because mr sanders failed to demonstrate irreparable harm and the district court abuses discretion and concluding otherwise now my first point is that some evidence showed that mr sanders was guilty of the disciplinary violation charge that settled law on the circuit that a defendant can defeat it with tahlia to a disciplinary claim by showing that there was only some evidence to support the decision of an impartial hearing officer this court's holding in hartsfield versus nichols controls this issue the court held that quote a report from a correctional officer even have disputed biting in maine and supported by no other evidence legally suffices as some evidence to support scuse me upon which to base a disciplinary violation if the violation is found by an impartial hearing decision maker that case was decided in two thousand and eight and this court reaffirmed and reapplied that same standard just last year in time tiago versus blair united states supreme court holds that in determining whether there is evidence to support a disciplinary charge the district court cannot make independent credibility determination or weigh the evidence this court similarly held in golf versus burton that th a retaliatory discharge or a retaliatory discipline case was opposed to just a general disciplinary case without any question about motive why couldn't a correction the correctional officer has discretion whether to write up a disciplinary charge against inmates and suppose officer only writes up people against whom he wants to retaliate and doesn't write up other inmates for the same conduct why shouldn't there be a cause of action for that inmate even though there was some evidence to support his charge if the evidence shows that the officer proceeded only because of a retaliatory motive i think i'm understanding honest question if the inmate has to show that he was prevented from exercising the constitutional right because of an act of the defendant  the critical issue is that there is an impartial hearing officer that is going to hear the evidence in this case there was not merely the statement of the disciplinary arm sorry of the of the officer mr page my client his statement charging mr sanders with a disciplinary violation was not the only evidence that was before the hearing officer now if it had been under under hartsville and i understand tiago that would be enough under this court's precedent but actually she did she heard mr sanders side of the story he said it wasn't me i don't know anything about that no that's not my question do you need to be hearing officer consider whether the charge was filed based on a retaliatory motive i believe that she did because that was mr hearing officer in this case as i said consider these three letters those letters came into the eighty's the mail room before mr sanders filed any disciplinary or and start any grievances against mr page those three letters i would actually launch the investigation because the mail room supervisor provided copies of those letters to the a t c security personnel and as a result of reading those letters which indicated that mr sanders had been using a cell phone book to make telephone calls and  text messages to his girlfriend in michigan that's why mr page wants to launch his investigation he conducted a shakedown of mr sanders barrett he did in fact recover a cell phone the hearing officer had the actual cell phone in front of her had mr page's investigation which revealed that mr sanders had been using the phone and the hearing officer also considered mr sanders testimony in his defense as well as a witness statement that mr sanders presented to the hearing officer so there was more than some evidence in this case there was quite a bit of evidence before the neutral hearing officer and she considered all the evidence in front of her and she found that mr sanders had in fact violated a d c regulations on the used in possession of a cell phone and found him guilty as charged by mr page that is a defense to this claim and for that reason the court should reverse and dismiss now in addition there are some other evidence in the record that supports the hearing officers decision including the results of an internal affairs investigation that was completed by mike brockman which showed that mr sanders had used the cell phone to make a phone call back in early july way before these letters even came into the a b c he had called his longtime friend on the phone there was evidence of that in the record as well as three different a t c appellate decisions where different levels of authority leading up to the warden at the particular unit reviewed all of the evidence and affirmed the hearing officers decision so under controlling president there was clearly was not some evidence yes the judge said he was not confortable finding as a matter of law and taking it away from the jury so on that retaliation claim good interest in a jury simply disbelieved all of the pull some evidence you know i don't believe it ever should have gone to the jury judge because if there is some evidence in the district court as i said can't weigh the credibility of the witnesses and can't really weigh the evidence if there was some evidence before that neutral hearing officer which we were able to show on a record budget motion there was some evidence in the court should have been a judgment as a matter of law because that is a complete defense of this with allegations claimed in addition mr sanders didn't prove to have his own he did not result i haven't filed any prison grievances that even if the court disagrees with me on that point though there is insufficient evidence of the retaliatory motive in that but for a retaliatory motive mr page never would have filed there is more than sufficient evidence demonstrate a threat of a reputable harm a certain and great in that such imminence that there's a clear and present need for equitable really there was absolutely no proof in the record that having this one of many violations on his disciplinary record would have any impact on him he was in