well you the first case on calendar shepherd versus  request this court reversed the district court for three reasons first your honor the supreme court's decision heck vs humphries does not bar appellant apart from bringing an excessive force claim against the first appellee a pelion even though he pleaded guilty to appellate because that claim does not necessarily conflict with his guilty plea in that case what if his claim is that the amount of force was excessive relative to a person who  that scenario it wouldn't be would necessary conflict as courts have looked at whether hack bars and excessive force claim based on whether it is a necessary conflict and the best way to look at that is whether the elements of the claim actually in conflict and here they're not there's no necessary conflict between an excessive force claim that has to prove malicious and sadistic use of force and extend a guilty plea in this case which simply requires proving that was in an institution at the same time he inflicted an injury on another person did the complaint allege that he did not attack no no your honor it did not but one thing that's worth keeping in mind here is when he he was pro se use pro se for through the first six years of this litigation and courts have recognized that heck is a particularly complex area of case law and the general presumption that we should construe pro se complaints liberally would apply doubly here in fact training and that's exactly what we think a pelleas are doing here should part has been represented when he filed this complaint he has no legal training what's the remedy that you're asking us to give you your honor there's several remedies we think that what we would prefer would be simply a reverse of the district court order and allow us to go to trial we think it appropriate limiting struction saying that mr shipyard cannot at trial in any way challenge is guilty plea challenge the facts under undermining his guilty plea would be there is no challenge whatsoever to his conviction what changes would be required in order to make that clear your honor this time being represented by counsel he would acknowledge the conviction for assault he would not challenge how the incident began and i think those would be the only real changes required we attached propose amended complaint to our motion for reconsideration below which we would we would so we would be ready to file that motion to file a motion to dismiss that's denied and moves to reconsider as i recall maybe i'm wrong and you crossed me or you you oppose that but don't cross move to amend right that's correct the judge denies the a g s motion but then on his own on his own then adopts the theory of the ag and dismisses the complaint on what grounds right that's that's correct or on he in his opinion judge t he abused his discretion in refusing to alternately allow you to amend which you move gunn reconsideration not cross when first confronted with the fact that this was going to happen look you're doing god's work because you're doing this pro but the question for me is the ultimately what do we look at to decide this your theory on your theory makes sense to me and in the sense of that you could be convicted of assault in the assaulting a correctional officer and then still have an eight the moment cl what happened to you after you were subdued ok the problem is his theory and his complaint is inconsistent with his with his conviction and the court simply exercised its discretion didn't lie you to a and you knew about this way back in two thousand and fourteen and didn't move to amend the complaint way back then why didn't you do it then your honor we didn't think there was good cause to to amend the complaint at that point if four years had passed  probably have is that i have to then say the judge to those of use discretion not allowing you to a man when it was clear that you knew two years earlier your honor our views there were we didn't think there was good cause to mend at that point  in terms of the delay at some point i mean we moved the moment we lost the motion we immediately moved for a consideration who promptly there and the other point i would just like to make is i think that even if the complaint and we don't acknowledge the complaint is necessarily inconsistent given he was pro se we filed it but if heck is fundamentally about making sure there aren't inconsistent educations and not unduly punishing a pro se claimant who moved in went to depositions can file the complaint without the assistance of counsel he's now made clear he's going to proceed to trial in such a way that does not call that a question he's still bound by rescue to kata he's still bound by judicial stoppel but he cannot challenge and will convicted of assaulting those two individuals and as a logical matter if this claim were to go forward against those two individuals it could not necessarily again that's the key term a supreme court to stress stress necessarily undermine that conviction his condition for assaulting appellee why is that because the amount of force that is appropriate would depend upon whether your client attacked officer and if he did then  u certainly be justified for some level of force to be brought to bear by other officers in the prison you know and i'm not sure no good go over there was i see a lot of time at literacy nor the red li really just about inconsistent educations from a single of ad and there's been case law not in this circuit the case law in other circuits where defendant has resisted arrest and assaulted one officer and then brought claim against multiple officers involved in the event course this is adams or says dryer and hill vs more from the tenth the ninth circuit respectively and