getting what you're saying ok so why don't you start again but one of you tell me this is your point that the three strikes rule should not apply because it is imminent danger of serious injury and that's a real concentrat there are no three strikes the district no strikes or other not three strikes well we would say there are no strikes one of the strikes or one of the just missiles that the district court counted as a strike was dismissed under had versus humphrey one of the issues in this case which i'll get to after these threshold issues is that a dismissal under hackers of some prey should not be counted as a strike that's one two of the dismiss which one is that that's the first one case that was brought in two thousand i don't have the name of it in my notes but it's the case that begins with zero nine i had them written down under their numbers type relief not not in one nine hundred eighty three type claim that the prison what a geisha and reform act is intended to cover so for some of the reasons reasons that were discussed in the prior matter those should be twelve old washington versus city of los angeles oh the district court itself noted it was dismissing it for lack of jurisdiction under younger so that's not right and those are the four veterans administration the tenth circuit you've got and rate jones in d c circuit and hamilton versus lyons in the fifth circuit and each of them have concluded that act dismissals may constitute strikes the reasoning is a little different in each one but but if you correctly you are saying that they don't and can't constitute strikes can you address why these other circuits are wrong in their determination yes those other circuits as far as can be seen in the opinions did not really analyze or just address or discuss the issue they just concluded that heck dismissal is a dismissal for failure to state a claim because heck imposed and the requirement that the conviction be set aside as an element of the nine hundred eighty three cars about action but a closer reading of hack shows that's not what was happening and had  for several reasons one is straight from the language of the heck opinion itself it repeatedly says that a nine hundred eighty three claim that is for damages that is brought before the conviction has been set aside is jurisdiction of court or power given to the court to adjudicate the controversy that's the way that the hack opinion itself characterizes the dismissal so and there's other language in hack that makes it seem like a jurisdictional concept the court said the cause of action has not yet accrued does not exist those seem to be referring to a rightness concept which is jurisdictional as well in addition hack was simply extend expanding the rule from private prize or versus rodriguez case into a damages context the prize or opinion really is couched more explicitly in terms of jurisdiction especially if you look at the dissent in that case it's really talking about how the court has no jurisdiction hundred nine hundred three to decide a case since since there are some challenging issues in the strikes department i was frankly  taken by this imminent danger of physical serious physical injury issue in your client's case what what case do you cite as being the closest to your client's situation for purposes are of our filed it also in andrea's the magistrate judge had given the the prisoner leave to amend to elaborate on the second situation i think of the lopez case talks about right it has a very pretty liberal approach to what the what needs to be alleged in this case mr washington alleged in his complaint that he had been hurt you know fall and was passage of over one month and then he talked about a second fall how how long a time period occurred between these two instances between the two incidents discussed in the complaint i believe it's about a month but the eminent danger issue goes only to the second incident which is in june he filed his complaint the next day after that and that's the concussion like symptoms they revert right now the complaint itself does not allege the concussion like symptoms because he filed his complaint either that day or the next day the concussion like symptoms became known within several other days after that but there was about what serious injury is  actually been put it in a straight of segregation i want to separate he filed the complaint was he taken to the emergency room for one day or two days ok so he he did get treatment he got treatment after he filed the complaint and the time period for assessing the imminent danger is the filing and the doctors medical facility said what about his in court concussion like symptoms well what's in the record is that's why we're not saying that that was the inappropriate medical treatment what was inappropriate was that as of the time he had filed the complaint he had simply been examined by a nurse he was told that no doctor would examine him because he was faking his symptoms and he was then put into administrative dummy in the field doesn't look after people for years why is this  your honor what what the facts before the court at this particular plant and appellant he alleges that he slipped and he fell he doesn't allege that he was unconscious that his speech was slurred that he had a lot of memory that he couldn't walk he was immediately taken to nurse told the nurse that he demanded to see a doctor but he told her to stop for him to stop and that has continued had exams gave him some pain medication put in a holding cell for an hour and then sent him back to house and at that point that is that is what you do for head injuries he got the head trauma checked out he was observed and he got pain medication was acknowledged during opposing counsel's argument two days later he went to the hospital and received the exact same medical treatment mr washington is what he's trying to do is disagree with the treatment or refuse the treatment and then claim him and it him in a danger and under those circumstances that doesn't give bribes rights to just because he doesn't agree with the treatment that  receives or he doesn't get treatment after he receives it so i gather it's the government's position that after the fall he got a perfectly appropriate treatment he may not have liked what he got he got the normal treatment and shortly thereafter within