good morning your honors and mit please the court my name is hunter armor from pepperdine law school and i represent plaintiff appellant mr ellis at this time i would like to reserve four minutes of my time for rebuttal from my co counsel allison mather mr ellis was branded a sex offender restricted in his ability to earn good time credits and prevented from holding his kids hands but mr ellis was never tried let alone convicted of a sex offense instead prison officials labeled him a sex offender based on double hearsay contained within two police reports mr ellis stated a viable claim that he did not receive adequate process before these important liberty interests were deprived but the district court screened complaint at the screening stage before there was any factual development of the record before the state was even allowed or required to justify its position this is not how a pro se applicant should be treated we there for this court reversed the district court so that these important issues can be litigated at minimum mr ellis should be allowed to amend his complaint is in the our suffix classification simply a prison classification and not a liberty right that he has an interest in your honor while the are suffix is just a classification it comes with impacts on his liberty as a result of the our suffix mr ellis was deprived from being able to to have a constitutional right to contact this it with family your honor well we do believe there is a constitutional right the main issue is a place where we might believe that but i guess i'm a little more interested in the case  law what about th circuit cases danby castro gerber vehicle when they basically for close a constitutional right yes your honor in gerber v hickman the factual situation is very distinct is that was a situation involving artificial insemination and the actual holding of the case was nearly addressed that issue however the court did address the constitutional issue as well however there is a state created liberty interest in the ability to have contact visits with children as the supreme court established insanity connor the lack of ability to have contact is with children creates an atypical and significant hardship in relation to the ordinary instance of prison life and therefore the state created a liberty interest requires that there be certain due process procedural due process protections before this important liberty interest can be taken away while he was given notice right he was given notice that he's going to get this suffix are some facts classification and so he was able to challenge it at that time right yes your honor he was given notice however as this court stated before an inmate can be classified as a sex offender they should be allowed to call witnesses and present documentary evidence on their behalf mr ellis was not afforded the opportunity to be able to call witnesses in the trial or in the classification hearing i'm not sure where that is in the record he was in for close from doing that he could have put it in t no one said you may not do so your honor it is unclear from the record which just demonstrates that this should not have been dismissed at the screening stage however income in conversations with mr ellis he did state that he was foreclosed from being able to call witnesses his behalf furthermore this court has stated that in the disciplinary hearing context that prisoners should ordinarily be allowed in addition to calling witnesses and presenting documentary evidence inmates should also be allowed to confront adverse evidence he ellis could not meaningfully confront the adverse evidence against him he was not given the police reports until after the initial classification hearing with presenting prevented him from making a meaningful defense of his case furthermore he was not allowed to challenge the police because if we look at what your argument has been so far it's that he has violated his liberty is impacted by no contact visits and then the classification that has not  permitted him to get work is what you were saying work within the facility right in the same way yes ok so i agree with judge mchugh in that this court certainly has said that contact visits are not a liberty interest so if we assume that's not it we have to look for an injury other than stigmatisation because i know he's argued stigma just got the stigma up plus injury so is the injury then only that he couldn't get being his inability to earn good time credits as a result of his work custody designation which specifically goes to the ration of his confinement additionally mr ellis believes that the broad discretion of the parole officers would enable them to limit his liberty interest once released from prison in the same way as if you know i don't think there's stiction at this point but that kind of speculative claim for his release time is there you're on th highly speculative claim your honor while the does get to the future if this were allegedly sufficient factual clarity it would be something that was certainly impending in the us though the injury has not yet occurred it is intending to the point that it would not be to ensure institutional security and the safety of minor visitors this court should affirm the decision below for two reasons st mr ellis does not have a protected liberty interest in either his custodial classification or in contact visits with minors and nd even if the liberty interest were implicated mr ellis received all of the process that he was constitutionally due st i believe this court has noted that mr ellis does not have a protected liberty interest in his custody or classification which is all that the our step is the our suffix affects where mr ellis may be housed he may only he is required to be housed in the least a level two facility there's some argument in the briefs that because he's getting the r suffix classification while he's incarcerated that he'll be required to register as a sex offender when he gets out is there any automatic or military court in the regulations governing the our suffix make no mention of sex offender registration and the request for judicial notice that johnson submitted indicates that in the statement of reasons that the department recognizes that and are s not impose that sort of restriction and therefore as your honor pointed out this doesn't fall under neil versus shimoda there is only the classification itself there's what about the the aggregation of good time credits sentence was not affected by the imposition of the r suffix additionally in looking at again the regulation that outlines what the are suffix is and what the implications of having an ar suffix affixed are there is no indication that the w itself is limited and as your honor pointed out to the extent that it is it's highly it would be highly speculative further inmates to not have any protected liberty interest in an inmate job while incarcerated so still that would be insufficient under neil i can't have a good oh i'm sorry i couldn't figure out what work he'd be limited in because if it's just that he can't have contact with minors what work in the person would have him in contact with minors is there such a position i'm unclear as to