my name is margery branstetter and i along with my colleague robert hatch represent alexandra greg who individually and as a proposed class representative i would like to reserve five minutes of my time when alexander greg was an inmate at k trickle see she was there on and off up until november two thousand and eleven she was subjected to discrimination retaliation and a variety of constitutional deprivations that resulted in a severe psychological injury the court below found that all of her various claims were time barred because they were not brought within two years from the time that she was released from k triple c now what we do agree with the state on is that the political statue of limitations is two years for each of her claims the place where we have a serious disagreement both with the state and with the court below is when those claims of crude and at this point i'd like to pause and address the specific question that the court asked us to be prepared to discuss and that was whether the separate causes of action for psychological injury versus the gender discrimination and retaliation claims have different accrual times and we would state that yes they do and i believe that it's possible that the reason that the court  below got it wrong was because that distinction may not have been made below we believe that the gender discrimination claim whether women were entitle to participate in the work that was march claim was that it was the third plan oh well a lot of the claims include multiple allegations but we believe that the retaliation claim would be the  sorry the gender discrimination claim would be the the second claim and part so you could see think that that would be time barred yes and because and i think what happened was that when we talked about the various accrual times a lot of the cases deal specifically with different types of of claims and the abramson case was a case involving title seven and the abramson case specifically said that you look at the accrual as at the time of the actions not at the time of a potential injury all right what is your analysis on the retaliation claims with respect to the retaliation claim again we believe and would concede that that too was time barred because when ms gregg complained and there was an action taken where she went back into the modules and was removed from the better location in the life time stamp program she knew that or should have known at that time that the program that she was retaliated against for speaking up that would be her first amendment claims as well and we agree that that would be time bar instance that occurred cost her psychological injury yes and i think when you look at the various claims in the types of cases that talk to a delayed a cruel i think that the psychological injury claims most closely fit in with the simons case and i think when the lower court determined that she knew what had happened and she knew the injury and she knew the cause i think that those statements might work for the discrimination claims but they certainly didn't work for the psychological injury claims and quite frankly when you look at a psychological injury we did not find any case that came up with a similar fact pattern where the type of psychological injury that she suffered in this case it was a p t s d type disorder she had no reason to believe that her discomfort of having to undergo and endure this so called therapy given by someone who was not a therapist being forced to relate her sexual history in front of men and women in a program that was run that was supposedly therapeutic and she later learned caused more harm than good she had no reason to believe that at the time that she was incarcerated horse rated k triple c when she got out of k triple c she first went to the federal detention center and she got out in the spring of twenty fourteen it was only after she got out in the spring of twenty fourteen that she spoke to a social worker she began to understand that perhaps her injury or her feelings needed professional help and she did bring suit within two years of when she first began to believe that she had any psychological injury so ms gregg had actually knew about the acts she knew what had happened in terms of what she had endured at the at the prison itself but she did not understand and she did not know what the injury was nor did she understand what the cause of that injury was what prom the court did look at her declaration for purposes of determining whether or not she had the right to a man she stated that when she got out she went and spoke to a social worker a social worker who had been affiliated with k triple c and it was the social worker who encouraged her to go and seek psychological help and we believe that at the time of that she went to see the social worker she may have been put on notice that it was time to get diligent about going and getting the psychological help and it was within two years of seeing the social worker that she did file the lawsuit the and i think that the simmons case actually does talk to the issue of whether or not the delay was reasonable was it reasonable for her to have delayed seeking the psychological help and i think given the circumstances and the chronology here it was absolutely excusable this wasn't a situation where she was in a sexual relationship as an symons where the delay in seeking appropriate help was because she was involved with her psych psychologist this was a case where she was not given any appropriate psychological help while she was sick a triple c nor while she was in car say or incarcerated at the federal detention center but it was once she got out that she spoke to a professional a social worker a psychiatric social worker after she got out and she proceeded at that time to to seek the psych psychological help s special relationship between the warden and ms gregg yes yes you're on a gravel to the doctor patient relationship and so we would actually say it was stronger because not only was he claiming to be the therapist not only was he claiming to have created a therapy a live in therapy program but we would allege if we had the right to demand we would allege that he was in complete control of the lives of all of the inmates