prison for life without possibility of parole his arguments on this point were completely speculative and wholly unsupported by any evidence there was no proof that mr page the defendant could even provide the relief of quested and the district court actually implicitly recognize this fact when it ordered the a b c and not mr page to remove the disciplinary violation there was no evidence and would suffer any harm let alone a record of harm that was required for the grant of a permanent injunction against the arkansas department of correcti sanders prima facia quite a way to dress the hartsfield sure there's some evidence  supported by no other evidence suffices as some evidence that standard is and a great deal tension well at least well established that today prisoner can state a retaliatory disciplinary point by alleging that the disciplinary charge was falls now we can find the resolution to that tension in two places one is in hartsfield versus nichols that itself says if the violation is found by an impartial decision maker least some minimal program of value to satisfy the due process requirement that the decisions of the prison administrator is have some basis and back when on the whole that we do not have to give credence to evidence that common sense and experience suggest incredible and so we must determine if the evidence offered at the disciplinary hearing meets this minimal reliability standard so why wouldn't be existence of the cell phone near your client as well as the letters from slater suggesting that there were texts from him why would that be sufficient we are let's let's go through the evidence that was offered at the disciplinary hearing first much of the evidence doesn't prove at all that my client was using the cell phone that's what he in the farthest corner of the room from my client's own testimony also established my client had no advance knowledge that this the shakedown was going to occur and it as soon as it began he was required to move away from the  move away from his box or the fact that it was found on another inmate mung well then what about the letters from this lady let's address the letter from it's later first of all we have one primary problem with the letters which is  never received those letters his head his testimony is whether disputed issue of fact or the jury was intitled resolving him in his favor that he never received the letter he didn't see them before the disciplinary hearing he didn't see them during the matter for two reasons firstly gives mr page the opportunity to falsify these letters to the extent they were not already forged and raises questions about their their reliability second it makes the author of these letters whoever he or she may have been in effect a confidential source the requirement to evaluate the evidence offered in disciplinary hearing and got first burton this court held applies specifically to confidential sort statements of confidential sources and the went on to hold that the defendant's failure to properly investigate the statement of the confidential source heightens the suspect nature of that evidence undisputed that no one investigated these letters no one for example contacted the author even though miss many dreher the hearing officer testified that were taken of little as five minutes to do so no one made an effort to resolve the conflict between the names on the antelope and the name the letters are signed on it says nicolette slater on the arm but it's time by erica or eat no effort was made to determine why one letter isn't a different handwriting from the other two and no one made any effort to verify the very specific statements made in these letters for example at one point one letter says i received all fourteen text messages you sent on july twenty ninth two thousand and nine no one ever bothered to check the phone to see if there were fourteen text messages sent on on july twenty ninth two thousand and nine the phone was never with the phone phone was not at the disciplinary hearing it was at the trial but it was never turned on the letters also raise suspicions like a woman screw on common sense and experience says we do not hate letters like of that at face value now the only other evidence that was offered a disciplinary hearing here is the charge on bringing the incident report adds to the list of evidence that supposedly still supports that charge that list of evidence include save multimedia voice text messages verbal and written statement and statements of confession none of that evidence was presented at the disciplinary hearing none of it was presented at the trial of this man he is making a clear statement of objective lee verifiable fact it would have been easy to produce that evidence at a hearing or at the trial when he failed to do so it raises it raises sufficient visions about the his disciplinary charges in civil court to make it insufficiently reliable to constitute was not that she considered his pages a motive in this her testimony was the hearing consisted of her reading the chart sanders denying the charge and her farming detroit she further testified that the only that generally speaking the only reason she overturned a charge is if the officer has cited an applicable that's in that brief amount of time sanders did not have the opportunity persuade her and since he did cite the right rule for disparate proceeding that satisfied those procedures which features of the the inmate must be right advance written notice of the claim by lation must be given a brief period to prepare must be able to call witnesses and present evidence and what are you reading from which whether or not there was an impartial decision maker refers to wolf that you think it says that where do you think it says that all of those procedures have to i know it makes specific reference to the procedures that the problem on that front is these letters were not in the notice of the the notice of charge and again the testimony was that the letters and sounds were never provided to my client either before or during what in wolf says he has to