honored to have sitting with us this morning judge congressman from the western district of north carolina and you were ready for argument in the first case mr heighten please the court my name is toby heightens i've been appointed by this court to represent the appellant just in marshall islands our position in this morning's case is simple and has two parts first under the extraordinary circumstances of this case the district court exceeded its discretion in denying mr evans motion to request counsel to represent him and second the appropriate remedy is to vacate the district court's judgment and to remand this case for further proceedings unless the court has questions about the remedial issue i'm going to focus this morning on the threshold question of whether there are extraordinary circumstances this court's precedents say when assessing extraordinary circumstances we look to two basic question the characteristics of the claimant and the characteristics of the claim that he is bringing with the character characteristics of the case under both of those characteristics this case presents extraordinary cir single most important feature of this case and i think one that separates it from every case that has been cited in any of the briefs that i'm aware of is that for the entirety of the district court litigation from the moment his complaint was filed through the library at some point your honor he had access to the law library i think the record reflects at some points while he was detained at the prison but i'm speaking about the portion where he was confined at the time of the district court litigation he was confined in the psychiatric hospital for the entirety of the district court litigation and when the court was deciding whether to grant his request for counsel to represent him and how much time was that he would like it as of the date of the filing of the complaint your honor my best calculation is that it's somewhere between ten and a half and eleven months he was confined intermittently he was first as i believe detained in two thousand and nine this case was filed in two thousand of the litigation was filed he had been confined to a psychiatric facility for somewhere between ten and a half and eleven in total but he had also i will and i will add he was sent there for the last time approximately four months before the suit was filed and throughout the entirety of the district court litigation he was at the psychiatric facility and i think that's important because this court's cases indicate that in assessing his request for counsel we have to look to his status as of the time of the request and app the time of the request he was at the psychiatric facility and had been there the entire time it it appears to me though that evans was fairly successful in articulat client so i understand i certainly understand your point and these are very unique circumstances because a lot of the reason for denying this to evans access had to do with his inability to be around any object that he could turn to self destructive purposes a book a pencil paper or anything of that sort but given those limitations she was that my question just a little bit further he was he also was very articulate in describing the abuse the complaints that he was made i think it's fair to say that in describing the underlying substantive allegations he was making mr evans was able to express himself and i certainly agree that that is a fact that cuts against us in this case and there are also there are arguments i understand about this i read have to look at both the characteristics of the claimants and of the claim i think it is important in emphasizing that this court's decision and why isn't it which is this court's leading presidential opinion on this question repeatedly actually describes it as the complexity of the book case and i think that's where the tolling issue comes into play your honor the court has said we have to look at how complex is this case is this a case where a lay person without the aid of an attorney could reasonably be expected to represent himself and i think the tolling issue comes in that it's very important i think in this case your honor and again a distinguishing feature from many of the prisoner cases the defendants in this case have never moved for dismissal on the grounds that mr  allegations are meritless on their face they had to not file a motion to dismiss for failure to state a claim under the all standards of pleading they have never alleged that on their face the allegations in the complaint would entitle them to dismissal based on honor i think it just emphasizes why mr evans needed a lawyer because as we pointed out mr evans was through some mechanism that that's not apparent from the record he was able in his opposition to the summary judgment motion and i'm quoting here from page one ninety nine of the joint and mr evans said that he is informed that there exist legal precedents case law saying that in some circumstances the time bar would not apply but then this is the all important language your honor he says since plaintiff is currently denied access to the law library plaintiffs cannot research this and quote the appropriate case law and not just we think underscores precisely why mr evans needed a lawyer under these circumstances because a lawyer could have first  realized the somewhat counter intuitive point that the statute of limitations on a federal claim under the supreme court's decisions is actually a matter governed by state law and then realize that he needed to consult the virginia code to find the relevant provisions on tolling that we set forth in his brief and i think it's clearly prejudicial to him your honor because the research that we were able to do after being appointed by this court represent him reveals that he has at least two