are very grateful as a court for advocates to take their valuable time to help the people who need that help so thank you for your systems and your honor to your home base new york your honor wow and how did you find out of the case most egregiously at trial miss clinton appear prepared to present her claim that officer cooper retaliated against her by failing to honor a medical order to provide her with items in retaliation for her filing of grievances including a report that she was a rape victim however as soon as she began to present that argument the district court cut her off excused the jury and for mr clinton that quote retaliation as applied to this defendant does not apply now although the record was certainly a lengthy one and the confusion by the district court was understandable that was a plain error the summary judgment brief the miss clinton submitted plainly urged that officer cooper should be held liable for retaliating against her for the st amendment the magistrate judge in considering that claim construed it as a st amendment claim and those findings the recommendations were adopted in full by judge carlton who is the previous judge before judge mendez was assigned after that claim survive summary judge yes or i mean just ask you on overall basis are you also claiming that the grant of summary judgment in favor of the scientists should also be reversed that's our position yes although we believe the court is better focused on the claims against the right the other is i get i get your point those are much clearer but with respect to  ces what's your best argument that that summary judgment should be reversed our best argument is that the complaint fairly presented the santa has had place turned protective custody and the record shows that the valid basis under which she was placed in protective custody or and minister of segregation was false even by the san should have and in that case i think segregation was also at issue if the placement segregation was merely pretextual and it was done as a as an attempt to intimidate or silence or stifle the plaintiffs that is enough to proceed under the st amendment here what we have in addition to the coming you refer to which by the way she'd be taken nearly as her own personal view rather than for example the view of a penal logical expert a party on what was necessary in her particular case but it isn't that we have is the actual admission of segregated segregation form which said that she was viewed as a threat to the safety and security of the institution but that's only because she was a rape victim who was attacked in a prison where there were racial tensions such that any sort of encounter between inmates could cause potentially even a riot correct correct me if i'm wrong and i have a lot of empathy for this woman but i so i understand this is a transgender woman and she was raped she goes to this new facility and this santas was fairly high up in the system makes a determination that at least he said for protection she understood that for her protection she's put in ministries they are gay for now she may have changed your mind after that but is that a pita logically i mean sadly in our pretty logical system people who are gender court ruled that the motion to dismiss stage that miss clinton had not alleged that the officer sure had participated in any retaliatory action but that it's wrong i'm and could you clarify for me what the conduct was that she is claiming was retaliatory and the part of officer sharer it's there's three separate allegations the st one is that officer sure threatened her into signing a forced at a station that her rapist was not her enemy he said according to the complaint that she did not sign she would be transferred and she would lose her ability to earn early release work credits so you're saying that he read by that very act here retaliated against her  for reporting the rape that's correct your honor and this court and brought him the christ said explicitly many decisions of the th circuit have said that the mere threat of an adverse action even if it is not followed through upon is enough to state an adverse action for purposes of a st man retaliation claim and complaint is far afield from the sort of conclusory allegations that don't withstand twamley the complaint says querulously that if that share ordered her to sign and if not she would be transferred ok that was nd what about yes with cooper it's the failure to honor chrono as that entitled miss clinton to a warm blanket and shoes and that he did so because she filed grievances and including her report of rape now the reason she needed that blanket in the shoes is because she alleges that officer dixon also in retaliation for her filing of grievances intentionally introduce frigid unsafe air into her cell during the winter and so what she alleges and it's really squarely presented in the complaint in our view is that cooper was aware of her grievances claim claims against dickson was an alleged failure to of soft administrative remedies not not that they had stated a claim that's are your own i was merely responding to judge schroeder explaining what the need for the or two if you read miss quinn's briefing on the motion to dismiss it's quite clear that she says that the grievance was not available to her as a practical matter that's enough as this court has stated many times accordion albino to i shift our focus just for a minute did the district court ever rule on clinton's initial motion to accept her handwritten diary i don't believe it did your honor and how it added  implicitly pleaded that element as to all of the various defendants in the case but we can and we think impute that i do believe it can be imputed or fairly inferred from what the allegations are  officer share the other two points that this couldn't last were retaliatory the other two actions or his participation in the retaliatory transfer from camp and i think i think that's fairly inferred from the complainant which recites a narrative the narrative is share threatened ms clinton into signing the what's called the non enemy cron o and if she didn't she would be punished in the complaints as although she in fear complied with that request she was quote still and indeed if the court does see fit we don't think the court needs to look to the prison diary in order to fight for ms clinton but if the court does do so it's quite polluted from the dire he that sure told this clinton expressly quote i've got to roll you up  before you leave could you talk about hooper short because that went to trial indeed your honor so you know as we've as we've said the retaliation claim against officer cooper was that he refused to honor those  says he expressed we asked her do you have a theory of the case under which he retaliated against you she said yes he said is that your view and she said yes and the state points to a later snippet of the transcript in which she said she would quote just do what is asked after the should court continue to question her about what evidence she intended to present our view is that should really be read as nothing more than what she viewed as in the session to what the district court had already determined which was that the retaliation claim was not in the case well save any time i'd love to think you are ok are good morning your honour's and they please the court deputy attorney general chaos for defendants st i will address how ms clinton abandoned her retaliation claim when she went to trial against officer cooper then i will address district court correctly granted summary judgment for it to santas incorrectly dismissed sure and dixon we