mr williams asserted section one hundred eighty three claims relating to two discrete events one the defendant's actions in causing and responding to an alter cation between mr williams and another prisoner i'm having trouble hearing you can we turn up the volume a little bit please my apologies all closer to the mikes wrong mr williams claims relate to two discrete events first the defendant's actions in causing and responding to an alter cation between mr williams and another prisoner and second the defendant's denial of mr williams right to appear at a prison disciplinary hearing relating to that altar creation let me let me ask you about that part of it let's assume that he had a right to be at this hearing and that that right had been clearly established in other words the district judge was wrong in saying that qualified immunity applied plight here with respect to that i understand correctly that there was no violation ok following the yes i understand ok in what way was he prejudiced understand that he testified at his trial here in this case that he basically started a fight with this guy so if he should have had a hearing it would have testified the same way how is he was he prejudice he was prejudiced one in that the exclusion or the degrade of summary judgment on his due process claim you know affected his ability to plan and prepare that claim for a trial second there was an issue to be well he had a right to prepare for trial with that claim on the table and to present evidence relating to that due process claim it if he should have been given a hearing he wasn't given a hearing but if he had been given a hearing and he would have said i started a fight with the guy if he would have testified at the hearing a public invade the way he he testified that when the defendant opened the cellblock door while another inmate was another prisoner was unsecured outside of his cell that he did in fact instigate the altercation we also testified that he felt that he had that evidence and i don't think that he had to prove it in order to prevail on his due process claim that he that he wasn't given an opportunity to attend the hearing i don't think yes to prove that he in fact would have prevailed with it over i mean it does seem you don't think he has to prove prejudice in a due process think the prejudice your honor is that again he wasn't given the opportunity to to appear at all and to make his case i don't know that he has to show that it necessary that affirmatively bear the burden of showing that he would have been in fact prevailed on the claim i do think also that the evidence before the district court could support a claim that he would you know that he would have not necessarily been convicted of the offense of battery in the disciplinary hearing he would have at least had the opportunity to present his side of the story which again was that he felt that he under the circumstances had no no choice but to do so that the defendant's violation of prison policy and regulations put him in an unsafe situation in which he  necessarily government the same evidence relating to his claims of retaliation and excessive force against the defendant the only two claims that went to the jury were retaliation and excessive force a jury could have found that mr williams did not prove his claims that the defendant retaliated against him or that the defendant used excessive force but that your that same jury if presented with his due process claim could still have found that even if the situation was not created intentionally by the defendant and the defendant did not use excessive force that mr williams was nevertheless justified or at least excused in instigating the altered altercation because of the situation that he was that he found himself in and i think that evidence relating to his due process claim could you could have a verdict that found for mr williams on the due process claim i think consistent with the jury's verdict on the retaliation and the excessive force claims we were to disagree with you and say his proposed defense publican bay was really no defense at all not really a cognizable defense you don't have a right in prison to start a fight wouldn't help him is that the end of the story than if the court were to determine that he in fact had to show that he would have prevailed at his disciplinary hearing and that the testimony that mr williams gave it his discipline or at the at the trial itself foreclosed any possibility that he would prevail at his disciplinary hearing then yes i believe i believe he would lose on this i take it you're relying on a will first as mcdonnell that's correct your honor so is there anything in that opinion which would  in wolf wolf involved i believe a class action of prisoners challenging various aspects of the prison just when every process and wolf set out the you know what it perceived to be the bare constitutional minimums for that process among those where you know notice advance notice of hearing the right to call witnesses and a number of other things you know but address it with respect to this case here you're relying on the absence of a hearing or you're not yet not the absence of hearing there was a disciplinary hearing conducted were relying on the deprivation of mr williams as right or opportunity to have an opportunity to attend to that hearing he would tend to hear right or act and i take it you are you strongest case would compel most to reverse on the basis that the was denied a recognize right to attend the hearing so prior to september two thousand and six when the events at issue occurred you have you  both of which held that prison officials cannot categorically prohibit prisoners from calling witnesses that just when our hearings both of those again implicitly assume and require that the prisoner in fact be given a right to attend you have right versus enemy one nine hundred seventy eight decision just decided by a three judge panel of the northern district and some merely affirmed by the supreme court which this court has held is binding on it that expressly recognized that wolf gave prisoners the right to have an opportunity to attend the hearing prior to two thousand and six you also had four other circuits the second fifth sixth and eleventh that had all expressly stated to that wolf provides prisoners a due process to attend prison disciplinary hearings as well as the decision of the california supreme court now in its summary judgment ruling against mr williams the district court relied on two circuit cases that it said show that there was a split or some disagreement in the existing case law about whether a prisoner had a due process right to attend a disciplinary