thank you may please the court according to hewitt periodic review is necessary to prevent administrative segregation from becoming a pretext for indefinite confinement for those reviews to accomplish that task the reviews have to be meaningful and i not pre determined their views must take into account subsequent information related to the appropriateness of confinement special housing unit the issue before this court today and whether reasonable jury could infer from the record could overcome mr potter's criminal history that is his reviews are pre determined there is enough record evidence to bring this case to a jury i think the whole thing would look like there reasonable jury could infer from the so that they think that it would make any difference to them and that there and actually one of them actually used the word punishment i think does it make a difference that those were leveled those were not the facility and that the i can't do a pre determined conclusion about mr proctors at sec status and for that reason there's nothing he could do to get out and in essence no matter what he put before them that he's been walking on water and you know the person in the facility that's not going to make it in your view is that the evidence is allowed of the evidence on that point allows the jury to conclude that even that wouldn't make any difference the thing that's correct i thought the point out a case in six jury now that's not this case our case is stronger mr proctors escape occurred twenty two years ago and he's been in solitary confinement for twenty two years his last assault seventeen years ago and are not an adequate justification choirs an assessment of an inmate's criminal history and on and i don't want i believe that that prison officials should have discretion to weigh that criminal history here i think a reasonable jury can infer that they did not please the court i want to get right to one factor that my friend on the other side has been discussing in analyzing the adequacy of these periodic reviews and that is mr proctors behavior in administrative segregation by from the other side references the found responsible for engaging in violent conduct and then in january of two thousand and twelve he was found responsible for possessing a weapon and those are just two of the eight misbehavior tickets in the record for mr proctor for the ad sic period so i recognise my opponent's arguments about the relevance of exemplary behavior and the like those arguments are hypothetical here because mister the record is not exemplary but in any event so are you are you making that argument because the various officials essentially said from the get go that there is nothing that this man could do to show that he could  change his physical status within the prison system i don't think that's quite an accurate reading of the record i don't think that's a fair reading of the record with respect with the prison official said and again as is one of your colleagues pointed out many of those were low level individuals at facility committee i'm not sure it would be fair in this context in a personal damages suit to impute those to bill in there and look player but in any event with mr ballmer and with mr le clear did they express justifiable those are justifiable justifiably skeptical predictions when they were asked those questions in deposition but what they were not were declarations that no matter what behavior was put before them at the sixty day intervals that behavior would t but for the past few years his conduct has been has been blemish free in an administrative segregation so it's the last few years it's been blemish free me isn't that the point of reference absolutely a point of reference and it's a point of reference of that the prison officials at each turn consider they at the front end they may not have given it much weight on the back and they obviously didn't you it is outcome determinative on the back end but what the procedural due process clause requires unlike substantive due process unlike perhaps the eighth amendment which has not been introduced by the opponents in this case the procedural due process clause only requires consideration and the reviews as camp could not a jury on this record and obviously you would dispute it mightily could not a jury on this record say well actually we agree we credit the testimony of the folks who say there's nothing you can do toget context not just those isolated depositions statements but the full record just like a jury would but my objection would be to your favor for clause the statements that that these individuals made including in some instances as my friend on the other side points out  there and look player was not that whatever behavior gets presented to them they wouldn't consider that they were justifiably skeptical predictions that no amount of simply behaving himself would be enough w many examples like this there are few things he can do above and beyond simple good behavior that might sway the reviewer's number one is except responsibility for some of the past instances of misconduct in a written document but he doesn't have the right to be interviewed does he doesn't have the right to be interviewed but he does have the right to submit an objection letter which as your honor said he has submitted at various turns that has been considered point by point fashion so that's number one is he can admit responsibility for certain of his actions which he which he has not already that's concretes pathway to release number one concrete pathway to release number two if you can take full advantage and be more receptive of the pilot incentive program that on occasion has been offered him the pilot incentive program is very important for shoot because what the pilot for ad said cheap because what pilot incentive program does is it gives the shoot in make the ad say inmate a chance to exhibit the chance to benefit from gradually drips and drabs of more freedom he gets to live he gets to exist in a slightly freer less confined environment more commissary purchases time eat food outside of his cell rec time outside of his telephone calls and the question is if you use is that if you use that appreciates those incentives and demonstrates that this isn't all speculative though right i mean we've got the deputy commissioner of claire saying that h summary judgment stage you may ultimately prevail but at this stage how can you prevail in other words you're you're raising you're saying all sorts of speculative thing which may turn out to be you may be able to flush them out but there is this spew and at this stage in the proceeding where we are procedurally how can we grant summary judgment we can grant summary judgment because of the over they may see he issue is whether they consider it on the front end and what the deposition testimony does not establish is that when put in front of them no matter how pessimistic they may be no matter how and i would say justifiably skeptical they may statements which again do not reflect any and tend not to consider evidence presented in fact the deposition of evidence just like the reviews themselves reflect that at the sixty day interval whatever evidence is presented by mr proctor is due to f considered by the reviewer and in the context of as a matter of law then we just we are to ignore various witnesses say for at least one witness statement but there's no what nothing you can do to get out so you're not to ignore it you are to take it predictions these pessimistic predictions that they made they also said virtually in heaven for but that each time the evidence is presented to them nevertheless they will consider it they will allow themselves to be surprise you that if you've got you've got poor sally wright who says that the and i quote the only thing that mr proctor could do that would convince him that proctor should be released to the general population is to get all you've got  diluted diluted is who said there is no amount of positive behavior that mr prout proctor could ever exhibit to change his opinion that proctor belonged in nadsat because quote he context is as not calling into question whether despite their their their pessimistic attitudes about what mr proctor might do in terms of general good behavior that he said it's again we haven't seen that recently as two thousand and twelve you got a ticket for weapons possession but they did not call into question the deposition testimony stating that whatever evidence is presented to that these reviewers will do to flee consider at each term they will so you're back to my the answer to my question is as a matter of war then we are to ignore what my two colleagues him or side because they just aren't aren't material to the consideration what don't put the word ignore sounds like a loaded question against me so i don't like that  are to view it in that that's right we are to view it in its proper kind of your eyes for a minute then i'll let you excuse me then we'll let you sit down but close your eyes for a minute and imagine what cross examination and then closing argument is going to look like in a trial in this case and tell me that no jury could be persuaded that this guy doesn't have a snowball's chance in hell of getting out because the process has as is closed to him the jury could be persuaded of that because of your last cla political chance in hell no because the process is closed is closed to him the process is not closed to him justifiably and certainly within their discretion some of these reviewers are deciding not to credit certain evidence to give less weight to certain evidence but what they are not doing what they are not doing at all is closing the process the process is about i would leave open they are giving this consideration on the front and the weight that they give to particular factors and obviously the outcome my friend on the other side dissatisfied with and i would be too but all the procedural due process clause requires as opposed to substantive due process which is in this case although not presented here today the eighth amendment also provides a substantive limiting principle of the for that but that hasn't been invoked by the plaintiffs all the procedural due process clause requires is that front end consideration which not only the deposition testimony but the reviews themselves conclusively statements made by the central office review committee and by the facility committee would be sufficient by their signing off on each review regarding behavior i think it's important to stress that that administrative segregation status should be reviewed every sixty body if they had mention as a part of the evidence you would be hard pressed to disappear and said that they had considered that and that was a factor that they considered then you'd be hard pressed to be making the argument you're making right  i can i think we contend that based on the record as it stands that it was trying to understand that this is a this is a hypothetical you could say yes or no and i understand the facts are different here but i think that prison