i'm happy to answer questions about all of them be given my limited time i'd like to focus this court's attention on two issues the first is the dismissal of of person from this case for lack of service and the second is the district courts the nile of mr clemens as motion requests the appointment of counsel just serve serve her thereby entitling into an extension of the time to serve process under federal rule of civil procedure for i am so so maybe you can just jump in and help me with the thing that's hindering me to come out your way on this issue which is that i guess we have that prior case the name of course i'm blinking would that put it yes thank you that interpret an older albeit an older version of the rule but it said very clearly that  you do have to make the request right and so your position i gather has to be that the amendment that occurred after gaudet was sufficiently clear that it that it intended to overrule that a statute that's an intervening higher authority that requires this court to consider its priory evaluate its prior decisions in light of the amended text ok but but but isn't it kind of like the same don't we haven't we adopted the same standard that we did in miller for intervening court authority where we have to say ok we have a prior decision in light of this new intervening authority are the two basically clearly are irreconcilable and i guess that's where i have some difficulty because i look at the new i look at the old rule and the old rules crystal clear that you had to make the requests right i look at the new rule and i don't i don't know actually i have no idea if the mended language was intended to deceive discard the request requirement or if it was intended to prior version of the rule which i have in front of me conditions the marshals obligation to serve process in three different categories of cases at the request of the party secret service but the amended version of the statute says that the court must order request isn't that the problem with the rule doesn't seem to clarify that well again your honor i think i think the the prior version of the rule elicit listen out three different categories of cases in which when somebody requested process must be served including i have cases the rules then amended it kind of bifurcates that that requesting where it says the district court retains the discretion to appoint service of process at the request of the party but then the second sentence says without referencing it all a request requirement that the court must order service and i have cases the the actual nine hundred ninety three amendments discussed this in some detail they say the court remains obligated to appoint a marshall in two categories of cases including i feel cases the court also retains the discretion to appoint a processor or a motion of the party so again the the amendments to the statute kind of indicate that the first sentence invokes the request requirement but the second is not related lior honor this court has a has an obligation to construe statutes consistently with a with each other when it is possible to do so as to the extent of the advisory committee notes  we've looked at a little bit again it's kind of indicate to be honest your honor that there never was a request requirement in the statute it says the court remains obligated to appoint a marshal or some other person effectuate service of summons in two classes of cases including i hold that i my point your honor is just that congress doesn't seem to have intended that contemplated kind of that the prior version had a request requirement was trying to amend the rule well i would have thought you would have answered that under our ninth circuit law with respect to i if in and pro se litigants that the court had some kind of responsibility to tell him that he ought to ask for it and the so my question is pleasant that satisfied here that the court asked him whether whether he would was willing to wait to sir well again like under under the plain text of the provisions we would submit that that mr combs never had to make a motion never had to make a request and in just about any one of these cases of course of course the plaintiff would request the service of process because financial limitations trying to coordinate within a prison to go out and get a process server all of that impose significant hurdles and the federal rules this court's decisions and ran talk about it about interpreting the rules in a way that that create procedural booby traps and we would submit that especially when the the plain language of the provision provide that that there is no request requirement that would just be imposing a procedural booby trap on on pro like to mention a little bit before i move on to the next issue the significance of the fact that this court interpreted in good at one thousand nine hundred fifteen d to not require a request at all because good at remains good law on that point because the rules not been amended and again that puts us in the situation where congress then deletes the river the language referencing a request and i have p cases whereas before it provided a situation that said you need to make a request in these three categories of cases it  bifurcates that any any ambiguity in that in that situation goes in favor of resolving the two statutes is consistently with each other and it is recognized in numerous cases that when congress leaves limiting language that you can presume they intended the change in meaning  moving on to the counsel issue which i'd like to discuss a little bit briefly i think it's important emphasize the facts of this case mr clemens was on crutches he was on a cane the prison recognized that he had a serious medical condition as as as shown by the fact that they let him see an outside medical treatment provider and shortly after getting into an argument with a caseworker in which he was protesting about his medical treatment he was moved to a top bunk despite the fact that he remained on  years and according the facts as alleged by mr clemens in the complaint to present case workers opposed the move to the bank on account of his medical condition these these were serious viable allegations of retaliation as the district court concluded when it