of material fact about whether the defendants violated mr smith's th amendment due process rights when he was given three hundred and sixty five days a full hear of disciplinary detention and was transferred to the maximum security iowa state penitentiary because of allegations of misconduct that a state court later expunged from his disciplinary record where you're starting with an issue that that bothered me as i prepared on this case and that is the standard review i wrote i wrote an opinion saying that this was an issue of fact a tip significant an atypical hardship but in reading or reading again wilkinson which may have actually been after the portly l decision i think the supreme court considers it an issue of law which is quite quite typical of the court to to take a quick and cost to shal issue such as that and reserve the ultimate ruling for itself which makes it an issue of law have other circuit courts considered this to your knowledge yes your honor respectfully we will consent to suggest that after the sandan decision whether whether detention for th amendment purposes which is very fact into effect intensive was an issue of of fact or law and my research suggested it had to be one of law because every time the supreme court talked about what it was doing it made it conclude it reached a conclusion it did not make a finding and are divided in thank court said yeah and it's an issue of law even though it looks like an issue of fact like negligen so what do we have here and what how many circuits of even looked at this thought about you know this course in the williams v norris case sassed and evaluated what happened in  appropriate the court actually reversed the court on summary judgment finding that under the due process claim the court needed to determine as a matter of fact whether the detention in that case was appropriate and whether the reviews that were conducted of the defendant's detention were sufficient under the due process clause we believe that after williams versus norris in keeping with wilkinson and keeping with sand and that this is an issue of fact but it's also important that we talk about wilkinson for another reason your honor and that is because wilkinson demonstrated that even in light of sand and an inmate like mr smith can have a photo with amendment deprivation under the  process clause the constitution says that the nature and the conditions themselves are what we have to evaluate under the wilkinson precedent here mr smith's confinement was substantially different after he was disciplined and after he was transferred because he spent an entire year three hundred and sixty five days in disciplinary detention and then he was moved to the states only maximum security facility it's also important to stress that the wilkinson court wasn't determining the are not identical to the facts in wilkinson but the court explicitly said we're declining to reach the issue of what would constitute the minimum required for a deprivation and the district court in this case found the same it said does not describe the floor for what constitutes an atypical and significant operation that was on the th page of the district court's opinion it's also important to note that sandton which is the case of the defendants have relied very heavily on both certain discipline can give rise to a protected liberty interest counsel that's all true but don't we have to have facts in the record from which we can make a determination showing the impact upon  exactly right that the trial court needs to do a comparison of what the inmate was encountering before the discipline with what he encountered as a result of the discipline we know here that he was in disciplinary detention for three hundred  until the until the decision was undone by the state court no problem nope well it's not only there's nothing to compare they were there the same amount of before the discipline he wasn't in disciplinary detention he was in the general population in fort dodge it wasn't until after the administrative law judge made the finding that is around a point out was eventually undone a couple of years later that he was moved into disciplinary detention at the fort dodge the disciplinary detention itself described it's described by mr smith as quote he described it in a couple of places in the record as are being looked at to various interpretations groups that's exactly right  honor and that's why we believe this is an issue that should have gone to the fact finder so that the fact finder could determine whether that sort of us in the hole for three hundred and sixty five dollars days allowed in with of the other facts that demonstrate the deprivation that he suffered rises to the level of being a th amendment problem we agree with your honor that that is a factual dispute and there are multiple interpretations talking about the transfer i thought the the rest of the remedy was granted with respect to the the the disciplinary detention in both facilities and that this suit is all about well they didn't let him go back to fort dodge that's correct your honor that the initial claim that mr smith brought was about both the detention and his transfer and his transfer to the so the detention is not is that an issue on appeal yes if you're on it it still is an issue because he's how because he's brought a claim and it's been remedied well your honor we would respectfully disagree that it was entirely remedied sandra dissenters made clear in the sand in the dissenter said that the no harm no foul argument which is similar to the argument that you're making your honor isn't necessarily making an argument that no harm no foul determination that because he's no longer in disciplinary detention and because he received three hundred and sixty five days good credit after the state court expunge that from his record doesn't necessarily cure the potential violation of the due process clause that was what the dissent the two dissenters and in sandton said but you're correct your honor that you're correct that we are challenging the transfer to the iowa state penitentiary and to go back to question judge ross about the other facts that we have with what's that makes it gives a right to continue transfer to different facilit a particular institution but wilkinson made clear that there can be a liberty interest in a transfer if the conditions are stretched process that rise to the level of providing a significant in a typical hardship then if there were  eligible for parole last that eligibility inmates in this case one of the facts would indicate if conditions would be substantially different in the two different facilities change in his chair status and his security points the fact that he was unable to earn a job and make money during the year that he was in disciplinary detention the fact as we mentioned in our brief that just like the discipline in wilkinson the discipline here is indefinite he was transferred not for a particular term is often the case in the cases in this context he was transferred indefinitely and he's been at the iowa state penitentiary now for more than five years the totality of those facts are what we believe should have been submitted to a trier of fact so that they could determine whether that rises to the level of being a significant an atypical hardship the fact that the court didn't do that means that mr smith was deprived of his th amendment right i also want to make the point that we're not asking this court to do something extreme or substitute its judgment for that of the prison and the warden we appreciate that the cases have said that