you may not know the answer to this but when they when he went to while his reaction they dropped him back down to the harshest level what reasons were given for that change segregation in the station or ministry segregation and so there was no step level on no justification it wasn't until later on in the process and so no justification for a year and a half is that what you said ye ok and when they finally gave some sort of justification what was it initially it was a longer period needs a longer period of stable adjustment there was one review in which it said simply it should remain in segregated c that time mr smith had no indication he would ever be able to eat by initially not offering any rationale of all why he was placed in the harshest segregation conditions of long rich and then eventually getting only they just needs a longer period of stable adjustment policy violators housing the defendants were using mindlessly recite as three rationales we discussed either that you should remain in quote in segregated confinement and he needed a longer period stable adjustment or that he was in noncompliance room policy rationale or insufficient we will review which requires an explanation to the as to why they remain in segregated confinement as well d as guidance as to how they can adjust their behavior in order to get out mr smith did not receive that at each of these at then it's not only shows to keep them in segregated confinement but to keep it at the harshest level segregated by the most extreme restrictions and so if defendants were to simply say we will not consider ever increasing your privilege levels at all for the next four years because live with that policy that he would even advance to the next but the grooming policy rationale is also problematic because a reasonable juror could find that it simply wasn't the real reason he was languishing in segregated i'm a reasonable jerk and look at the fact and roll you rapidly advance from the harshest segregation restrictions to the initial stage non segregated i'm looking at all of those tax records recent jerk with conclude this simply wasn't the real reason and meaningful review requires providing explanation as to why the investments remaining in that segregated i mean level and what they can do to get out yes rock that's so so i guess on the other end when you got to read i mean and within a month or a little over a month about the elephant in the room that is qualified immunity if we agree with you as to the conditions and how you propose we get around qualified immunity well it's important to not district of virginia which is the district where this case was brought and where both the once read and read i'm going pretty prison facilities are located has looked at the specific features of the step down program under the three part test and then stated by the supreme court and williamson versus austin and found that the conditions of confinement under that passed are not harsh and typical when compared with the ordinary instances of prison life yes your honor i guess that's assuming the test is in the procedures could appear to provide due process but the fact that reliance on those procedures only highlights for me the importance of meaningful review and that the procedures are actually followed without some sort of opposing counsel says just sort of rote explanation randomly and for the st year and  have no explanation at all your honor if i could address your question in in two ways st when we're talking about the question of whether the british interest was created by the conditions of confinement i think that the question of the particular procedures and the affirmations given is less relevant when the root every part of that has reviewed this and has applied to three parties from wilkinson which look specifically to whether a liberty interest was created has considered the conditions of confinement and the purposes of the stepdown program which is  course to allowing me to have a pathway back to general population it is intended to be an area process it is intended to be a process by which the inmate knows what he needs to do and to report through that process yes i'm sorry so what grammy and that was at the time a relevant factor that the officials considered he would be had he would have gotten a poor grading on his personal hygiene scores every week so mr smith would have known that personal hygiene scores were part of the consideration here and secondly what about the fact that the grooming policy was not a reason for segregation otherwise that they had a separate unit unit for people who failed to comply with the grooming policy particularly religious reasons let me take the nd part of that question st because i think that's a mischaracterization that sort of comes through these briefing which is the grooming policy applied to all inmates at the dock equally at the time that we're talking about here the way that the docket dealt with persistent violators of the grooming policy who were not in segregation was that they were held in the ring in the growing violence unit which is where mr smith was originally but the policy applied the same and violations of the policy were subject to discipline and to consequences for everyone so in terms of the consideration of the wilkinson factors whether or not that that should how that how that your son nation whether a liberty interest is created the really the only question is whether there was a difference in treatment between those in segregation and those in the general population and with respect to the grooming policy there was not for all violators of the green policy they were sorry for all inmates they were prior to the green policy they were required  so not withstanding religious objections that of course has changed over time but at the time that was the policy and i would add that