were just talking about the trial that happened with clinton going against officer cooper and there was confusion initially about what claim was in play and i think the way that we look at this is that the district court did exactly the right thing after there was a mistake as to whether or not retaliation was in play the court didn't order retaliation was out instead the court did the right thing the court asked ms clinton to explain what her claim was at this point she started to describe that she had a retaliation claim the court then went on and asked her to explain what that retaliation claim was and the court was very clear and this is about your eleven again let's make sure the record is clear i'm not telling you what i want you to say he wanted ms clinton to explain what her claim was and she started to explain it there was some colloquy between the court and his clinton and eventually in response to a question that the court had about what her claim was tally ation she responded to be honest i can't even remember anymore after she said that that was credible that was that that was probably quite credible she said no but court and at that point we still don't have this instance where the court actually ordered her not to bring retaliation even after that even after she made that concession that she didn't know what her claim was the court at your th specifically said aware of that so after she says what we do obviously she's pro se how does that play into this particular case obviously a lot of different but in this case she goes to trial   is called equally with the judge didn't end well for her but she was pro se what flexibility in that situation i think the court below showed flexibility by expressing but twice that it was not ordering her out anything it was trying to figure out what she wanted to do but at the end of the day ms clinton is the master of her claim and if she wants to go to trial and wants to prove a civil rights violation against officer cooper the bare minimum you've got to do is present the evidence and she didn't even say that she knew what evidence she would present she said she didn't remember the court reminded her that it was what frank figure out what she wanted the court wasn't ordering her and then she percent this point it looks like everybody was confused there was definite confusion in the beginning there's no denying that but by the point where ms clinton said that she didn't know what her claim was and then she proceeded to go to trial and she didn't present any retaliation evidence so at that point she's made the decision to abandon her tally and claim she proceeded on deliberate indifferen instead of just questioning this approach say plaintive had looked at the record the judge would have seen the retaliation claim set forth in the prior pursuit things yes in the complain a person of the law as you indicate he did i think what the judge was trying to do at this point was to clear up what exactly she was planning on presenting at trial and she was able if she wanted to she could have presented retaliation evidence when she told the judge that she didn't remember any more that might have been an indication that she didn't have any or that she didn't know what she was going to say but at the district court did the appropriate thing when it gave her the opportunity to explain what her claim was and most importantly gave her the opportunity to go to trial they brought the jury back and she was allowed to present evidence there's no ruling that she couldn't bring in retaliation evidence she just didn't do it and it's not heard in dismissing her claim for failure to exhaust we think that as we understand we understand that the district court ruled on the exhaustion issue right but the st again argument over if we co retaliation claim against dixon this was at this point her rd opportunity to amend her complaint write her rd opportunity to her and then her complaint and she had received not one but two specific instructions from the district court that she needed to specifically allege the facts that undergirded her civil rights claims against these defendants she couldn't rely on generalisations she had to specifically say what each defendant did she had the instructions she got those instructions twice she just didn't do it the same issue applies with sergeant sure there's no statement of the elements of retaliation in the complaint against him and we've again had three opportunities to get here and this is also somewhat related to the senate sent the sanchez issue which just to clear up some but might have been confusion we had earlier th ifference if it happens that the evidence that was used to support the deliberate indifference claim which you're on to refer to the deposition testimony in effect even if she had properly made a retaliation claim in the complaint what she did and the evidence that was in the deliberate and different summary judgment motion the deposition testimony shows that there's no dispute that there was a legitimate pina logical interest for what happened to her she thought it was the right call following up on a question th head at the very beginning and there may be nothing in the record about this from just curious it's certainly not on common in cases where a lawyer goes to someone who can tell them about the law and what they would be waiving what they would not be waiving and things like that and i take it that that was not done in this case do you know that was offered this case i'm not aware of whether or not that was offered i want to address one point there is some brief discussion about the diary or the diaries or two in the record ones typed ones handwritten defendants would just reiterate that the diary neither version is an appropriate item to consider  as to whether they bolster the allegations in the complaint it's telling in the opening brief and even in the reply brief that there's so much reliance on the allegations in the not the allegations that the claims in the language in the diary diaries and we can't go outside the four corners the diary smart attached to the complaint they were incorporated by reference they were referred to and it there's just no reading that we can allow th extraneous documents to be considered when considering a motion to dismiss out you're not standby counsel you're stand up counsel i hope i hope i'm stand up so just a few points your honour's so just to respond to your question we looked at the docket and she did move she did that the district court misread the filings misread the record and determined as a matter of law there was no retaliation claim lives in the case and this was pure and simple error the state understood that there was a  pretrial submissions and what the dish court did was as soon as the issue or talisman was mentioned excuse the jury instructed ms clinton that retaliation as applied to this defendant does not apply so i don't think abandonment on these facts would would be in accordance with the solicitude that this court offers to pro se litigants in complying with the niceties of procedure and practice miss clinton under after being told there was no retaliation claim she did two things she raised magistrate judge callouses orders which expressly discussed the existence of the retaliation claim and she told the judge that her theory of the case included a retaliation element the fact that she later said she would quote just do what is asked i think is light years away from the kind of voluntary and intentional decision to abandon a claim a trial and i asked my colleagues do either of you have additional questions for accountable all right i think we're