the court there held ultimately that he could proceed against the individuals whom he did not plead guilty to assaulting and we're asking for the same remedy here because again heck is just a necessary conflict and in fact this court has you fill me in as a matter of curiosity what was going on in this case six use so your honor we which certain defendants were removed from the case i think the hearing officer in the superintendent were named and they were dismissed early on there were some very very limited disclosures but but before twenty four complete we had moved any deadline that would be can see truly of that when we when we came in we moved to open discovery to allow some limited discovery depositions of the correctional officers that sort of thing  we also moved to granted it was granted we also moved to allow expert discovery that was granted and if we were to to go back to the district court the only thing that's outstanding would be issue it but that's curious about this is that it's a twelve b and and twelve b does it seem to require it so so you had i mean you went in to oppose a motion to file a late application to dismiss the complaint which you won briefs his claim very clearly from his complaint very clearly from the exhibits in his complaint and very clearly from the deposition testimony in which he admits to perjury is that no force was acceptable this was a claim where three officers acting at the direction of a flip he is processing so he was arguing excessive force it's really very difficult for people to say that a certain amount of violence should have been used on me and you would agree that it is perfectly possible in these circumstances for the force to be excessive i mean if they sawed off his hand that would be excessive even if he was attacking officer that's certainly true but the complaint didn't allege any course of events even remotely like that nor nor did it nor did it exhibits and on the issue of solicitude because i think that that's an important concern here while there's solicitude this court has held that repeatedly even treats minutes numerous progeny that the courts can't read and in inconsistent facts they can't read in claims that are not sick claims or arguments that are not suggested by the submissions themselves and as this court explained in tracy or have to read in everything that is fairly suggested right and it and often judges exercise a little bit of creative imagination i think that's true and this court sort of discussed the amount of discretionary amount of solicitude in tracy versus fresh water and the very same sort of very same language although in tracy instead of in the case that opponents were referring to it is important it's that the point of inadvertently losing important rights because of their lack of legal training not to permit them to escape their facts and plaintiffs here played exactly the claim that he wanted to there's no question i think on this record on the complaints of the complaint itself or on from his later deposition that are facing the complaint or cite that he did not attack officer at it does not expressly deny that he attacked the officer at here but it does why can't the claim that is being pled be pursued without violating that because we don't to be violated if he said if his not not attacking officer a necessary part of his because his description of the attack included the natural reading that he did not attack officer and his exhibits make very clear that he did not attack office officer and the exhibits are incorporated into the complaint to that point if i could refer to the court this is jane one thousand it's page seven of the complaint he specifically he describes the incident as based on information and believe planned it was assaulted by defendants in orchestrated the assault on him that's a point can't why can't a district judge a trial if there were a trial a control for these for this condition and explain to the jury that  but the question is why would it be necessary because he's barred by collateral stopped from his prior conviction and it would be necessary but also be useful i'm not sure i  it would be useful because it would foreclose the danger that that the plaintiff would prevail in in a way that that would that would be inconsistent with suddenly becomes not armed and there are other inmates available to join in the assault the officers have to do a certain amount they have to do things to subdue that individual and remove him or her from the environment so that they themselves not are not subject to further injury substantial was just may have been justified in a restaurant in restraining they weren't arresting and they were restraining him after the assault would you agree i would have you talk to joe it's really two different cases in a way of peace and quite frankly to the state's benefit to be charged with having assault someone who assaulted a correctional officer in upstate new york well i would agree that it's too different it's certain that your district will do more than fifty percent of th of new york as it is many more many people former correctional officers are related record that's correct judge and i would agree that it's two two very distinctly different claims and if plaintiff had pleaded the second  second alternative claim then we wouldn't be here it wouldn't be barred but heck i get there here's my  just misses it without ever without ever saying anything to the plaintiff plaintiffs resisting an attempt to amend or to dismiss the complaint on the ground attack and saying this is only this is this is years after the fa and then suddenly loses anyhow because the judge really agrees with the theory but just denies your application but does it really seem