get i mean a criminal defendant in a federal criminal case doesn't even get discovery before the trial well wolf discussed the fact that when the evidence changes between the notice of charge and when the notice of charging the disciplinary he was and here the charge does not make any mention of these letters in my class had no way to know that they just did so he had absolutely no way to marshal any sort of defense as to he was not even allowed to see them during the disciplinary he again if that's the primary evidence on which this disciplinary proceeding relies no matter what standard you apply he was not given an opportunity to persuade mr mayor because he was never even before the opportunity to see what you see the letters and what is the record show about that but about how the letters were introduced in law why he wasn't supposedly allowed to see them we have his testimony that he we have his testimony that he said he was not allowed to see them we have say i asked the hearing officer to look at them and she refused to let me see them my client did not know that they existed until he received the notice of evidence relied upon and in the right made reference to a letter that was it was my heart session where that was the what sort of grievance procedure they have in this facility for somebody who is disciplinary hearing like that there is there is an appeal process your honor you know what what what if anything did your client take advantage of he  the letters so that he could make whatever arguments he filed a number of grievances separate grievances that said i understand there are some letters that i haven't been receiving i want to receive i should be receiving my mail a or that whether that's responsive to my question or not in the administrative appeal of the disciplinary action did he request i frankly do not recall as i is i stand here and say that they were certainly in the the sneek he didn't see earlier i'm not sure that he did have the opportunity the opportunity to obtain obtain those letters  well we know that he had not received that's why i asked if he requested them yes your honor and i do not know if i may just briefly address a few other points that were raised on the prima facia case on the elements my client was proved again we did offer rampal evidence of the fairly harsh punishments he was subjected to that included thirty days solitary confinement that included sixty days was privileges you had a reduction in the best of the worst and he lost his job he also history between the parties on the complaints that were raised in these grievances in the links to which the page had gone to have that complaint with drawn on an earlier occasion we had evidence that page had commented that he did not need these sort of complaints pending against him due to his pending promotion we have it missions from page that he had in fact violated committed some of the rules violations that were alleged in these grievances and that those were potentially fire that he had been using a cell phone two days prior to the shutdown so he knew mr sanders knew he was the target of investigation about using a cell phone regarding the letters mr sanders own testimony on cross examination at trial showed that these letters met a minimal standard of reliability which was all that we had to show under god versus burton the letters arrived by united states mail they were opened by the mail room supervisor she testified mr page was nowhere in the building she open the letters she read them and screen them accordance with a t c policy and when she saw that they were evidence of a rule violation she made photocopies of those letters provided them to a b c security personnel and then forwarded the originals on to mr sanders he admitted that he knows the author nicolette slater that is her name but that she goes by the name of erica mr sanders testified that he knew her and he was corresponding with her back in july two thousand and nine when the three letters at issue  sent mr sanders acknowledged that miss that miss later was a friend of his that she lived in michigan and that the letters were mailed from her address he confirmed that the return address labels on those letters were correct mr slater significantly authenticated the handwriting he said yes the first two letters certainly look like her handwriting and she was mad at me at the time that she wrote those letters and the statements in those letters sounded like things she would have said to me at that time his testimony itself validated these letters or honors and so there really should be no question those letters standing alone were some evidence before the neutral hearing officer that he had committed violations of a t c policies with regard to cell phones regarding the hearing process the court is correct that the wolf due process hearing standards don't apply in this case there was no liberty interest at issue with regard to mr sanders unlike in hartsfield where the inmate did lose good time credit and lo his liberty as a result of the adverse disciplinary decision mr sanders did not lose any liberty interest and understanding versus conner united states supreme court case the due process standards outlined in walk down apply nevertheless we met the standards in this particular case he did have advance written notice of the charge in the evidence upon which it was based the charge that it was based on written statements collected during the investigation that's all it needed to say mr sanders did have adequate time to prepare nine days he had an opportunity presented the dense to prevent present witness statements to make a statement said in his own defense and then the hearing officer did provide a written decision so that's really not an issue in this particular case just briefly on the attorney the issue counsel didn't evidence that the district court abused its discretion when it denied the second motion for attorney's fees the court found that the requested thirty eight thousand dollars and these were without question on reasonable giving the the minimal relieve th