thank you your honor good morning me please the court counsel my name is larry dougherty there is no dispute mr aguilar was entitled to a hearing he did not get one although he was on parole defendant's mis words what i'm saying you're hearing what an absolute necessity here your honor the hearing was an absolute necessity under wisconsin law because mr aguilar was entitled to it the that tonio versus franklin case was later disapproved by the supreme court for the limited proposition that an inmate can make an appeal to the same defendant who did the deprivation that's problematic that would have been predatory as that would not have been a substitute pre death the premedication parole hearing before a hearing officer to which mr aguilar was entitled under wisconsin law there's a special what does wisconsin law have to do with th is is a federal claim we can't enforce state law so why wasn't title meant to appearing under state law of any moment when the court is not being asked to enforce state law the court is being asked to accord the federal process that's due when state law that's a liberty interest but state state law giving someone process counts for zero in these cases that's the hol ding of the supreme court in all i'm against walk in a coma so there's one gets nothing out of state law the my my particular question for you is what did your client lose he got full credit for these ninety days when his parole was revoked following plenty of process so i can't see what you know basically what was your client's loss you reply brief says what he lost is process and all i'm says and i'm just quoting the supreme court process is not an end in itself it's constitutional purchase purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement close quote and the problem i have with your position is that censure client got day for day credit for the ninety days you don't seem to have lost a substantive interest yes you're on the side in the number of days in jail is not the sole measure of harm mr aguilar seeks expungement of in a legal record as a full credit for the ninety days he your honor he seeks expungement of the legal sense from his record i don't think that's something that he's covered by federal law as it as a matter of basic fairness your honor the hearing here would have been the vehicle to test the claims for the unsubstantiated information from the racine police department that was the basis for the detention defendant sounds like an argument that you just get processed for the sake of process right suppose the statement said you know your your releases record and we're not doing anything  you violated the terms were doing nothing and they write that down with that violate the federal constitution if if he hadn't title meant to a hearing your honor  process is absolute that's why harm that's why there can be nominal damages that's why the showing of harm is not required to focus on what he got no more days as a result is the wrong focus is not called the result it's called due process the we are not entitled to reject holdings of the supreme court like the holding in or and i understand your honor  as a as a practical matter of fairness the defendants originally were going to release mr aguilar then came the phone call from the racine police department threatening new charges accusing mr aguilar of using marijuana he denied the new charges he took and passed a drug test at the jail the next day the police never filed the charges never the last the phone call from the police department was reason enough for the fans to change their position and decide impose a ninety day extended supervision sanction on him that under wisconsin law he was not eligible to serve in so doing they recklessly disregarded six indications in their own records that he was on parole he defendant's answer no no harm no foul is not an answer to a due process violation and there's no there's no pardon on mr aguilar to show in a hypothetical what he might have argued or what alternative result might have come as a result of hearing it it's always harm it's always a valid right to process is absolute with respect to the site seems like you're just filing a belated petition for a rehearing  what you're saying is almost exactly what the ninth circuit said and what the supreme court reversed the the second point your honor is that the district court failed to give fair and meaningful consideration of the claims of a pro se point to the end of this case on a limited discrete easy to fix  problem the hearsay problem the fix would not have prejudiced in the fact this mr aguilar's declaration has a half page description of his attorney's conversation with defendant harris the attorney told senate harris my client's on parole you've detained him on in a legal sense you need to release defendant harris's response was we're lucky he's lucky that we did not revok grapplers that the defendants acted with deliberate indifference there's no evidence that any communications between cell shows that did bernie contacted descendant yes who was in the line of command the day after he spoke to defended harris we don't have the account of back conversation that's the point of having the attorney give the whole conversation himself the district court erred by concluding this was the only evidence of defense in mental state again mr aguilar raised the fact that a reasonable inference could be drawn that defendants were reckless or deliberately indifferent by failing to observe and act on the six correct indications in their own records that he was on parole in less so there right there was adequate mental evidence even without for that through due process claim even without the attorney's testimony i'm in my rebuttal time and in less  record to suggest that anything that any of the defendants here did rose to the level above negligence and the record suggests that none of the defendants who are responsible for mr aguilar supervision  were aware of the mistake that they made and on that basis it simply doesn't rise to the level of a constitutional violation well you know the type of bureaucratic responsibility that that would require miss harris to take any action first of all if there's it's not clear from the record how he attorney sold on it was directed to miss harris but separate from from how he got there it the mere fact that he spoke