at k triple c and in particular the women within the lifetime stan program and that that was an even greater control and relationship then the simmons case involving the simmons case we would also  suggest that the although that is the seventh circuit the devil broke case which we cited in our reply brief talks to the fact that when you are looking at a that there is no single accrual rule for nine hundred eighty three actions but that the failure though the tort claim that's most analogous to the deliberate indifference claim in a prison situation would be a medical malpractise claim and we believe that that although it is as i said it is the seventh circuit we believe that the and the analysis provided in the deborah rowe case does suggest that the medical malpractise situation would be relevant but even more importantly your honor i think that the fact that the warden continually said that this was a therapeutic program and that they were forced to watch these rate porn videos in order to help them through was not something that ms gregg should have known caused her to suffer from a p t s d like disorder and it wasn't until after she got out that she had the ability to go and seek psychological testing and help from professionals where she could learn not only the acts but the injury and what had caused she wanted to save time for rebuttal and for those reasons we would ask that we have the opportunity to allow ms gregg on behalf of herself in the class to proceed good morning your honors ma'am prosy thank you may have please the court my name is mary manual gavigan and i am representing the state defendants in this appeal you know just the issue that is presented in this appeal is simply whether the plaintiff appellant alexandria greg whether her claims are precluded by the statute of limitations now greg filed her lawsuit on january thirty first two thousand and fourteen  alleging violations of law that she says resulted from her participation in a voluntary rehabilitation program while she was incarcerated at the co white community correctional center she alleges that she was harmed by her participation in this program the harm that she allegedly suffered was was and using her words was severe depression which she knew about prior to november thirtieth of two thousand and eleven when she transferred out of that facility to another jail facility the federal facility and so when she filed her lawsuit january thirty first of two thousand and fourteen this was not more than two years after the accrual of her claim which we believe was before november thirtieth of two thousand and eleven that already clear from the record yes you are we do think that it's absolutely clear from the record and if i may just for a moment we obviously the state does not believe that simmons applies  in this case and i i will get to that in a moment i and i was planned to given that plaintiff has conceded that the discrimination claims and the retaliation claim is time barred i obviously don't need to discuss that i will discuss about the psychological injury and with regard to the psychological injury claim i'm sorry you said leave she agreed to go into the program in any inmate that agrees to go into the program has to sign a contract stating you know that they will abide by the conditions of the program and what is involved at any time if an inmate decides not to continue their participation they aren't required to stay and they they leave the progress of this program i'm sorry i was the purposes of th program it was to help the inmates to understand what what they have well for both it's for the males especially was to understand if they were in there for say sexual assault to understand the impact of their actions on other people and for the females it was to help them to try and share how they have been impacted if again they were sexually  and the program is to try and help the inmates to learn what they've done and so they think greg a victim of sexual assault i'm sure you're not sure that that's what she was in for but she did voluntarily i hope honor or well one of the what was the benefit from the benefit of any inmate going into this program is that they are in what's called least less restrictive housing what that means is in this  they have the general housing which is the modules and they are they are not free to to leave they are incarcerated in the general but in this program this rehab program they have a whole separate housing area and it's outside of the restricted area where the modules are so that they live in these kind of tj's it's up at the front of the facility and they're they're free to come and go so that if one of these inmates decided they wanted to break out they just walk away from the facility altogether but as they are i did once again in the program people to get in because the obviously the goal is to get the inmates to understand what they did to change their lives so that they can get out into the community and be good citizens of the community so whether he  whole different thing we thought there was a veterans bill of rights that was proposed because victims of serious crimes get allocution rights that are treated differently from other vendors well i judge pious i'm having a little curiosity about the benefits i don't want to deprive you of time to address some of what you are if i may just to follow up on that no inmate no you know is forced to stand up and talk so they're asked to if they choose not to they are not required to do so but obviously the warden does want everyone to participate in the program that's the value of it and that's the help of it but they're not always or the underlying theory here as i think is because i think  warden advertizes says and as you say the legislature in dorset as a beneficial program so somebody woman victim goes into it she's in  not being a victim she's gotten rid of some other crime and she gets into it to get less restrictive housing benefit and she's told that this will be good for her and she gets into it and she's been injured beyond embarrassment or even maybe severe does pression i don't know but that's the theory which is and this is what some of them seem to be speaking to until she is diagnosed by a professional