well we we did our best to avoid having to address the questions that the court reserved in its earlier decision because of the simpler and more categor loosely here is the continuing violation theory the state relies heavily on a case that we think actually supports our position and that's the  to say that the initial decision barring her is not when her cause of action accrued but rather every time she got a denial and this court said no it was the decision barring her but i think the key point there that i think the state overlooks but that this court emphasized is that she received a formal decision permanently barring her and the court that actually i think twice in the opinion that it was the letter permanently suspending her and not earlier letters that she had received provisionally suspending her that was when her  primarily from participating in what are referred to as special programs and the record doesn't make one hundred percent clear at this point what the special programs were about a lot of those involved religious observ the best of my knowledge he was not again the the record of the complaint here doesn't indicate that he was handed anything in writing or any formal determination and i should point not while he was in administrative segregation that the restrictions were imposed so at some point he gets released yes and there is some communication notified about the restrictions your honor but would not have been notified even by that necessarily that there was a permanent restriction and in other words if there was some if he if you have a suspension claims that are included in the record here because this was litigated in the district court just based on the notion that he hadn't gone through the last two levels of the appeals process which a the court noted he wasn't able to the state was not at the time litigating the correctness of the decision by the appeals coordinator not to accept the claims for filing at the time they were just saying well because he didn't do the further appeals it got so therefore we have this relatively undeveloped record that doesn't fully specify exactly what everyone knew at what time and mr crean never that is not clear from the record there certainly certainly the record doesn't indicate that there is anything approaching a a level of training that you would normally associate with as a whole and the head of the agencies ultimately responsible for the decision here you couldn't even get an appeal up to any was sponsible officials within the even system or with any corrections because he just wouldn't there's a possibility well again i mean i think that the posture this came up in was one where we were not appealing a decision that rested on the notion that the appeals court navy decision was correct we were appealing something that was on the basis that simply that he hadn't gone to the second and third level of appeal this only came up as the state's alternative argument for affirming the dismissal so there are was not an occasion in the initial appeal to fully rehearsing all of the theories but i think that  certainly i don't know whether you would need to call it a stop well but all of these issues i think come into play in determining whether this was an available remedy under the p l r a and whether the initial suspension decision as kind of a one time forever decision until the appeals court later did in june when he said you had to file your grievance back that everyone defend it came eighty eight days after being informed of the first decision on december twenty second in cain's reply he said yes you can participate in recreational programs you can play baseball but i'm not reconsidering my decision you can take it up with the resource manager to review the decision do the resource manager ever do anything mr no never took it up with the resource manager so far as we know on the evidence mr know waited another sixty six days before filing his first administrative grievance in this case minister t you in the meantime received no appeals your honor this is parallel but actually make it was supposed to get back to me he said i've authorized human resources manager to review your quest to participate in paid and other programs and he said you may participate in recreational programs and but i've asked the resource my review your request to participate in other programs as your own well that would mean to me in the law library maka knocks occurred years after this instance well but throughout all cost the continuing violation case law the crux is notice not the with the resources manager the decision was never rescinded it was in effect for the first eighty eight days until the writing of that letter and for one hundred seventy eight days mr no sat on his hands since december twenty second two thousand before find  administrative grievance your argument is that it would go on forever long as he was in there for life so do those restrictions are there for life that's correct or  properly proceed through the ministry of grievances procedures and without time deadlines they become meaningless well you know but that letter that the memo he got from the warden thirteenth of april that indicates or least indicates to me or arguably indicates that these restrictions were not permanent the warden first of all said you can go play baseball and then he lleged sexual misconduct with a state volunteer at the catholic chapel started there was nothing to write they couldn't prove they had confidential sources providing evidence nothing provable but enough in a prison they must enforce their safety and security and part restricting mr know from special programs that he has abused is a sensible and within their jurisdiction thing to do and as to why this isn't a continuing violation not that was an analogy that mr gross counsel brought up for the point of continued violations when they apply when there are separate independent decisions but reinforcing a single decision which was never adjusted never changed in m would you say that state officials in part contributed to the problem by having rules that are so vague no one can understand them and also send in that report on april twenty first range will get back to you part contributed to the problem we have today i think the problem of any vagary on the record is entirely on the shoulders of mr know because he didn't create an evidentiary record by pursuing the proper procedural grievance that was available and they didn't express any umbrage with these deadlines in fact they expressed the distinction between filing in federal court the relative ease of filing they mistreated grievance you point out the problem and the action requested like ordering dinner i'm hungry i'd like the order when shit here filed that it would be on it once you've filed the forms he was informed of the clear decision restricting him on december twenty second two thousand in his case between working days worked out critical decision maker which in this instance was mr cain giving him the position and all this was here and the decision by the prison just needs to be something supported by some evidence what were the charges i still don't know if they were sexual misconduct seems to be confirmation from assange quite an official as to that affirmation of the charges against mr know for his sexual misconduct and enforcing the decisions that restrict him from special programs i'm not sure what an  words this is in response to your letter to this office concerning your programming specifically you are alleging that you are being denied access to religious programs as you know an investigation was conducted as to inappropriate behavior  religious volunteers and c d c inmates although the original allegations were not sustained enough information was developed to educate and overfamiliar relationship had developed in fact based on recent conversation with the warden additional inappropriate behavior by volunteers was discovered i've recently i have personally reviewed the investigation and agree with the findings i will review additional information later this week in discussion with san quentin staff it was determined that some restrictions have been