allowed his claim to proceed to trial against hill and rejected the government's summary judgment arguments but because mr clemens didn't have a counsel he proceeded to trial without having been able to obtain discovery his so witnesses were himself and his mother and the sole exhibit that he marked for trial was the prisoner visitation log under pruitt vs mot which we cited in our brief the prejudice inquiry for motions to appoint counsel is whether the appointment of counsel reasonably could've helped the presentation and preparation of the case and we certainly would submit that that is the case that a counsel would have won and sought out those two employees who sought to oppose the bed the bed move that counsel would have sought out for their discovery including depositions and mr clemens never should have the dishwasher never should have the heat he filed the motion for counsel your honor right before summary judgment and it was the first time it was denied and then he got a trial with him and it was denied again and we would submit the summary judgment stage we still had all those other claims active the district court should of should have granted it and if there were two errors that the district court made the first is that under this court's decision will born versus the skoll their own the test for appointment of councils is is for extraordinary circumstances which inquiry and makes clear that both of those problems must be considered before reaching a decision likely to success and the ability to articulate his claims in light of the complexity of the issues involved the district court never considered the likely of success factor but then if we consider those two prongs together we certainly think the test was met unlikelihood of success that we cited the several cases or brief that discussed likely of success does not require success it requires questions serious enough to require litigation and we certainly would submit that the questions in this case were serious enough to really quire litigation as the district court itself concluded when it allowed his claim against hill to proceed to trial i as to the ability to articulate his claims in light of the complexities involved there were several complexities in this case there was an eery issue that impacted his claim against dr sanchez there was his claim against dressler involved a state law cause of action that incorporated as salmond's federal law there was the medical affidavit requirement of his medical malpractise claim which needed meant that mr clemens needed to get an expert witness to testify to medical malpractise and in open hearings before the district court that is your court actually asked the warden of the prison whether mr clemens could contact an outside doctor with without counsel or without a doctor or without a doctor willing to accept a collect call in the the the warden swirly said that he would not have had the opportunity without a counsel and without somebody willing to take a collect call in order to go and secure that witness the record was replete with numerous examples of mr clement struggling and we think the best example of that is when mr clemens try to get dr sanchez to sign an affidavit testifying to his own medical malpractise and in light of that we would we would submit that the district court certainly knew that the complexity issues involved affected mr cummins his ability articulate his claims and your argument on this point i guess i had assumed that it went mainly to the claim against hill was that the person who went to trial again and i assume that you were basically seeking reversal of the adverse jury verdict on the ground that he didn't have counsel there but that it didn't extend backward i gather you're saying that it actually does we think it would have been appropriate before the summary judgment stage given the serious facts in this case for the district court to have granted it and that that prejudice not only the presentation of the case but also his ability to get discovery well before the war yes your honor briefly before i sit down i want to just talk about the  both of which suffer from one error which is that the district court improperly reversed the summary judgment standard by granting summary judgment a grounds the district court never requested under rule fifty six c and the supreme court's decision  government had the initial burden of showing that there was no genuine issue of fact for trial and if it didn't meet that burden mr clemens was entitle to defeat the motion for summary judgment of this court's decision in nissan without producing anything and not only was that an error but we would submit that it's an error that can't be corrected on appeal because the government never moved for summary judgment on that basis mr clemens never had a reason to supplement the record to come forward and cite two reasons why the warden was aware of the retaliation and this court has no idea what evidence mr clemens could have offered in the record had he noticed the that the government was moving for summary judgment on the basis they move for under davis first or sherman singleton versus wolf this court has discussed in the supreme court is discussed that the reason why this court shouldn't address issues not addressed in the different district court typically is that people aren't surprised on appeal by issues upon which they've not had the opportunity to introduce evidence and we would submit that the record on those issues is not complete if if the government wants to move for summary judgment they're welcome to do so but rule fifty six in titles mr clemens to the opportunity to cite to any evidence and to supplement its a request to supplement the record if he feels the need to as to why there is a genuine issue of material fact before the claims are dismissed against him i'd like to reserve the rest of my time for both of us thank you thank you sooner for from counsel for the defendant good morning judge offered members of the court i'm randall gomer and i'm here representing the defendants in this case with the exception of mr carson i was going to ask are you not going to address the first i would rather spoke of my time on my defendants if that's ok with the court obviously