may please the court multiplied when mr johnson's current civil rights action was dismissed on the basis that it was precluded by two earlier cases filed when he was a president pro se and entirely  this circuit has repeatedly bill that it is necessarily an abuse of discretion if a district court bases its ruling on an erroneous view of the law here the district court based his ruling on three erroneous damages second extraordinary circumstances do not need to provide evidence or support for the claims made in the prior cases no link to prove of any claims is required  sixty b six nor did the district court cite any case for that proposition and third the filing of prior cases does not not disqualify rule sixty really the rule accepts the  were to find in your favor on the sixty's the sex issue how does that play out in terms of the other orders that are before us on appeal and i guess i would ask two motion under the right legal framework i'll just stop with that question first and go from there well your daughter's i think that i think that you can decide here i think that it's fully something that this court can review other words when the spillover effect if any as it relates to the education on the sixty be set well i think that it would depend upon what your orders if you if you remain with direction to enter the sixty close and so your prior cases i mean the twelve the six grounds at least the principle ground was that that that the action was precluded the actions the one thousand nine hundred one action the one hundred ninety two action where they had a claim precludes t effect so if it and your argument to the contrary is that they don't have such an effect and so if if if if we were to say all right you're fine you're right that they don't have a claim for clues of the fact we can do that for the question questions mr johnson circumstances are extraordinary he spent twenty four years in prison he was at all times actually innocent the order of actual innocence thoroughly impeaches the orders entered in both the ninety one and ninety two actions and accordingly is directly related to the operative facts of both actions both prior judgments were based on the assertion that mr johnson was overwhelmingly guilty but we know he was actually incent there is no other reported case in wyoming history in which a person was convicted of a crime spent even one day in prison and then was released with an order of feel however additional grounds for a verse on the novo review result from the district court's rulings on the sixty six motions in two principal respects the initial and fundamental probably six error was that the district court exceeded the court's boundaries this court danbury's ridgwell be six review this court is always recognize it will be six dismissal this extreme because it ends a case before there's any opportunity to look at any facts so the district respect broker's choice says that if materials outside the pleadings are presented as a general rule they must be excluded or the motion converted to fifty six to or reference to the point in resolving the claim preclusion issue which is an issue that arises in the context of the twenty seventeen action it needed to look at its take judicial notice of his prior the court records and our law allows for that including a case i authored hedley which specifically speaks to exactly what happened here well your honor the tenth circuit decisions say that yes  can take judicial notice of please but it cannot then it is only to the existence of the court files rather than to their to their contents and not to prove the truth of the what happened in those proceedings whether or not i classes were found whether or not i classes were humility of whether they were straining as the there were those those materials before the court were then view and considered to make the decision that judge schedules decision that in fact there were the elements of preclusion were satisfied and was eventually why didn't they necessarily have to be considered in order to do that i mean how is one going to go about this exercise without being able to know exactly what issues were  play and the matters that were dealt with and these are actions i mean you know it is entirely immaterial to the claim preclusion determination that you do that i agree completely with your honor and i think that those are complete  six you convert to rule fifty six and if you don't convert to route fifty six at that point you have erred and well what would be in that circumstance the added value of converting to all fifty six number one is that just sort of as a practical matter i don't see what the difference would be i mean this is not a situation where you're going to relive again what the facts were that were at play in the one nine hundred ninety one in ninety two action and so what difference does it make you have you have a public record that shows what what the court relied upon and what and how things were transpired at that point you the public record reflects part of that what what is not reflected for instance is the testimony of mr johnson if there is no nothing in the record that talks about the fact that what happened to him in even those proceedings that he did have counsel what what what impediments did that have for him the to determine whether or not there's full and fair opportunity to litigate is a fact based inquiry and you do that under rule fifty six  where where where then mr johnson has an opportunity to come in and present his facts in this particular case you are the the district court reached its decision in regard to the the you objected on august twenty fourth you say your to convert summary judgment we did and then august twenty fourth was after or before the court actually it was after your well what is that get you it is the obligation of the district court to also follow the rules and not not then to violate those principles of roger's choice and  they please the court my name is justin dory a with the wyoming attorney general's office and i'm representing defendants pierce and spencer and stanford in their individual capacities will be sharing time today with counsel for the city of cheyenne the plaintiffs are asking th johnson was permitted to litigate civil rights cases against these defendants and if the roles were reversed and he had won those prior cases defendants had paid and were now coming back asking for their money mr johnson would be arguing race to  it were he he lost those cases in the district court was right to preclude another round of litigating over regarding the same parties in the same transaction or events