courts do not want to federal courts don't want to substitute their judgment for the judgment or for the judgment of the president we're simply asking that if the court finds that there was a deprivation of the due process clause that mr smith be given the adequate process that the presidents are already set up to handle they can do hearings they can assess whether his confinement is appropriate continued as it has been indefinite for five years and that's all we're asking the court to do and around it because we believe there was a material factual dispute it's a trial court dealing with before certainly there isn't a declaration or an affidavit in the record describing specifically the whole and certainly it would be helpful to have something like that but our view is that it's not fatal to mr smith overturned in the state court in the state court judge didn't address the question so you're saying he had a federal constitutional right under these circumstances to be transferred back is a federal we believe has a federal constitutional  process to determine whether it would be appropriate to transfer him back we're not asking the court to say that was that exhausted it was pretty the question of whether he has a right to be transferred  was was there a grievance filed with i ask the or whatever the transfer decision maker would be saying given the state courts order absolving me of this prior discipline i have i ever right to be transferred back to fort i yes or i don't understand the question yes there was mr smith list and what is that in there is that the grievance decision in the record yes your honor mr smith after the decision by the state court he fil administrative appeal now does the state resist the transfer back for reasons with with an explanation that this that was that discipline wasn't the only reason we transferred you know that's not what the state said the state said that we have restored your three hundred and sixty five days of good time credit and we're denying the rest of your request that was it there wasn't a detailed explanation they say here that there were in fact were reasons that he was transferred in addition to or over and above the specific sexual assault discipline if they do in iran or but those facts aren't in the records in administrative law judge didn't make that finding and  when it was reviewing his appeal didn't make that finding either and i see your honor that my time is almost up and i'd like to reserve the rest for a bottle is a law it's a question of research whether others are i asked the uk posing council what other circuits of gun and they got no response to did you look at that now i mean williams versus norris was after wilkinson it certainly would have taken portly l as the governing a circuit law that it's a question of fact unless it was argued that wait a minute wilkinson implicitly overruled portly elf that's a serious question though the record is that what he spent three hundred and sixty five days in segregation we don't know what that is actually the conditions of that segregation they definitely help us i mean you know it's not what you're trying to do it's a term and rather what you're free for argued that that because of those statewide protocols the record permits supports the inference that the whole is the same and for dodge and i's be exactly ok that's exactly correct and i too though was a bit confused upon i guess what they're saying is it's the transfer from segregation at fort dodge to i s p which is the same level of but it's clear under me chum the supreme court case that prison officials can transfer someone for any reason or no reason at all and in this particular case the record is clear that this isn't about the transfer it's clear that number one the defendants in this case did not even make the decision to transfer mr smith from fort dodge to i s p it w made by offender services nd of all there were many other factors with yes granted that the discipline the sexual assault discipline was one factor  but a primary factor was the threat that mr smith made after he received the disciplinary notice to councilor money who was not discipline but not ordering him transferred back understandably and he grieved and counsel says there was no reason given another lots of reasons given by you and your brief i don't understand there should have been an exile there should have been we should have more of a record on why your client denied the transfer back dodge furthermore he's about the transfer is indefinite he's indefinitely at i s p that's just simply not true the reason why he is currently still i s p is not based on this discipline or anything to do with that it's about his subsequent actions and various serious  could see that it is very relevant in the grand scheme of things i'm not sure why it's relevant to is the due process appeal were considered well go back to the wilkinson case case in this case he was sentenced to the sanction from the discipline was two hundred and sixty five days to me this is this this is  a transfer grievance issue posing as a sand say in the nation primary i don't i don't know once he's gotten remedy that he considers inadequate for what the state a l j and what's did he go back to the state court saying hey they didn't make me whole now so that is then his complaints are with the prison the ministry since we're talking about conditions of confinement and place it's my interest it's and so what where do we get where do we get this question of whether he'd have a job if he was back at fort dodge and he can't have a job it has p and so forth well he could have a job at i s p just as much as he could have a job at fort dodge  and there is no constitutional right for a job in any way that's clear his security point he brings up the security points he can work his so his security point is he has no constitutional rights in those either they don't they clearly don't create a liberty interest you don't have a liberty interest in your security points under sam done security points so there's no no difference there he did not your honor and judge will can this is not a case of retaliatory think i think that actually they prevail they found no procedural due process violation right the lower court had found right but then but we're not talking what's what's the process what  procedural process was the denied we're all talking substance this morning by chance i thought his claim was that he had suffered a typical or significant hardship due to his administrative or right segregation correct that's absurd just clear something up here i think we are they end and you're comparing segregation not to what his life was before or after the  through the due process front door now what's the underlying deprivation claimed here i didn't go back and study the complete his underlying due process claim is that he was put in segregation for three hundred and sixty five dollars days and that and that he lost security points in this job procedure to question this significant a typical deprivation i'm being subjected to but that isn't the claim here claim here is this just it's of it's it's unconstitutional right i think i haven't studied the complaint so he's got a two step he's got a i got to get i got to have a it's got to be serious enough to get me in the front door and then it has to be so serious that i substantive due process fort dodge correctional facility so he said to the iowa state penitentiary in his grievance form that he wanted to be returned that appeal was denied and there were no additional reasons given to go back to judge logan's question about why that