's no there's no end there it's a continuation don't have the information that you can give to the department that would allow them to conclude that you're no longer a threat and so that's in part where mr faulkner comes down in terms of why that renounce and debrief requirement  level of due process for that secondary review thirdly there was a discussion of when mr faulkner became aware of that policy and certainly he became aware of it in two thousand when he was placed into administrative segregation however that policy to the extent that it's unconstitutional which is obviously a question for the court but to the extent that it is when it's implemented against him at each subsequent review hearing that results in an in a violent action that again gives rise to the statue