you requested simultaneous briefing on the constitutional issues raised in a balance informal brief and we challenge the statute as applied and defendants in the department of justice challenged it on it face but partially as a result of these conflicting briefings there are two basic agreements that go really to the heart of the problem with the district court's decision  appear in the briefs first all parties seem to agree that one nine hundred ninety seven if it's properly applied leaves all remedies other than compensatory damages intact secondly at least implicitly all parties seem to agree that if there are no remedies available for constitutional violations that at the very least raises serious constitutional concerns unfortunately the way the district court applied in one thousand nine hundred seventy it took away all of the plaintiff's remedies for their eighth amendment violation allegations they alleged plaintiffs alleged in this case that there were no physical injuries alleged in the conditions of confinement claims and therefore dismissed the claims out right under one thousand nine hundred seventy since that time this court decided in oliver v keller that one thousand nine hundred seven he applies only to compensatory damages and therefore here we are with the government the california government the federal government and this court all agreeing with appellant that punitive damages nominal damages injunctive relief and declaratory reef relief are all available however the district court dismissed the case you really don't need to reach any constitutional issues i think also you don't need to reach any constitution to tional issues because plaintiffs did in fact allege injuries and so there's simply just an error in applying nine hundred ninety seven at all even to limit compensatory damages i realize this is in this case but let's take the circumstance that would be involved in helling the second hand smoke sum which that which the supreme court statute and all over or not statute is vague qualitatively it points to the problem of what is a physical injury and what is an emotional injury in helling they were talking about fear but part of the fear is that there is some physical injury already if you're inhaling smoke and it the fact that inhaling it now creates something in your body that makes it more likely that you will have health problems as a result later so i think that's a very good example of where the physical mental injury distinction creates a serious problem on the face of one thousand nine hundred seventy and arguably and under helming theory you could say white supremacist or some something or in a situation where harm could occur but has not occurred i guess under the statute you would say only nominal damages are available you cannot probably wouldn't be available on that to two three hundred zero if that's true yes i believe it is i there's a significant amount of law that allows for limitation of and all over has been decided in a way that shows that the district court's decision was not correct and in dismissing the case we ask that the case the dismissal be reversed and these claims be allowed to move forward a court my name is thomas patterson and the deputy attorney general of the state of california and i represent the state officials in this action we're in an unusual posture here where it seems that on our last points were in violent agreement on what the constitutionality of the statute is we also contend that on the face of the statute it is constitutional as applied we agree that this court's  constitution as applied work as applied and according to this court's precedent and all over the teller the plaintiff should have been permitted to go forward on his nominal damages claim his a slight issue on one principle with this this court's precedent in another case called there'll be herrera interpreting another perfusion of the prison medication reform act specifically administrative exhaustion the language of each statute says specifically no action shall be brought and we interpret that provision to mean that the entire case should be dismissed if there is any improper claim in fact that the court is going to be applying all of our we agree that the case should have been allowed to go forward on those other claims and you say this case there are specific counts in the case district judge was involved in his gate keeping function and indicated that counts three and six there was sufficient and asked the state to respond to those and the state received a summary judgment i take it that the state believes that those should be affirmed yes your honor right now of course we don't have all this before us and it's a little  difficult for us to sort it out but we have to look at all of the counsel were involved and we gave an order entered an order indicating the state would have permission to comment i take it that this day has become involved only on three and six through the district court and one into through us so we can rule on these others but we wondered whether the state wanted to be heard even though you have not i mean we can ask for your written argument you don't have to make it today but we would like to know whether or not the state wants to be heard on the other issues some of them were dismissed with prejudice were dismissed with leave to a man then the judge entered an order we don't know what the judge intended to do with those that were dismissed without prejudice  there's no indication he's assessing a penalty against the defendant for failure to amend there's just an order and so it's sort of complicated we have to sort out the whole case and we want to find out from you whether the state wants to be involved in that or do you want us to slug it through our own or do you want to wait and ask you you're out of the state would be pleased to provide additional briefing if that's what the court would like precedent i think that the district court's decisions were well founded on those claims to the extent that the court has particular questions about any of the those dismissed claims those that were dismissed on the merits so to speak i would be pleased to answer them to the extent i'm able so what we have is the state relies on his brief encounters three and six on the summary judgment motion we've heard from your position on one  and you're quite willing to respond if we have any issues we need some help on on the others if the court direction of course your hon please the court deal with e mail or for the united states intervene or i think in light of what's going on here this morning the live constitutional issue in this case is actually quite narrow the only remaining challenge as i understand it is a challenge to the statute a vague is it's a claim that i was denied due process because i was required to do something or prohibited to do something in terms that were so unclear that i couldn't comply a claim that the statute is they claim that the process that telling type of plane well i think it depends on what the claim says i can imagine three different claims under howling i can imagine a claim i have cancer now which is clearly a physical injury you can clearly bring emotional harm associated with that even under section i can tell you s not a claim for mental or emotional injury it may be barred by howling or other principles of law if if the point of can't can't meet the standard of showing an unreasonable risk of harm such that society would tolerate judgment and was there are fifty six yes not to my knowledge but they they were seeking discovery and on nine twenty and september did in fact he did in fact submit to the court an affidavit talking about the discovery he wanted pacifica's the specific stuff you submitted he just submitted the discovery requests themselves and they can be found defendants in this case had asked him on september twenty sixth two thousand and two for an extension of time to respond to his discovery requests until november fourth and he granted that and then defendants filed their motion for summary judgment in october while those requests were still outstanding so i think that should be taken into consideration when considering whether or not see a request for a particular discovery that would help prove particular points as we know real fifty six f asks the nonmoving party to try to distinguish exactly what points to prove by the discovery he's asking for thank your honor thank you thank both sides for their argument think everyone for responding so quickly and the pro bono counsel tremendous work  sorry you're going to get paid and have and i'm sorry we can't do anything for you now and thanks to the united states and the state for responding so of course lou quickly so we misdirected our staff mr record the order and it got to you very late but the statute requires us to let you know and we were afraid this whole train to go off the tracks is only because of your cooperation that we're able to go forward more grateful for that yes thank you for stands