it's an interesting academic exercise but since she's not my client i don't feel it's a bit you know who you are talking about burst burson the the service issue and i will inform the court i believe that she lives in bailey's now that's everything that retired and moved to move to be at least my only as my only knowledge of the first person she sent us a letter to indicate that she never wants us to represent her she has no plans to ever return to the united states so that's all i know about miss person  represented her in this case but you know what this bothers me because what i do when i get this from the city of new york and others back are sort of a country where the air is clear to order you to give the plaintiff his address that always works yeah well and that goes that goes to an issue this issue of his ability to effectively represent himself  because he doesn't know how do you know he's not in a position to to even say such a thing i mean i don't even wait just do this i can't stand this baloney that they don't represent them and therefore by but then that seems to me to also touch upon this issue is ability to represent himself which which i think permeates almost the whole under the general practice of united states district court in nevada whenever we do not represent someone or we will not accept service for the individual we do provide their last known address under seal to the court so that they are aware of that information  court can then determine whether or not to seek service obviously for safety and security concerns they don't want the address to be known as they did right here on this or as far as my as far as i have my understanding is that the last known maybe if you were a result of our a lawyer who knows but is that ok i'm in the ok is the is the end of the discussion when when the judge is holding it is and the address on which service could be made and otherwise the defendant the point of could that is not on the record i'd like to move on to the appointment of counsel if i could at this point your honor because as you said you believe that permeates the whole discussion in this case and i would like to first focus on with regard to and i'm not conceding that coun should have been provided here and it will get into that in a moment but i would like to address whether or not there should be a new trial for miss hill even if council were provided and in that respect i would like to point out that plaintiff has not provided this court with a copy the trial transcript with regard to what actually occurred at trial so i think it is difficult if it hasn't been waived to determine whether or not counsel would have been necessary or helpful at trial when we do not know what been part of the record on appeal and they didn't address anything with regard to what occurred at trial and their brief so i would argue that with regard to the extent that and when i look at this the questions that issue before the court i don't necessarily even see where the ask that i see a reference on one page in their brief i believe it's at page forty eight thirty six forty seven of their brief where they say and because of this the trial for hell should be remanded so i think that we are at an unfair i think that while the court certainly has access to those transcripts myself as a party does not have access to those transcripts unless i purchased that and i don't believe that i should be required to purchase something that hasn't been part of the representative record as plaintiff obligation to provide that as part of the record so that i can review it as they did with regard to the transcripts on the m s j as they did with regard to all the other transcripts but they didn't provide anything with regard to the actual trip because at the transcripts have to be ordered because they're not verbatim that the court reporter shorthand notes that have to be transcribed have to be transformed into a transcript unless the parties order that it's normally not done that's always been my experience is it different in your district if think your honor no i believe that is absolutely true and obviously and had money to provide transcripts of the proceedings the motion to dismiss proceedings the proceeding with regard to motion to compel all of those transcripts were provided so i would think that if it was important for the plaintiff to have another bite at the apple after the jury found against against him with regard to mr hill that that would that they were it was incumbent upon them to provide a transcript so that those informations could be what do you want us to know about what happened at the trial that suggests that counsel couldn't have made a difference because i guess my starting position is that if a judge looks at something that summary judgment says this was enough merit to get to a jury presumably there's something there and in almost every case i can't imagine that a counsel he didn't think it was needed he said that it was a fairly straightforward case and he had adequately represented himself up until that time that's down to page five of the supplemental record on appeal and then and and i would argue that this possibly goes to a waiver and forfeiture issue but again of course i realize that he's pro se judge but where says it seems like there's an allegation about an assignment to a bank and the reason for that assignment and what is at issue in this case and terms of retaliation and that doesn't appear to me to be particularly complicated he then goes on to ask mr clemens is there any reason why you couldn't with the amount of time prepare for a trial on november fourteenth mr clements you know i can prepare for it he didn't  going back to the supplemental excerpt on page six again mr clemens no i don't have anything else to do but to get on with it in start preparing for it clemens noted the court was giving him sufficient time to file jury instructions in questions and he responded to that sir i think another thing that's important here there was a mistrial it happened in november fourteenth not because of anything mr clemens that but because of a electrical issue that allowed a exhibit that had not been admitted to be shown to the jury so the judge didn't think that c again saw for the requests