implemented to prevent further inappropriate behavior i'm recommending that you once again discuss this issue with the warden or chief deputy warden that's the finucane for clarification of the restrictions  brings closure to our involvement in this issue what brings closure to our involvement in the issue this was an ongoing investigation into the charges of sexual misconduct decided this ok he's not involved anymore so this is just some sort of ongoing process that my guess is would this be with this ongoing investigation for disciplinary charges against the inmates to see what further steps questions we have i would think that's not necessary given the one hundred seventy eight the lane affording himself that the industry of appeals process actually is not a good idea if you think that mr no it's called informal your honor calling for that's that's the moniker associated with it you would hand the six o two to an official who would review your description of a problem and request that action if you have difficulty writing in english someone would know you're on and that's not inform six or two that is correspondence personally between mr no and if anything how you define formal or informal by title fifteen your honor it's applies t can be applied to him when he is i think he had possibly a court date in san francisco area and was and was transferred for that reason so i don't think that they're being applied in his current place of incarceration but they do apply when and when he is back at san quentin but again this is not based on something in the record this is based on this is not imposed for all that appears as a permanent restriction and in the absence of that where it's something that is that appears to have been impose a relatively informal way without a written finding and not and there's no indication he was told it was permanent then it is something that is at best indefinite continue for some time and it's not a a and to be reconsidered it's not a one time decision as in a case that the defense relies on where this court specifically said in a couple of places that the cause of action accrued when the letter was sent saying that it was a permanent and complete suspension of the attorney's right prior letters that had been sent in that case that were sort of the interim suspensions that was not when the court said that the cause of the action accrued it was only when there was a permanent  a life sentence and there's such a broad restriction as this one that's something that probably ought to be in writing but even if there's not going to be a requirement that have been writing there is at least would have to be something giving him notice that this is not how he's currently being classified but rather that this is a permanent lifetime restriction  even aside from that for that matter we don't know even that he didn't look at his file although let's assume that that he did and the supreme court doesn't say anything about adding that kind of sanction to it if you're going to say that in all instances where it's not clear what the scope is in terms of the length of time of the restriction and the prisoner has to essentially prophylactic leave file a grievance so that if it does turn out to be something that lasts permanently that he can preserve his claim all you're doing then is encouraging  only for six months well first of all there's nothing here indicating that maybe this is permanent maybe not and it's something that he can find out all the indications here if anything was that it was something that was a into a situation of confrontation with prison officials which there is going to be a disincentive for a lot of prisoners to put themselves in that situation and you also have a situation where there is nothing indicating to the prisoner in advance that the prison is going to interpret the rules this way so that he loses all ability to even file a grievance or his federal lawsuit based on the say you know if you didn't do it right then then you're forever barred from doing it so to this question what would you like is for well i think that  that the appropriate thing would be a determination that the prison agreement coordinator was not correct in  strict around years the fifteen day period would start would start to run here again we think it is ongoing but i would say if there saying that you know this other official has started to address this had he gotten a decision from that other official then you can have the fifteen day period starts to run then here because he didn't get a response i don't think the fifteen day period really started to run because he didn't get a  any ruling on his request to lift the restrictions do you think based on this record we can do what you want are sure to go back to the district court to make findings of all these questions we were discussing  star i think that based on the record the court could do what we're asking for but that certainly if the court is not prepared to do that that the appropriate thing would be to remain and to develop a record on all these questions for that it essentially did not start to run because he didn't get a final decision on his request to a complaints about the original period of time until the letter to the deputy warden then the time ran on that but once he filed a request with the deputy warden to have the restrictions lifted then and his complaint of dallas those restrictions being imposed on him on a continuing basis from that point on now i shouldn't have been restricted and you know on december twenty seventh and december twenty eighth of december twenty ninth when he was willing to accept that at the time without filing a grievance but once he does filed a grievance for the continuing decision to restrict and or does file with the deputy warden then i don't think it is his time to start starts to run on that until he actually gets this ongoing decision to restrict and stop that it was no longer justified to the extent that it was ever justified and there is a decision that's being made on an to be said is you're permanently restricted it's one thing to take a disciplinary measure is say you're going to be restricted but based on the way things are now i mean particularly and that's been found to have occurred then maybe the defense would have more of an argument that this is because it's a penalty it's a one time thing that's imposed for something that happened in the past but if the justification is that for in place about whether he's a risk and i'm not saying this is determinative but i think that it definitely does figure into whether the reasonable understanding of the restriction and is that it's going to be permanent or that it's something that we're doing for now and i think that to the extent that this is going to turn on what was whether the reasonable understanding of what restriction was imposed is that it was a permanent restriction i think that something to that would require remand to the district court to to address all of the circumstances about what exactly he was told what he was told  what the setting was and and so forth i don't think that's necessary because i think that under the circumstances this is just told you're restricted without any notice that it's permanent that's enough to take it outside the class cases where you're saying there was a one time thing that has to be appealed right bet but certainly if you're going to get into that went with the rule of law of the comma i think the  the whole the whole thing would be that if you had something that is imposed as a sanction of a definite scope for a definite time then you have to file the grievance within the time limit running right then but that if you have something that is not done for a definite term but rather someone is put in a restricted classification of some sort that  in the absence of something demonstrating that this is a decision now and forever is the understanding is that something that is open to reconsideration on an ongoing basis not merely by reference back to the original decision and so there is an ongoing decision to restrict the person and the time for challenging that runs from the time of that on of each ongoing decision