says this is a trend to tory uncomfortable experience you went through this is so all of greater why doesn't that apply in this case why shouldn't that approach apply in this case because your honor the complaint alleges that in november of two thousand and eleven greg suffered severe depression severe depression is a treatable a mental illness psychological illness and severe depression is it's a whole lot more than feeling emotionally uncomfortable which is what greg's opening brief and certainly her reply brief seemed to indicate that she had this humiliation and she was degraded and so she suffered emotional functional or perhaps not functional with severe depression a person can be functional or not functional it depends but it's still a treatable psychological illness and severe depression is nothing to just to prove as emotional one covered belittling i'm not i'm not suggesting that you are going to just say in their degrees of injury and for example we know publicly that people who suffered if serious problems in afghanistan or iraq and were severely depressed it took the military a while to realize that this was more than a transfer of tory issue it was so severe that has led to suicides so there are degrees of injury and that seems to me factually simmons is different simmons is a narrow ruling we believe because it relates to the transference phenomena which occurred in this case even if you're correct for this for the sake of this question let's assume that you're correct that the allegations and they first met a complaint are deficient in terms of connecting the depression that she suffered to the cause of what happened when she was to the end of november two thousand and eleven that she had an injury that is the injury that she suffered in fact she knew that that she had an injury but she didn't she didn't know the severity of the injury arguably and she didn't know the conservation of the injury see you know the causation because she said the conditions were so bad she had to get out and that's why she requested a transfer so she knew the injury she knew the severity perhaps she didn't know the extent of the injury but then again if you know of the injury that's when your statute of limitations begins to run and you need to take action on it at that time so sometimes people have injuries like in that they might have a head injury and they don't know there's a latent blood clot i think that was one of the cases or that we cited or another injury that creates other problems after the statute but they do of that injury and they're obligated to take action to do something about it as soon as they know the if you look at her declaration her and the additional information she says that when she got out in two thousand and twelve she looked around and talked to counselors but then she did nothing later that year she talked to the social worker and the social worker said you had better do something at that point she still  has more than a half of a year left on her statute and she does nothing there's no indication of what she did between late two thousand and twelve and january of two thousand and fourteen when she went to see the counselor so she had the advice twice and she did nothing with it she knew of her injury that's the point in simmons it was a different matter because of the again the transference phenomenon she did not know  i believe that the state keeps repeating that she knew of her injury but did you know much in paragraph thirty one plaintiff became severely depressed yes and and when she was transferred back to the case modules from the less restrictive health yes yes and while and while it may not have been as artfully drafted as it it perhaps should have been and what we would like to clarify is that she did not at that time believe that she had a clinical depression she said this is not a question of her state of mind there is not an allegation that she believed she was suffering from severe depression instead we believe that the allegation that goes to her state of mind at that time is more accurately looked at in paragraph thirty two which says that she could not tolerate his continued harassment sexual psychological humiliation and improper treatment which goes exactly to the idea of the humiliation and the harassment but not to a clinical  axonal missions against her and your honor i think that what we it became clear during the course of the briefing on this that this was not as artfully crafted as it should have been it which is why don't we what do you  want to do do you want to have a setback and stand on the complaint or you know a bunch of opportunity to men right we want an opportunity to amend and i think that the appeal was based on two two points one was when the statue of limitations accrued and i believe that the issue here is that the court below found as a matter of fact that she knew not only of the acts that have occurred but also the injury that the existence of the p t s d and the what caused it and our position is that that was wrong and that if the complaint was not artfully crafted we should have an opportunity to read into prose another amended complaint in order to include the time elements that we put into the declaration both the declaration of alexandria greg and the therapist about what was the what was the injury that she she suffered and i would note that the therapist the determination that the therapist made included determination that this specific psychological disorder was one that had a delayed onset and so that in and of itself would lead to the idea that she would not necessarily have known of the injury nor would there be any way of for her to have known of the injury but when she did get out and she did start to seek psychological help she did file within two years of that date so we believe that the state is over reading the allegations in the complaint and all of those allegations have to be taken in a way most favorable to the plaintiff and it does not say in paragraph thirty one that alexandria gregg knew at the time that she was transferred that she was to be really depressed i mean it is probably fair to say that a lot of people in jail suffer from depression they don't like being in the modules where there is