hearing at that time neither of those cases however is at all inconsistent with the idea that there is in fact that you're hearing such a right seven circuit decision and wheeler versus sims involved only the question of whether a prisoner who has refused to appear at a disciplinary hearing has in fact a due process right to provide a written statement and held that it did not have such a ri the second circuit's decision in francis versus kaufman considered only whether the prisoner has a right to be present during the testimony of his witnesses that that was not a constitutional right again that's not inconsistent with wolf and not inconsistent with the idea that wolf in fact grants a right to prisoners to attend prison disciplinary hearings based on based on that consensus of consensus of authority and in fact we're not aware of any case that in fact holds that wolf did not provide such you're right about that the district court erred as a matter of law and finding that the right to attend  prison disciplinary hearing was not clearly established as of september two thousand and six a white supremacist prison gang as well as evidence of mr williams general white supremacist beliefs courts of long recognize that that evidence is not categorically inadmissible gang affiliation evidence when relevant to an issue ad in the case isn't relevant to this particular case there's no this is all about gang affiliation within the prison is it not you know the fact that mr williams and mr powell the prisoners involved in the altercation were members of or validated as members of rival prison gangs was relevant in mr williams conceded that at the district court what mr williams sought to preclude was was the admission of evidence relating to the specific name of the prison gang that he had been validated as a member of which is the nazi low riders as opposed to other evidence that would suggest that that healed white supremacist beliefs into that and mr williams offered to stipulate that the two prisoners involved had been validated as members of rising rival prison gangs and that stipulation if accepted by the district were i think would have accomplished and would have served the any relevant purpose for which evidence relating had a tattoo that red white pride but that evidence wasn't connected to anything relevant in the case its only effect was to prejudice mr williams in the eyes of the jury and in a case like this where the credibility of the witnesses was paramount  that error is necessarily not harmless and mr williams is entitle to a new trial on those claims or reserve the rest of the time thank you is no error made at the district court level the district court put a lot of time and effort into the ruling on the motion for summary judgment and found that the right to personally attend the disciplinary hearing was not clearly established at the time that the hearing was held in  well because if you assume that you have to be present for example when other witnesses testify then you could find in a plea implicit right to personally attend well i mean world holds that inmate has the right to advance notice of the violation correct the right to call witnesses and present evidence correct how do you do that unless you're there well you could have witnesses testify without being present there are cases that have held that if the witness inmate was too disruptive to be personally present that the case ok that's the right to be present and also you can lose your right by your misbehavior but you're not misbehaving don't doesn't this imply that you have a right to be present to call witnesses and present evidence that's an implication right here that's what i'm asking you doesn't isn't that doesn't isn't implied by this some courts have made that implication some courts have not and we provided the citation to the northern district case of i don't know how to pronounce it you know no i y o n a i for the proposition that even at the time of that decision in march of twenty zero nine the northern district court found that the right to have an inmate personally present at a hearing was not clearly established and that the was not one of the five procedural requirements in wolf so even as late as twenty  we have a district court in the same position as judge wilkin our district court situation finding the same thing the judge will confound which was that there was you know clearly established right to well i don't know whether the wolf i don't think the wolf case says that the witness house to have the right to cross examine witnesses no no direct examination you can call witnesses one right how can you get testimony other witnesses if they're not examined he can't have an attorney and how does he get it with shows up as i'm a witness and that is that enough well i believe it is enough for your honor and i will even if he doesn't say a word because he has been asked a question you know they can talk to the witnesses prior to the witnesses appearance at the hearing in the witness can testify on behalf or contests going to ask the questions of the witness pardon me who is going to ask the questions of the witness i don't think it's necessary that someone ask questions of a witness if the witness comes to the hearing and makes a statement is their hearing officer there is a hearing officer there's a hearing officer ruled on in admissible evidence never having attended one of these else what is your position is to the issue of prejudice was brought up by silverman is there any showing that mr williams could have presented evidence at the hearing which would be different from that which he presented at the trial and therefore have justified a ruling it is favor at the hearing absolutely not your honor and the reason for that is that there was no testimony either at the disciplinary hearing the ruling was based on the reports provided by the correctional officers those reports are completely consistent with the testimony that mr williams provided at trial and in his deposition about how the attack on inmate how occurred there is nothing that mr williams has presented at any time in this case which would indicate any different factual situation so in other words assume that mr williams went to the disciplinary hearing his explanation would be the same he attacked the other inmate he could have stayed in his own cell nobody forced him to come out to a asserted provocation he could argue provocation i assume he argued at the trial his opinion that officer williams opened the door the evidence would have to be provided but the testimony that mr williams gave at the trial would necessarily be the same evidence that he gave would have given at the disciplinary