facially plausible tolling arguments under virginia law that he was never able to present to the district court and that the district court as a result was never able to rule out so that to answer judge duncan's question i think that's why the tolling issue is relevant for two different reasons one this court has said the second characteristic we need to ask increases the complexity of the case which again is the court's language from wise and you need to look at the complexity of the case one of the things we lay out in our brief is this court has said that if the case if it is a case like brock which is cited in the r a case where this court said ultimately this case comes down to a straightforward factual who do you believe about fact x and the court said that is the sort of thing where a pro se individual may be able to represent themselves competently but this has never come down to something like that this case at its heart turns on the legal question of whether his claims are time barred and under the extraordinary circumstances of this case mr evans could not reasonably be expected to research that issue for himself and respond to why he was hearing his kind i understand your your point that he was confined to a mental facility during the pendency of the litigation but did he not have access to the law library of being on a limited basis and carol during the time he was preparing his client yes your honor the record certainly indicate well the record does not indicate precisely when mr evans i would say though on the question of his access while he was at the p r j i will point out that the principal document under which the defendants rely is this or one of the principal pockets was this memo from one of the defendants that outlines of the procedures for getting him access to the law library i think there are two things about that document that are no or the one of which is that it's dated december twenty third twenty fifteen which is by my count at a point at which he had already been on an often find at the jail for more than four that in the course of his criminal proceeding one of the defendants in this case acknowledged that for some period of time he was denying mr evans access to the law library for the purpose because of the fear that mr evans would file a lawsuit against the president and mr evans in his supplemental brief excuse me your honor mr evans in his informal brief to this court that he filed before i was appointed to represent him mr evans specifically asserts the reason i didn't file suit sooner was because  december twenty third teen the record reflects a memo stating that evans could request one packet of legal materials that are time that he would have to turn that into get another one because the business because of every time he had access to anything like toilet paper he would use it in to in full for purposes of self abuse he was allowed to use the law library one hour per day after a search to uncover all items that he may be used to cause harm he was allowed to write with a non toxic crayon in to take those notes back to sell so there was some response there was a period when the when the prison authorities responded by trying to make the library accessible to him using implements that he could not turn on him so there's certainly evidence to that effect your honor that's in the record you're right that's at joint appendix one ninety four to ninety five but again two things to say about that first of all this was not something that was done until after he had been at the jail for approximately four years but i thought we were talking about his ability to prepay or correct right so i'm trying to but that certainly leaves open the possibility again that stated as i said december of twenty thirteen twenty thirteen your hon well so the argument that the defendants raise is that the time bar started running in two thousand and ten to two thousand and twelve and so if there was a period of time prior to that memo when he was not being allowed to access the library that would support our argument that there would be tolling with regard to those periods and second and more importantly honor i think this just illustrates powerfully why it was so important that mr evans had a lawyer because the document your honor just reference was one of eleven separate documents that the defendants filed in support of their motion for s case presents a person who was confined in a psychiatric facility with no ability to access the law and he was presented a colorful claim that he lacked the capacity to present and so unless the court has further questions i'd like to reserve the balance of my thank you very much wars that dealt with he fell to outline any exceptional circumstances to the general district court judge telling him i'm in a psychiatric hospital i'm incompetent i am not able to take in for my thoughts i'm on medication he didn't do any of that well would he have been expected to sell five noce not to self diagnose but at least let the court know what the exceptional circumstances are how would the court know that the exceptional circumstances are that he's extremely mentally well i think i think it i think the reason he was hospitalized was because of his self harmful behavior but there was never a determination i have incompetent maybe i'm not understanding your point is that he did not present or those facts were not presented to the court by anybody yes when he was found his request for portman accounts so he was not the judge i asked what are you not indicate an exceptional circumstances to me do you agree that he was extremely mentally ill time i'm not sure that that argument is particularly help you can see the circular nature of it the fact that he didn't recognize might simply be further indication of what appears on paper to be a fairly honor