with her does not create a responsibility for her to take some action that isn't otherwise  within her within her responsibilities we cited burke's versus remission our case in our brief rather for the proposition that merely informing somebody in the bureaucratic chain does not create a constitutional responsibility to act and so it is with miss harris here that she in her declaration stated that she had no about this information and because there's nothing in the record to suggest that they have that information what we have in the record is a mistake a human error that they misperceived has classification and on that basis the most that can be said about their conduct is that they were they were negligent but i'd like to address mr ag abused its discretion and made that reversal is required on that basis rule fifty six he doesn't impose any mandatory obligations such that the district court could have  abused its discretion on that basis and rather the actions that were taken before the district court complied precisely with with this court's instructions in terms versus frank and lewis versus faulkner which instructions are now codified in the eastern district of wisconsin local rule which instructs parties adverse to pro se litigants to warn them about what might happen what will happen if they fail to respond to facts on summary judgment there's no question that that procedure was complied with here and that the district court therefore  within its discretion to grant summary judgment when the most that mr aguilar could muster were hearsay and double hearsay statements in support or to challenge summary judgment sort of putting aside bit the propriety of what the district court might have or should have done it at the end of the day even if this court were to look at the substance of the declaration it as your hon or indicated that it really doesn't support liability as to harris and certainly not as to any of the three defendants responsible for mr aguilar supervision  we the statements are that attorney saldana told us that aguilar was on supervision and she said she's lucky we didn't revoke that that doesn't change her responsibility over him as as we've discussed previously and it there's nothing in the affidavit that suggests that turney saldana informed the other three defendants all of keep behind to the substance turning that into the substantive claims that issue here which i would again underscore that the court need not address those claims of the court that concludes that the harm on which he based his complaint and that was argued before the district court in the district court it was relatively clear that what we were talking about was confinement as the harm and here  as the court has recognized the harm that he discusses is the harm of being misclassified and that the point there is that these are these are two separate clear that that harm has a legitimate tina logical purpose detaining mr aguilar as a result of his will violations simply doesn't rise to the level of  constitutionally impermissible punishment under the eighth amendment converse leave the harm is being misclassified and we're sort of at the other end of the spectrum that it's just not a sufficiently serious harm to trigger eighth amendment protections so it regardless of how the harm is classified i think mr aguilar's eighth amendment claim fails on that objective prong similarly on the subject of prong he also fails to to show that defendants conduct here rose above negligence he points to multiple instances in the in the record where there was  case citation or the case notation on the paperwork but that doesn't say anything about the state of mind of the defendants here and certainly doesn't rise to the level of the the blatant disregard of a substantial risk of harm that the eighth amendment con turning finally to the due process violation again there's potential different inquiry depending on how the harm is categorized but as we addressed in our brief at the end of the remedies and depending on how the harm is classified administrative remedies so by the existence of those remedies due process is satisfied and mr aguilar is unable to to establish that due process claim unless the court has any further questions we would ask for this court from the district court's decision thank you counsel an of evidence in that case this court abuser overturned the district court for an abuse of discretion for failing to appoint counsel for a pro se litigant with a sixth grade  court for doing so without warning and used the word overkill and that is what happened here there was no warning to mr aguilar that he was about to lose his case because of a discreet hearsay violation defendant's referred to another until they're not competent everyone is different as judge indicated through her question another court would have given an opportunity it's a discrete low cost thirty day fix no prejudice to the let this person get a complete account from the primary interlocutor the attorney about his conversation with all the defendants not just defendant harris the defendant recklessly disregarded indications in their own written records that he was on parole the parole officer wrote correctly four times that he was on parole and she didn't even pay attention to those affirming here creates the rule that nobody has to be responsible for the entries in their records and that supervisors may wrote forms without even having to call out their subordinates for obvious mistakes again overkill was the word that this court used in the palmer case complete rejection of the claims with prejudice on summary judgment without warning all the district court had to do was issue a notice to mr aguilar you have thirty days to get and declaration from your attorney put this information in a form with respect to the governing principle in the district court it's not the ne in rule fifty six fifty sixty is it twelve blocks of orders that the district court can use to craft a relief the guiding princip to the district court is the palmer versus the cuter case just reports must provide fair and meaningful consideration to the claims of a pro se plan and that didn't happen  here this court has had no difficulty reversing district courts for abuse of discretion for failure to correct a discrete legal problem that blocks the consideration of the claims on the