a while many's a day or something like that he was taken to hospital for m r i c t scan basically anything that a person outside of prison would have gotten to determine whether there was in fact a concussion is that the government's position correct your honor and the wall what's at issue is what the court knew or what was at issue at the time they filed the complaint what occurred afterwards just further supports i believe  that his treatment at the time of the injury which was within minutes i mean he's not alleging that he waited hours or days before receiving treatment was exactly what he received at the hospital and therefore nothing about what he received was inadequate minute you're saying that these other symptoms occurred after the district court heard because he filed the lawsuit the day after he slipped and fell the day after he received  cases do you believe constitute the three best if you will strikes true it does apply in this case from your perspective first of all i have the case numbers because that's kind of been going through but the first one is the heck issue which is nine three zero five two nine three zero five two to ten nine six four is a two thousand to claim is a strike doesn't that isn't that to some degree modified by what the court says about it so for example if it doesn't get blown out on twelve b six but it's in summary judgment in th court specifically said in heck that it was a nineteenth reaction that fails to invalidate a prior conviction fails to state a cognize of a claim he hasn't proven this element with this requirement which you country have have been a heck dismissed it's a strike district courts both in and out of the circuit have helped to strike and importantly enough district court in mr washington's underlying case dismissed  d that this should be considered the biggest case consider the form of the action yeah well i think what's also important to consider particularly in this second case is that mr washington this goes directly to the heart of the prison with addition reform that presently litigation reform act was designed to prevent frivolous lawsuits and mr washington we're not talking with the first writ of mandamus we're time with the second one he filed a month later that was identical to the first one he knew full well filing that second lawsuit same facts same arguments same everything knowing that it was going to be dismissed and with no regard for the resources that it would require on the courts and  and so forth he filed this lawsuit which directly goes to the frivolousness maliciousness that the prison litigation reform act is designed to prevent and to stop so that's the same argument for both the writ of mandamus argument nine sixty four and seven four two nine which was the second one thousand nine hundred three cause of action again mr washington about a month or two after files an identical virtually identical i believe you added a defendant to nine hundred eighty three action despite the fact that it had been already believe for the two thousand and twelve distress dismissal the court dismissed it under younger but significantly also checked the frivolous malicious and fails to state a claim box as well as this may constitute a strike so i think it was nap the court nap said specifically thank you your honors i just have a few points to respond on the imminent danger this court has held the plaintiff need only state a plausible allegation of imminent danger he also should be allowed leave to a end if there's any possible possibility that he could elaborate but we have counsel how does that work i mean we in the reality we got these allegations some of which came up after the district court had should all be treated with policy towards liberal standards he alleged physical incident where he was hurt that's that's in the complaint he was hurt and he was treated by a nurse he told him he could not see a doctor because he was fake but he did see a doctor he went to a hospital that had i think he's gay and he got an m r i i did not know i just talking practically how are we supposed to deal with this thing of you like it the face of complaint some of his allegations that you feel are most important now are not in there you want to construe it liberally on the other hand the government says well when we you know he wanted to go to the hospital he didn't go to the hospital and here's what happened you're suggesting we consider what he didn't allege in the complaint because he's a prisoner and we construe it liberally but we don't want to consider what the state actually did in connection with taking him to the hospital well the standard t for evaluating the imminent danger is the date the time when the complaint is filed and when the complaint was filed he had not seen a doctor he had not been transported by i am in a nurse he got all his various treatment is aggressive with her he got the same medication he ultimately got hospital so what's wrong with that but up there was another a problem that he ultimately was it was determined that he needed to go to the hospital so the state of affairs when he filed the complaint is he was a person that needed to go to the hospital was asking for a doctor to see them and was being told he was faking it and was actually written up with an accusation of creating a fight his murders his complaint that got him to the hospital occurred know he was complaining all the time but it wasn't in the complaint that what got him to the hospital if i understand it correctly was something that he changed in terms of the allegation is that wrong it's that his face welled up after the next day at no could i just briefly address some of the other points on the other than the imminent danger on the neither one of the mandamus petitions would qualify as a strike the two thousand and twelve case the district court checked the box that said it has no jurisdiction it was dismissing the case on their younger which while not technically a jurisdictional doctrine this court in canada tele case said it's essentially jurisdiction so i submit a case dismissed under younger is also a case that's  strikes but in the context of a question of whether the defendant had waived the right to raise a heck defense and a number of courts and other circuits have treated a heck he of subject matter jurisdiction type thank you very much