i think there's a reason here that that that that element of this case does make it a little bit challenging to review the constitutional question because it changes the law and i would just point out that there were other yes but he didn't ultimately there yet he was released from segregation at red onion a month that really got there because he  this i think there's missing element there which is that the odyssey and the policy with respect to how the doc treated religious objectors who violated the grooming policy in segregation changed a couple of days are right around the time that mr smith returned to read on  their hair were no longer penalized on their personal on their personal hygiene scores and again to get the qualified immunity when i think this really highlights why qualified immunity is critical here there have been other cases in the western district that also involve policy and nonetheless every sitting judge has recognized no liberty interest there so and i would add that two of those cases were affirmed by this court and from the perspective of the reasonable officer standard to say that what it would be unreasonable for us to cases are what what is clearly established law the fact that these are district decisions the back of their own published and the fact that the court of appeals decisions are unpublished would certainly be relevant and in fact it would be dispositive if i were standing here telling you that those decisions clearly establish the right issue but i'm not my opposing counsel my friend over on the other side has said that wilkinson versus austin clearly established that mr smith had a liberty interest and i think that's plainly incorrect because every sitting judge that has looked at this that looked at this during the time  actually consider qualified immunity is that the case and if so why shouldn't we just remand it back for the district if we are inclined to agree with him for the district court to consider that in the st instance that's correct and of course this court has to be authority to affirm any basic order by the record and we believe it is supported by the record here and has done so we say now every practice in versus holder which is a case where this court did affirm unqualified immunity even though the district court did not address it and i think there are three reasons some juncture and this is the supreme court has said that qualified immunity should be decided at the earliest possible juncture and i think here we are unless you reverse the district court and find that the district where abused its discretion with respect to discovery i'm happy to discuss that i think it's very clear that the district or did not abuse of discretion but not it but leaving that aside for the record with the record is set in the legal landscape at the time of this interaction with mr smith was ongoing was could not have been more clear again the only case that my friend  it's to continue again i think where you have a dozen federal judges finding a letter he enters to say that it that it would have been unreasonable for the per person in the defendant's circumstances to not recognize that clearly established law would be contrary to any doctor proffer to me that i'm familiar with but they just have sort of put even a finer point on it i would add that this are two years ago in williamson versus sterling which is a case involving pretrial detainees who have a greater liberty interest out and  body and cavity searches every time they left and me into their cells were they were not your honor as far as i know well that they were about this and you would agree did mr more than one time is there any way i can get out of here without cutting my hair that's what he's saying there was a place that in terms of if  whatever the groom themselves so we is not just segregation and general population that's the factual question whether or not some of those cases you talked about of the judges looking at it that's a that's a factual question is don't you agree that there was a place disagree that he asked to go there i do not agree that that's relevant to the power failure in the analysis for one there were cases that involve printing violators barksdale is one of them and cited in our brief but to your point about whether he was whether he should have been allowed to go to the group violators  coliseum the time and i'll point out that this man committed the assault on our corrections officer which is the reason that he was placed in level as segregation it was when he was in the room violators unit but again with the grooming by leaders unit wise it was not a means to allow a free pass to violate the grooming policy it was after time the way that the doctor managed persistent violators of that policy again everybody was subject to the grim policy at the time and even religious objectors were subject to the growing policy and you may have concerns about that sport has developed law on that and you notice changes policy in response to decisions by this part of the u s supreme court and the green policies but different today than it was at the time but to your point about whether he could have just been given a path to the b h u the answer is he was for wired to go through the paps through the step down process and until he was at level six he was not permitted to go to the b h you yes your honor for the for the step down process didn't work does needs a longer period of stable adjustment mean that meant your honor the record shows that that's repetition i i recognize that but i think it's it's important that we not sort of focus myopically on these notations that come out of the i c a reviews because of course it's difficult we were looking at a cold appellate court here but it's important to remember that each of those notations follows a live hearing that was held every ninety days