that he had a mental disability but my point was that he was not found to be incompetent and he was a found to take and be able to represent himself in his own criminal case in fact excessively delayed the prosecution of his criminal case for five years so your point says in his decision in the appendix that the inmate has not presented exceptional facts to support his requests just what does it say in its opinion is anything about the tolling issue what are we to how would totally not be available to help mr happens i think telling could have been helpful to help me could have helped mr wright well that's a pretty damaging admission i think well well i mean i think whose extent stream lee intelligent who's very well versed in the law he's representing himself in the criminal case and he's right files appeals falling goes with human rights commission he was very adept at filing actions and formulating his thoughts make the s not a whole lot of guidance on this issue on the mentally ill and when when counsel needs to be pointed we don't have a whole lot of precedent to go by and i think this is certainly a case where i i would not say that this is someone who did not know was normal inmate right right it is an extraordinary case that point it's an exceptional case so does and it within the confines of the exceptional circumstances which would indicate ruling of the district court of the joint appendix and in that affidavit the courthouse in front of it i do not see any denial that he made that admission before the state court i actually think there is indirect corroboration of it actually in the record your honor if you look at the actual document itself that's legal materials judge shaw is the judge that mr evans alleges admonish the defendant for his admission that he was denying mr evans access to a library so in fact the evidence that the defendants have put in the record provides indirect circumstantial evidence that actually before the district court how well did the district court of discretion based on what it had in denying evidence absolutely none of that was that was going to be my second point the question is whether this was put before the district court and it was the single best evidence of that is mr evans his second request for counsel it's in the joint appendix starting at page one thirty six it was filed on november thirtieth twenty fifty in that second request for counsel mr evans informs the district court one that he is indigent true that he is being confined at central state hospital three that he has no access to a law library for that he has no access to a pen and then this is later he actually includes the absent from central state this is that j one forty four that says to very important things that attachment which was attached to the second motion it was that's before the district court first makes crystal clear that the reason that he is at central state is because he was sent there by order of a court under a provision of virginia code allowing for commitment of an incompetent defendants of the district court was clearly informed that the reason he was at central state is because the court concluded that he was incompetent and further it is in that same document that the officials of the psychiatric facility take the position that mr evans has no right to access the courts which is a position that the defendants have made no effort to defend the legal practice  not before us that's part of the reason they probably haven't made an effort if when i can appeal and i could tell you no but but it is before the court your honor because it bears on the question of whether this case presents extraordinary circumstances if it wasn't but i take your point that is the inquiry is intertwined because you're saying he can't represent himself right now i think it's important to differentiate i think the access to the courts issue it matters in this case for two different reasons the first is with regard to mr evans's substantive claims and i agree that one of his substantive claims is a substantive denial of the first amendment right to access t courts i agree with your honor that that was not appealed i guess i would say it has been appealed to the extent that we have appealed the final judgment on the grounds that it is tainted and that's the court's language from why isn't it that the entire final judgment in this case is tainted by the fact that the district court did not your opening no i certainly agree with it but your honor i think the access to the courts issue also bears on the issue we have appeal which is the characteristics of the claimant i think when we assess the characteristics of the claimant the fact that he's being held in an environment where he has no access to an attorney is part of the court's analysis of the characteristics of the claimant and that certainly was before the district court because mr evans made that point crystal clear in his motion requesting for say does one per se present an extraordinary circumstance are there are there other avenues are there guardian ad litum is there there is there a person say  basis to suggest that because he is incompetent he is entitled to i don't think that i'm aware of any decision of any court that has said that and i certainly don't but i also want to understand your are no way set but i also don't think there's any need for the court to rule that rule in our favor because there are a number of factors about this case there may be for example there may be an incompetent defendant who has a guardian who's been appointed to represent them i think that would certainly bear on the question of whether a case presents exporter mister couper point is that correct thank you very much for your extraordinarily able service not only to your client but also to this court we appreciate we will come down in