has mr williams that mr williams reliance on the obery case of this circuit in two thousand and five is misplaced in holding he mr williams contends that it is the s supreme court case holds that the party seeking that a judgment be set aside due to an erroneous ruling has the burden of showing that prejudice resulted and mr williams has not made the necessary showing with respect to his claim that for whatever reason he was prejudiced by not being able to attend his hearing there's no evidence before this court or was there any evidence before the court at the district court level as to what prejudice if any has actually occurred even if this case were to be remanded on the issue of the due process claim the evidence would be the same the evidence would have been the same at the disciplinary hearing it was consistent with the evidence that was presented to the disciplinary hearing officer the evidence would be presented the same evidence would be presented in support of the due process claim that was presented in the trial court in support of the claim that my client was deliberately indifferent to mr william safety or that she retaliated against him there is nothing in the record to indicate that there were anything different that would have changed the result there is no evidence of any causation difference or any bad motive and that was the basis for a defense verdict so that the evidence of retaliation excessive force at the hearing and they viewed the evidence the only thing they did not have at the disciplinary hearing was mr williams direct testimony they did have all of the reports of the officers which in the way this this thing was the cells were open and close quite right that one was try to a jury those issues were tried to a jury correct the next issue is was his due process rights violated in not going to the hearing on the fact that whatever he said to the jury in the jury trial would have to be the same as what he said what he would have said if he had attended the he error i'd like to address the issue of the evidence of the gang affiliation my colleague neglected to mention very significant testimony by mr williams own expert in his rule twenty six report and that testimony in that report was the basis for the judge's initial ruling on the motion in limine this was before any evidence the trial had been introduced mr subi plaintiff mr williams the expert was of the opinion that the fact that mr williams belonged to the nazi low rider white supremacy gang and mr powell belonged to the black guerilla family gang was of particular significance to his opinion that officer williams was grossly negligent and failed to comply with protocol in opening the cell doors when mr powell was still outside of his cell it's not simply a matter of being two rival gangs even mr williams own expert or according to mr williams own expert that factor in the names and the characteristics of the two particular gangs that the inmates belong to made the situation even more agree just in the fact that mr williams wanted to refer to it as two rival gangs simply did not rise to the level of egregiousness that his own expert called into play and mr sube use report was the initial basis for the court's ruling on the motion in limine and the fact that the district court went to great lengths to limit the prejudice that arise out of the names of the gang's being heard by the jury and she took that into consideration she gave a limiting instruction she advised she  limited the photographs that could be used and she took the steps that were necessary in order to be able to limit the amount of prejudice it's not simply a matter of prejudice it's a matter of undue prejudice and there has been no showing here that mr williams was prejudiced by the introduction of that evidence mr williams argues that his credibility was a was potentially at issue as a result of that evidence he shows he has given us no evidence of what testimony he gave by which his credibility was questioned and i'm hank you it's what you start by clarifying perhaps judge silberman response to your question about you know if you found that there there was you know in fact a requirement that mr williams show that the disciplinary hearing outcome would have been different is that the end of the case i wanted to clarify that if in fact mr williams intitled to a new trial on the claims that were tried based on the district court's erroneous admission of evidence that harm described credibility i think that would also irrespective of what the court found about the prejudice issue on his due process claim require that he be given an opportunity to try that claim to the jury as well well what would have been different if you were at the trial at the hearing and had the opportunity to give his own testimony or call somebody what would be different i think the underlying facts that he testified to a trial would have to be the same since he is testifying truthfully to the district court but i think that testimony could have been expanded with additional facts about the context in the circumstances that were not necessarily the focus of his testimony at trial particularly because his due process claim in the entire issue relating to his disciplinary hearing was not before the court at that time mr williams trial counsel could well have determined that in order to show that he would have been prejudiced in connection with this disciplinary hearing could well have worked on eliciting additional testimony about the circumstances surrounding the incident not specific to defendant's conduct but specific to mr williams reaction to this issue situation circumstances that would mitigate and oregon you know potentially  excuse his response to the door being opened but because that claim was not before the district court and in fact mr williams trial counsel stipulated before trial that he could not reference his due process claim at all before the jury he didn't get a chance to put that  just to touch on the issue of gang affiliation evidence and the plaintiff's expert report seems their counsel is saying that because the district court found that this evidence the introduction of this evidence should be favorable to you so we're stuck with it in fact mr williams gets to you know determine his trial strategy and what in evidence to introduce his expert's expert report was not itself evidence at the trial when he sought to exclude that testimony mr williams should be given you know gets the opportunity to decide whether the probative value for him of that evidence is substantial weighed by the prejudicial effect thank you very much very well counsel the kids just argued will be submitted for decision