and which mr smith was given notice he was given an opportunity to be heard he was given the opportunity to have a counselor with him to advise him if he wanted to and he was review about this new longer period of stable a judgment was in that occur there were times when i argued with the policy was violent but a policy violation does not equate to a violation of due process and a question for due process even leaving as i provided how many times to the policy need to be violent violated before it equates to a lack of due process what your honor i think it would depend on whether the policy is even required for due process purposes and i would submit what you have here even leaving aside the reviewing component of it you have a review every ninety days that the defendant has provided the hallmarks of due process protections that the supreme court has recognized which is notice and an opportunity to be heard and again we're talking about one component of what the stepdown program should that somewhere in the in the procedures and the notice and all of that provide him some explanation of what it is he needs to do what to get out of this longer period of stable adjustment even if perhaps it is as judge gregory a hypothesis as because he stabbed or assaulted the  so we're just going to leave you in here for a year or are we going i don't i don't think that's correct i think what this step down program is intended to do is to provide an incentive based system where inmates who do commit very serious offenses like mr smith are nonetheless expected to go through a program and return to the general population and to your question your honor the program itself provides that information mr smith would have been told what he would have understood what the steps were if it's undisputed in this record the district says and this is a  that mr smith's councilors talked with him repeatedly and frequently about the step down process so again i would i would urge this court not to focus my optically on the sort of one or two sense things and notations that follow the reviews because it doesn't take into account the fact that they were following length of the segregation ways and be docs favor in this case but the court in wilkinson referred to the descent of duration factor the court emotions and was talking about any refer to an indefinite duration and i think that that applies in two ways in this case  of course the fact that mr smith has been released from segregation sort of shows that it's confined it was not indefinite but i think there's a nd issue here which is that in wilkinson but the supreme court said one of the only limitation on some getting out of supermax is the end of their sentence and here that is not the purpose of the step down program and it is not how the step down program works the step down program is not intended to be indefinite segregation is intended to be a practice which this power itself just a few months ago in greenfield referred to as sophisticated and walk and see because it is incentive based it is design again get these offenders facts to back to the general population and again i think for purposes of the policy at immunity analysis that is a highly relevant factor because we're looking to what a reasonable officer in the defendant's circumstance would have known at the time and what an officer in their circumstances would have known is that based on the policies based on the features of the stepdown program every judge who have looked at it said that it was that it did not create a liberty interest because there was no a typical hardship so to suggest that that be beat up officials should have known something different than federal judges i think it again is inconsistent with any thought version of qualified immunity that i'm familiar with and when you couple that with the fact that this court has already said in a published opinion that wilkinson because of the way it's a flexible test because it's the way it works unless you have exactly the same features again as the ohio supermax prison which we certainly do not have here wilkinson is not sufficient to overcome both and immunity and again that's the only case that my friend cites and again because mr smith concedes that his his claims to  are moot and concedes that the only issue left is the individual capacity claim for damages i would urge this court to to find qualified immunity here because again the record is clear and just to briefly address the discovery point i think it's clear mr smith has  poor rating on your personal hygiene scores which is one component of the personal responsibility aspect of step down which is one component of a larger program which also includes not having disciplinary infractions and the like i think that perfectly reasonable for an official that that's the reason for the disciplinary infraction but again that's not the reason provided the reasons provided were that he needed a longer period of stable jasmine with respect to the grooming policy i think that as your honor suggested or i'm sorry one of your colleagues suggested not following the rules with respect to personal grooming was considered to be a to marriage at that time and for that reason that officials would have been sort of within policy to say that it was engine system is proceeding if you refused to follow the green policy your honour's i'd like to make three points st this work can and should remain in this case for the district court to address qualified immunity in the st instance but should address the question of qualified immunity mr smith protected liberty interest was twenty four hours a day or so all of their meals and that's self and had limited access to visitation and recreation and a reasonable prison official would have understood the keeping mr smith in conditions of confinement that are virtually the same as the inma