from you folks and i would appreciate your if you will bring us up to date how many strikes under the l r eight does your client currently concede have been that if the the prisoner pleads an imminent risk of serious physical injury danger i'm sorry an imminent danger of serious physical injury that's correct your honor i misspoke that that he can two thousand and seven and then there's a more recent case called williams that essentially sets a standard that the risk needs the only be plausible and it needs to somehow relate to the violations that are the basis of the  lawsuit the cases specifically say that the court is not to engage in an overly detailed in korea about the seriousness of the injury it being a prisoner case obviously the standard rule of very liberal construction of the pleading applies and the cases are also clear that imminence requires effectively only a considered a continuation of passengers practice so it's your position that if your client doesn't get the top bunk that he's in danger the record does show that after one time of being you know having these accommodations removed my client in i believe rolling up his mattress to place on the top on did suffer severe back injury or at least severe bill he wants t preferences about the treatment he would receive in prison and i don't i don't believe that we are contending in this field that those specifically cost today so he's not in imminent danger of a serious injury because he's not getting clear that you know he has suffered from severe back problems for a very long time he has designated lumbar spine only osis degenerative disc degenerative disc disease and also your threats of the knees these have all been proven for years going back including with radiological evidence and effectively what we contend happened is mr el shaddai came to the prison doctors and said i want medical marijuana and the prison doctors apparently believe that that was outrageous and removed the accommodations that he had previously had for decades and that that's really what where we think the nut of the nine hundred fifteen g question is is that is is that when the prison perhaps or we would contend in retaliation for mr el shaddai his request that i'm not saying that he had a legal right to it certainly didn't do anything wrong by requesting it you know placed him in a serious risk of physical court but we are by no means of abandoning any are but it's also the reverse is also true if we find that there is imminent danger of serious physical injury that overcomes any strike problem of the other hand if we don't find that your claim is got right you're going to eat even if there aren't strikes you out you have to that's a second component that you have to show right know your i believe they're in the alternative i believe i've only got a serious  likely saved the constitutionality of the statute let me hear from you too why you claim the three strikes don't exist the first one you say does where my client brought actions to receive pro consideration day and and those those cases are effectively cases that were dismissed under young vs kenny because they should have been brought as ha cases that were brought about additions of confinement or money damages actions they weren't cases that were that this statute is not addressed at the core of hey vs which is getting out of prison and you know the case the nelson cases those are effectively cases where you know my client probably should have filed a twenty to forty one petition but he was trying to get a you it's morning may it please the court my name is michelle i'm a supervising deputy attorney general and i represent dr in the answering brief doctor weighing identified sixteen potential strikes and bases reach of them i won't belabor each of them but we don't have to worry about sixteen we have to worry about two we have to worry about give us and we have to worry as i remember them he was seeking to get a parole date from the state authorities and he's then wanted by a civil rights action and the other by mandamus wrong he should have filed petition but here we have a case of tucker versus carlson as a nineteen ninety one ninth circuit case the says when prisoners do this you should consider their form of action regardless how they write it  sooner now heck came after pricer and explained that when you were seeking damages which is what mr el shaddai was seeking when you were seeking damages if success in that action would necessarily valid claim for parole violation i said i just seem to remember an opinion written by circuit in gilman versus brown recently where we dealt with exactly that yes so if i understand your question are you asking whether the district court could have converted it into a habeas action could have characterize it as a rosa ok now let's suppose it does true right yes and you're accurate yes go ahead takes care of gillis and gillis becomes the second strike now we've king this court said that actions for a civil rid of mandamus may count as a strike now nelson there was nelson one nelson two and an appeal shaddai i was told that he had not stated a cognizable claim in nelson one then he took an appeal and this court stated that it lacked merit another strike and then even though he had been told that twice was evident on the face of the complaint under those circumstances where there's no cause of action pleaded that count as a strike is it not ye so he had an m r i a knee brace medication for pain so there was no showing of an imminent danger of harm the argument in the opening brief is that people of advanced age mr else i was fifty six advanced age are at risk for falling and that he might be hurt if he decided to pick up something heavy both circumstances under his control but significantly at excerpts of record eighty eight it this court found that a complaint was barred by heck and also barred by the flick will statute of limitations could count as a strike this court said that the district court acted within its discretion in maybe you can answer counsel's suggestion that anyone who is over fifty six is of an advanced age all the members of this court would like to know whether that's true i will not assert your honor that's a generally i that included the damages claim the o'neill case which is one of the early cases this court came out with says that in order to be a strike that the grounds has to cover the whole case so i wouldn't dispute that  t damages claim mixed in with let me out of prison might be might be possibly a hectare claim but if the heck bar doesn't wipe out the whole case then it's not a strike and so i think that covers which was recently decided by this court does in fact say that failure to exhaust when extra record materials are considered is a effectively a summary judgment grant which is not a strike and if you look at the pre i know as a matter of fact that the court considered it as a twelve the one on enumerated what were in the record can i find i could i i didn't see that i seem to me that they considered it just on the face of the complaint which takes it out from under richie does it not if that's true i think the problem is that he won a decision was decided before the supreme court made clear that exhaustion is an affirmative defense that is even if it is an affirmative defense if it's on the face of the complaint doesn't that change the character of our consideration i would concede that that the richie case does say that if if on the four corners of the complaint it is clear that