for counsel there was never a third request for counsel so i think that those are all very important facts to consider with regard to the likelihood of success i see that i have two minutes left so i'd like to move on to a couple other the court may have may have been eight may have may have not articulated that specific pronk directly it's clear that in the record we provided reason why we didn't think there was a likelihood of success i would like to discuss the nec supervision issue if i could briefly and the elements of negligent supervision under nevada law which is this supposed to dress for williams i think it applies to both your honor actually because  law nine four eight zero one eight five well that is an unpublished court of appeals and it does cite to nevada supreme court law and also quotes restatement second of agency as well as the vermont supreme court in the case hiring supervision or training must include as an element an underlying tort or wrong for act committed by the employee here we've gone through a trial and there's the nots and the jury found in favor of miss hill the record is clear that there is no underlying issue mr clemens was seen by medical at least of total of twenty four times over a one year period of time perhaps more than that that averages out about two times a month for a sprained ankle there's no however if we look at our three sixty six it appears as if the answer was actually done by mr person and that's what handwritten and her handwriting signed back and mr clemens signed it and it is the same exact answer that is in the computer generated term but let's assume because it's a summary doesn't standard that mr williams do let's look at the language of that well he also alleged that in the verified complaint searches which is certainly appropriate for consideration  summary judgment certainly but again i would point out that it appears as if he reversed himself and answer to question at the motion for summary judgment hearing which can be found it twenty six but let's assume for purposes that warding going to did receive that grievance it says you have received an accurate response at the informant level if you feel you have medical issues it is your responsibility to contact medical know once of s t c have steps that's almost assuming morton was answered it that was the response and in those twenty four medical appointments that he had there's no record anywhere that he ever asked medical for a buck and i see him way over the years like me to continue to answer or sit down you have work to to the first level and said medical the second level grievance as f c c medical has reviewed your medical claims within this treatment and has confirmed that you do not require a low restriction on crutches supposed to get up to the he had been moved to a cane at one point during this process so i spent several months on crutches and i'm tanya i don't know how i would get up as a as a right and i've had to climb stairs and i  vait heat mr clemens indicates that he had a makeshift steps and his cell that he had the hell out of him to get up to his bunk and again if the judge it's a very good question i'm not trying to believe but we don't see any emergency grievances i can't get in my bunk i can't get on my back there's no indication that he wasn't able to get in his bunk even though we we can we can hypothesize as to how he did that we don't see in the record it i mean mr clemens was clearly aware of how to file rights he did and we don't but they also expressly said in the tenth circuit i think explicitly referenced the blue that decision said the language of the ninth circuit relied on obviously this this court has to wait that itself but i just wanted to point out the three circuits have agreed with our our interpretation of the the issue on the transcript we did purchase the transcripts and we shared them with the government so mr rowe had had the full transcript you purchased them at our expense the reason we didn't put them in the record is we're not challenging that we're not saying that no reasonable jury would not have found in her favor we're saying that the assistance of counsel would have strengthened the case what we do have in the record and you are one forty five in your one forty six is that his sole witnesses were himself and his mother and that the sole exhibit he had was a prisoner visitation log and i think that stands on itself to kind of think of the many ways in which counsel could have effected the presentation of counsel which is the relevant prejudice inquiry for the  appointment of counsel the government acknowledged that the district court never mention the likely to success factor and as we set forward in our brief it's an it's a nonpresidential opinion in the circuit right versus department of corrections calls out the fact that the district  never discussed the likelihood of success factor in that that was an error that required reversal that it stated this correct standard but never applied it and that underscores a second problem with this issue beyond the the merits of  of the issue  on the on the merits of the issue i just wanted to briefly just mention that the info the there there is a grievance that is directly assigned to the warden and mr clements had a couple complaints bounced back because you have to attach an informal grievance to the formal grievance in the formal grievance that went before the warden and it was assigned to be williams there are direct complaints about the retaliation and prison regulations even though burris and signed it say that the that grievances must be reviewed investigated responded to by the warden they say that the warden can allow somebody else to help him formulate a response but that they have to be reviewed by him and all reasonable inferences had to have been drawn in mr clemens disfavor and we would submit least on that particular issue the district court didn't draw the reasonable inferences in his favor ok thank you thank you counsel and mr let me extend to you the same thanks that i did to prior counsel we're very grateful that your you and your firm are willing again soon this was you to a referral from our court on a pro bono basis thank you very much for doing that because just are you to submit