fair to you well first point if you did put in a not maybe right on the complaint as alleged but that's not i mean we're talking about an of discretion here correct refusing to allow them to amend their complaint correct and in fact his opinion says how they could have amended the complaint you have stated the claim doesn't it does and so is his opinion itself contains an acknowledgment that he could have a legitimate complaint even if he applet guilty to the assault does not yes that's correct and then it but he denies the application after dismissing their complain so he knows that the complaint can be amended to state a legitimate claim but he denies the opportunity for that a formerly pro se inmate to him to who has now got pro bono counsel a very distinguished from the new yeah you think that's fair play that's put plaintiffs opposed the the heck issue on the merits in their response to the motion out of time and then they had it they did have a full they did not at that point proposed to amend the complaint to avoid it they didn't propose any of their other alternative remedies they wait seven months from that point for the decision to come out against them before any of that comes forward in their motion for reconsideration where they now have a full and fair opportunity to present all their arguments to use that word they they at least knew that this was a problem they'd known about it earlier and they should have crossed at the time they were confronted with your with your predecessors motions correct in at least some aspect of the problem was aware they were aware of almost as soon as they came onto the case at that status conference and if i could refer the court to page ninety seven of the j which is the transcript there this is one of what they said at the conference so although our client thinks that he did nothing wrong and that is our contention we could imagine a case in which the jury believes there was a mixture perhaps of right and wrong and then there would be a question of whether the response was appropriate there acknowledgement in there one that he's not in fact abandoning his assertion of innocence that point but also to that the alternative version this alternative claim isn't going to be consistent with what he's pleaded and maintained so far because it requires the jury to disbelieve him despite that no move is made to amend the complaint and the basis for which the dial was lack of diligence it does seem a bit unseemly sorry and so i think i may have lost the thread there for us i mean the thing is the thing is this complaint drafted by a process a was dismissed on a basis that didn't even occur to an experienced lawyer for years into a litigation during which time there was that there was discovery and your honor is absolutely right that we should have realized that problem earlier and we did the district court was right in saying that we didn't have a particularly i'm not saying you should have realized it earlier because i'm not sure there  i would respectfully disagree with that and i don't think that it's a close parsing of this complaint to read the case through to read in the claim that he made which is an unprovoked assault as a result of a conspiracy against him that he then maintains for six years including through a through summary judgment motion related to other folks through his own deposition where he admits to perjury i mean this court has held repeatedly that by summary judgment plaintiffs are supposed to have made their claims clear we're now six years into the case by the time that the court is denying we have to amend we're twelve years from the incident ten years from his conviction eight years into the case two and a half years since he obtained counsel and i agree with this is no way to run a thank you your honor there's been a lot of discussion here about whether the complaint adequately alleges excessive force even assuming as we must that you part assaulted officer at tio however whether the complaint adequately alleges excessive force assuming as we must that he assaulted officer a t it is fundamentally not a heck issue haeckel only bars claims if they are successful prosecution of that claim would necessarily imply the invalidity of a prior conviction the issue of whether he adequately pled excessive force is a question for a jury to determine or it's summary judgment as this court determined in griffin v christian and we respectfully submit that regardless of whether excessive force has been adequately put that is fundamentally not a heck issue we'd also like to point out that regardless of how this court decides this issue as to the conviction for assaulting an officer at tia there simply is no outstanding conviction as to officers kyle and mendez heck only bars claims the system has full prosecution of which would necessarily imply the invalidity of a prior conviction there is no conviction as to officers mendez or  jurisprudence and would effectively adopt a categorical rule that anyone who was present at the scene of the incident to which he pled guilty he cannot plead a claim against them that is not supported under  well would you agree that the degree of force used by the other two defendants would be would be appropriate or not in part dependent upon whether they were saving colleague from from being assaulted by your client it would depend in part on that issue but successful claim on that ground would not necessarily imply the invalidity of the park conviction on this point overturn a still outstanding conviction but which does not go far so far as to necessarily demonstrate the convictions in validity as this complaint allege that your planned it up in the hospital it ok thank you thank you all will reserve decision