the facts are very brief in this kind of a procedural appeal but mr smith had filed a claim before the arkansas claims commission alleging negligence against the arkansas department of correction that claim was it was first submitted to the magistrate who originally denied the motion recommended recommended recommended denial and judge marshall the district court did not accept that recommendation and then it was the recommendation was changed to dismiss it based on race judicata collateral estoppel and that recommendation was accepted by judge marshall mr smith my t that it was to me that's the distinction i think legally though your honor that's that is a distinction that's recognized by some of the cases that we've cited and and we what we try to do is to show the so on the race you to kind of claim if i may to address that is that we think that the that the district court understood our argument that there was no jurisdiction because the the court said if there suit to get someone in its official capacity does not bar claim to get someone in the individual capacity and so irving versus dorm are and headley versus bacon and vogel versus turner is a minnesota district court case that takes both of those and talks about them but those irving and hedley are this court's decisions and they explicitly say that a suit against someone in official capacity does not bar against that person in a personal individual capacity so we think that those cases stand for the proposition that race to the cottage should not be here because it's not the same parties in their privies which is one of the focus primarily on the collateral estoppel issue and i would suggest to the court to this court that although district courts have addressed this this issue of collateral stoppel in this situation that i'm not and tried at before the claims commission because there's different elements and this gets to that farmers versus brand case that we have cited and that's discussed in the patent versus our two case and that's a district court from new york and i realize that's binding in any way but we believe that the court there actually the magistrate recommendation is more detail and it's accepted by the district  very well deals with all of the issues that would say collateral estoppel should not apply here it's two different claims two different issues the elements of an eighth and then the claim in the context of section  three are are different than the negligence claim presented against the state so well now in those proceedings before the commission and does the commission evaluate whether the witnesses so so they must be evaluating negligence by the employees right perhaps not specifically and which ones we don't know but but the record does reflect that that mr johnson the that precludes you from arguing that you need even more demanding standard of deliberate indifference i think about that i don't believe that that that precludes the opportunit sued in this particular case did not do anything to stop it right so took the commission just assume with me for a minute that the commission found johnson in your man johnson was not negligent the correctional officer was not negligent in protecting issue and why should that preclude you from now arguing that not only was he negligent but he was deliberately different i don't believe that is that that is pretty close of particularly johnson was arguably not the focus it was the home asking you to assume for a minute if that were the only evidence that that would be the only having all that that was the finding that johnson was not namely if that's how we interpret this order know any authority on that i don't have any authority for the words position but i have no one way or the other i think the pack verses are into this case would would would do that and also one case that i had  sided with i hadn't developed for the court was perkins vs use which was an eastern district of arkansas case where it was not clear what was actually decided before the ark commission they denied precludes to the fact and i think that case although i don't have a copy of it to read to the court but but that that is what that case held and that was from the eastern me whether the one related to jurisdiction was denied or not i cannot tell that from the record when there is an order denying the motion and there's two separate motions filed on two separate days and i'm not thank you your honor good morning i'm christina hide from the arkansas attorney general's office and i have the pleasure of representing the apple e in this matter who urged the court to affirm the district court's dismissal of mr smith collateral estoppel is wholly dispositive of mr smith's nine hundred eighty three claim and so therefore it's not necessary for the court to decide the issue of race judicata in order to affirm now the district court did  at how the climate defined that particular legal cause of action we look at the specific facts in the court said at the nucleus the operative facts are the same in the first action and the second action then the second action is bar because they present the same claims or causes of action and then they're collateral estoppel it would be barred because the court would consider that that that a pal and had presented the same issues would that be true if the a c c didn't have jurisdiction which were your position at least really on the a b c did take the position not the attorney general's office the eighty's the take the position that the court didn't have jurisdiction over the one nine hundred eighty three elements but the to property and failure to follow policy which resulted in a personal and that's that's what was kind of confusing the first opinion says types of claim failure to follow procedure or loss of property and then the reconsideration says personal injury loss of property so what was actually ridiculous and how do we know that we look at the record and we look at the documents emitted by mr smith he filed a complaint an amended complaint and a brief course of the investigation for engaging in a fight but then the other inmate and he was just trying to punitive segregation and as a result of that disciplinary action