that several months later at california men's colony is when the visiting restriction was imposed and mr ellis to be clear is not denied visitation with minors he has not denied visitation with his minor children he simply cannot touch minors because within the eighteen months before he arrived in see v c r s custody he was arrested for attempted rape of a minor and priest on that prison officials reasonably determined that mr ellis poses a risk to the safety of minors in contact in contact visiting and as the supreme court and this court has noted prison prison officials have a valid interest in protecting child visitors from exposure to sexual and other misconduct which is what prison officials are doing here even if this court were to conclude that meal vs ship shimoda did apply that somehow the classification plus had been satisfied mr ellis still received all of the process that he was constitutionally do due process requires two minimum elements be met and those are notice and an opportunity to be heard and the record before the district court demonstrated that mr ellis received both of those things mr ellis received seventy two written notice before the hearing where the r suffix was affixed and he received seventy two hours written notice before the hearing where his visitation received the restrictions on his visiting privileges were limited mr ellis also received notice  advance of the hearing where the r suffix was to be imposed of what the committee's intended action was the record demonstrates that mr ellis attended and participated in both of those hearings is there anything in the record that says he was informed that he from those committee hearings and nowhere in either of those statements is there an indication mr ellis attempted to call witnesses or was precluded that it but still all that is he was not required to have the opportunity to call and cross examine witnesses in neil the situation was different in mino there and in may classified as a sex offender was required to complete a mandatory sex offender treatment program in order to even be eligible for parole and in that circumstance this court concluded that it was reasonable that an inmate be permitted to call witnesses but here that's not what's it that's not what is at stake and inmates are not inherently have a liberty hawaii when he was coming out of the of of the treatment program is that the one yes your ok so then and in that case he was entitle to call people in order to determine whether he has successfully completed the program right yes you're right and that would be the case if mr ellis were being disciplined if his sentence were being lengthened if good time credits that he had earned were being taken away if his eligibility for parole were being limited then mr ellis would be entitled to call witnesses here that's not the case it's simply that his visiting restrictions with minors are limited to non contact mr ellis can see minors he can visit with them he can speak to them he simply can't touch them and he can still have contact visits with all other visitors the simply is not an atypical and significant hardship in prison life mr ellis receives far more visits visiting privileges than inmates and administrative segregation would have been so it he cannot meet the atypical and significant hardship problem to show that such a liberty interest are met and the record was clear that mr ellis received notice advance written notice as well as an opportunity to be heard on these issues  also is required to have classification committee hearings once a year so mr ellis can reraise this issue he could present new information to a classification committee explaining why this restriction should be lifted and if the restriction were not lifted mr ellis still has the opportunity to appeal which the record shows he did here because mr ellis received all of the process that you are constitutionally do regardless of whether there is a liberty interest implicated in the district court properly screen mr ellis this complaint he was given two opportunities to cure these defects after he was given two opportunities to plead facts sufficient even liberally construed to state a claim and even after the defects in his complaint original complaint were pointed out to him he was unable to cure those defects and therefore denying further leave to him and was appropriate for those reasons we asked that this court affirm thank you you have four minutes for rebuttal can we put four minutes please court my name is allison mathur and i also represent the plaintiff appellant mr ellis unless this court has a specific question i would like to begin by addressing the fact that all of the state's arguments assume facts that are not in a record we don't have a fully developed record because this was dismissed at the screening stage before mr ellis was given the opportunity to have the record fully developed and so because mr ellis is a pro se litigant the court should bend over backwards to afford him his right to bring his claims forward before the court i agree with that however there is no reason to do that say let's take the case of the th amendment and the claimed right  with respect to his classification are all of our case law for closes that so i'm not sure how any amendment would be anything other than futile perhaps you can comment on that yes your honor the  claim or the other claims that you mentioned that may be foreclosed if this court sees that  there are other claims that mr ellis has brought forward and that the deal with the due process issues that were mentioned by opposing counsel and my counsel before that there are liberty interest sufficient to state a claim and that the process afforded was process your honor is that mr ellis was branded a sex offender and there are attendant consequences to that whether they're direct or indirect it was all based on the same decision with the same evidence and using that evidence that is inherently infirm as police reports containing double hearsay statements without giving mr ellis the opportunity to call witnesses or confront perhaps even the officer who wrote the reports deprived him of due process because it is such a strong stigma as this court did recognize that neal being classified as a sex offender in prison is no small no small thing and so to have that in addition to the other consequences such as loss of contact his attention or the good time credits issue that mr ellis could further flesh out if given leave to him and that would say to claim that is not futile your honor thank you i think you and so because mr ellis is a procedure litigant he should be given at minimum leave to him and he's not asking for leave him an ad nauseum simply one second chance after being appointed counsel counsel has been able to identify some areas where you could further allege facts to support his claims and so with that we submit thank you your honors thank you their case just argued ellis versus johnson is submitted i would like to think pepperdine university  participation in the pro bono program to your supervising attorney mr rosen and also to mr armor and ms matters and also thank the state for its argument as well next case for argument united