the district court from the prior court cases were presented by the defendants in making their showing on the three elements it was up it was their opportunity in response to that motion to dismiss to come forward with other court records that might show that lack of full and fair opportunity to litigate is there any place in your briefing that you a ledge that they waived anything by raising musicians in the fifty nine and sixty contests to my knowledge she did so it seems to me that ship is gone difference on that factor certainly there were differences in procedure and the levels of litigation right well ninety two he was his claim was dismissed as frivolous and one nine hundred fifteen right that's correct and we held before internal or informal popper's that use where there are separate categories for dismissal from ground or failure to state a claim and so then i'm probably spring this on you but if you look at the restatement of judgments suggests that when you have alternative grounds and one of them is based on nine hundred fifteen that the case wasn't fully and fairly litigated well i'm afraid i don't have that legally in factually invent at the time i have the statute were different that you could be dismissed if the allegation of poverty was untrue if the complaint was malicious or if it was frivolous so that's on the  dismissed because the facts were fanciful and delusional the seventh circuit i believe reversed and the supreme court took it up to decide whether that really is a valid basis to dismiss is frivolous it found that it was and in making that discussion the court understanding and do you do you how do you think it plays out the plaintiff's argument that that the heck the humphrey case basically made it to where in ninety two he didn't have a case decided was decided you know i don't think i think he just records right and finding heck didn't automatically apply to bar the case i think this court has joined that camp of circuit courts that have found heck is in jurisdiction if it applies to a case it needs to be applied by someone the cork parties typically is the defense but the heck opinion itself says courts need to decide whether the heck are applies that is whether if the plaintiff a successful in their civil rights claims it would necessarily invalidate their criminal conviction if it wouldn't the claim could go forward so to make that determination or the defense needs to be raised and it needs to be assessed  i think what in example of how you might not get there but still rule on the merits of the cases you know with this horse decision and your own versity of late when i believe in two thousand and four  are there the dismissal below is based on qualified immunity grounds and the district court took the extra step to say i think heck would also bar this case but this court order of you said well if we just miss on qualified immunity grounds it's with prejudice so that has more weight that if we dismiss based on hackett's a dismissal without prejudice we think this case can be done with so let's analyze qualified immunity and i don't i've never seen a rule of law that said you have to start with the head question that you can't first go to an element of the let's say malicious prosecution and first determine whether the defendant's conduct caused the conviction whether there was probable cause to support the conviction whether and i'm talking about the ninety two cases from in particular which seemed to be still alive at the time of the decision right and so yes i do agree with you it wasn't raised by us mr johnson or the court and he didn't try to raise it by petitioning to the united states supreme court so for those reasons heck really did come into play in the ninety ninety one case in one thousand nine hundred case and when we compare those to the present loss you are dealing with the same parties same event as pursuit of dismissals with prejudice which is generally understood as being on the merits that comports with rule forty one b of the civil procedure rules which say i'm struggling with the nine hundred ninety one action why he didn't get why you got a full and fair that time in district court anyway and the district or blew by the and dealt with it so how did he get a full and fair opportunity litigate in that contest when we i think the united states supreme it generally is a notice an opportunity to be heard nine hundred eighty three and i'm sorry if nine hundred eighty three entitles you to a jury trial right in your denied you're right you're saying you're not getting you're getting the minimum that's required to  material that it really came down to just a legal question we can agree on this about that is the real issue here is what does it mean as a matter of law to this amount of coercion and on top of that was any of this material to his conviction or was it harmless i think that's where the court decided there's i don't see an issue here where the jury needs to come in and weigh and make a credibility call or decides so is it your position that this is a case that would be akin to a summary judgment hearing where the court allowed some parties to put on some evidence yes we'd be arguing substance or perform in this case obviously it's unusual procedural proceedings it was called  called the police when mislay go was screaming and it appeared someone was breaking into her home officers took photographs officers protected or obtained evidence including d n a evidence they preserve the evidence and that's the evidence that ultimately led in mr johnson being released there was no evidence available at the time of the shah in officers were involved in this case it would have shown that mr johnson was actually innocent clearly the information available showed that probable cause the briefing fighting seems to be over the issue preclusion instance but i think the threshold issue as to where the allegations state a claim are paramount here well for the city of  the the allegations as i understand them as that mr johnson is alleging that you can have a few seconds but don't wind up too much or thank you right as i understand m johnson is asserting that some photographs may have been taken inside the house that could potentially be the scope authority but certainly he thought was a fact to show that they could be in the context of this particular case where we have the victim of the car and he's pointing out mr johnson and saying he's the person who actually committed the crime over the time i appreciate that and thank you for let me finish that thank you are you still pursuing your argument or rule sixty before were you abandon