he lost some property so both of those orders represent the three issues  drifter for the arkansas claims commission the violation of policy our allegation which he days resulted in him being attacked which is a personal injury act back and then the disciplinary action which resulted in his loss of property so we know from mr smith in a claim in arkansas claims commission for state law negligence they that case was dismissed the length and then filed a second cause of action allege in violations of federal law specifically the securities exchange act and rico and this court said we don't care what label they put on their different cause of action you can't redress your facts and call them something different to preclude or to get around race judicata and this court found in lame vs peterson that the issue of personal injury whether or not mr johnson specifically as it relates to apple to the apple leaves whether or not family johnson was responsible for mr smith's personal injury which occurred because he was of fact from the crime commission indicate that the respondent that i'm sorry that mr smith had failed to prove by a preponderance of the evidence that the respondent was negligee and because we know from the two orders that they were considering the issues of personal injury then while a property embellishing a policy that they necessarily and also because we can review mr smith specific allegations we know that they were necessarily considering those issues date even if they didn't express lee stated in the order we can conclude that they necessarily considered it by virtue of not changing their position on the first motion in the first order denying that the claim and the arkansas claims commission ahmose entirely if you read his brief in support of his complaint he attributes his injuries at the hands of the inmate to mr johnson's decision to move him from one area of the prison to general population mr johnson is a witness on behalf of the state testified at the arkansas claims commission and mr smith's grievance which  parents both dealt with collateral estoppel where an inmate at first thought recovery for loss of property that is five but the amount of money that the commission awarded came to the eastern district of arkansas those district  and she was seeking monetary damages against the individuals in the one thousand nine hundred three case that's not the issue here when you're comparing claims commission versus district court mr smith is that all time the king money damages them both the claims commission and in district court i think it's important that in that claim commission he sought a damages for facial disfigurement medical mental health in the amount of two hundred fifty thousand dollars his one thousand nine hundred three action those same damage it the claim that caused the personal injury the motion to reconsider day and i think we can have fair infer that after that order comes out mr smith found a motion to reconsider that second order couches the the evidence that we are all of these issues and we don't need to reconsider them on the personal injury the property and the failure to follow up on how to how come they've declined to reconsider something that they didn't decide in the first place i'm trying to be here to articulate that mr mr smith's position was that mr johnson failed to follow procedure when he moved him from an area where he was not has with other inmates and place them in general population as a result of that failure mr smith that he was attacked by an inmate so that was the theory of his personal injury was the failure to follow procedure so we look at his complaint we're going to see that yes and you and you'll see it in  crime commission and you'll see about in the district court i'm not tell you to follow procedure relate to the loss of property to i'm not sure i believe that the loss of property was related to the fact that he got  i was i was looking hurriedly at what we had in the record about what happened before the claims commission and frankly i don't i don't see the can why there is a brief in support of the complaints but i don't see the motion for reconsideration there is an order denying motion for reconsideration i suppose that what i said well what can the issue is she correct that the theory behind the personal injury claim was at least in part the failure to follow procedure that's what i was looking for here are because there there is this brief that is at page it's actually in the district court record it's a page forty five of the appendix we we don't have to my knowledge in the record the things that that she was suggesting if you read what he says in the district court and his brief in support of his comply the procedure is part of the issue at least at the district court level what i was trying to get to with with this point is this is why the perkins v use case occurred to me last night had more importance than i thought because in that in that case judge jim moody said that the prisoner's one thousand nine hundred three claim against the prison officials in their individual capacity was not precluded by the earlier claims commission action because in this is the quote it is not clear whether the issue the claims commission addressed was a democrat to the one raised in this lawsuit nor is it clear whether there was a final what was inside of the sun clear clear because they might have just said that somebody else was not negligent or that johnson wasn't what will why isn't it clear that they said johnson was not negligent in allowing the other inmate to harm smith well why i don't i don't know your honor i think the answer is we don't know and the reason that's important is there's a presumption that it's not decided which we cited in some of our papers here we think that the the courts the courts question appropriately takes the position that perhaps you know if it's absurd and i understand the court's question but i don't think that the record before the court or before the district court would tell us what was decided what was actually decided and that's why i think that that perkins versus use which is a district court opinion and packers are two sides which is a new york