please the court my name is eileen kim i'm a start if i lost didn't under the supervision of an richardson at u c irvine school of law where here today on behalf of appellant mr burton i'll be covering the washington issue and my colleague what behavior is action it could still be construed as an intern twined heck k b s claim and even if it were to be construed as an intertwined claim this circuit's precedent under mat washington still says that because of levinson certified last student at u c irvine school of law i'll be addressing the baka one in back a two issue the record overwhelmingly shows that there is no balk at two and instead the box has one and two are the same case that was erroneous lee given two separate case numbers by the court although both cases should all of the same case that was given to account numbers should never have been counted as a strike under washington even if this court disagrees with our statement baka two was not a case that mr burton brought at all so your argument is a one doesn't count as a strike under the peel or a close of washington piece of washington and because it sounds in hay vs it shouldn't count but regardless your are still also arguing that because there were some procedural problems with a bucket two it's revealed that it's one in the same correct that either way he doesn't have either way mr burton does not have three strikes mr burton could not there the record overwhelmingly shows that there was no complaint ever initiating the baka to action the only time a complaint ever shows up in the docket at all is over two weeks after the magistrate judge decided made a recommendation for and i guess my question is did he try or does he have access to computers in the in the in the prisons and would he have been able to see these two dockets and piece together the error no your honor mr burton was or writing pad one hour per day regardless of this the ninth circuit has consistently held that where the development of new facts is unnecessary and the facts are all developed below that it can review these issues even if mr burton didn't be revoked and the case to be dismissed there was no judgment entered on a separate piece of paper as is required rule fifty eight and numerate six actions to this rule and for this type of denial it is not one of the numerator exceptions and  court's holdings in the several cases state that where where such a judgement is not laid out in a separate pleading doc and separate document the time to appeal does not begin to run until did mr burton so besides the fact that no complaint was ever in the bucket to action initiating that action even though i have peter quest that the court received and the court clerk presumably used to open up that it was and i have peter qwest that was sent to mr burton in july when baka one was still being litigated when he filed that document baka one was being litigated it's not possible to believe that mr burton could have thought this action will be dismissed in the next few months and i should initiate a new case while the first one is still being litigated if there are no further questions i'd like to reserve the rest of our time for  good morning many please the court my name is brian can i represent the defendants in this case this court this court to dismiss this case for lack of jurisdiction because the notice of appeal was not filed within thirty days as required but if this court is not inclined when the court revocation of plaintiff's ifi status and the dismissal operated as the final judgment and and that and because there was a final judgment that started the clock on the notice of appeal period  you present i don't think that has anything to do with the separate document requirement under rule fifty eight there are lots of orders that require judgment to be filed in a separate document and i think it was the supreme court in malice concluded that finality is not affected by that rule fifty eight requirement and in fact can it can be waived can you distinguish malice or do you have any other authorities for the proposition jurisdiction due to some ambiguity in the district court as to which of any of their orders applies as the final judgment that is certainly not the case here but i'd also like to point out even if if he had applied because of the conduct of the court and the parties in treating it as a final judgment that weighs any reliance on rule fifty eight what's your authority for that it's the bankers trust case cited in the reply brief that's directly on point in that matter the court dismissed the case in its entirety and that petitioner filed a notice of appeal everybody acted as though that order was the final judgment so the court said there was no there was no error in treating that and because there was no separate judgment issued they weren't going to rely on that this is a similar situation here we have the district court's order revoking and dismissing the case in its entirety the court instructs the clerk just to close the file that specifically in the order and then shortly thereafter the plaintiff files a notice of appeal and he only missed the deadline by a couple of days that demonstrates his understanding that this was a final judgment it demonstrates the understanding to the court that this would be a final judgment and thus the bankers trust directly apply this is a waiver issue if that's the case that the final order of the court constitutes a separate judgment or was it just the documentary it well it was that it was a documentary that was in order sat and in the order it specified that the case is this miss well our argument is that operate is not the final judgment but alternatively even the fifty eight applied then the then the supper document is the way the requirement is a way because what the action of the  shining on his part that the november first order operated as a final judgment he promptly filed a notice of appeal albeit untimely in this situation he's now after the fact claiming that a mechanical application of fifty eight should apply in order to reopen jurisdiction in the case where up until this point he has operated as though that november as in was the final judgment he cannot now claim that fifty eight should apply when his actions up until this moment have demonstrated that the november first order was the final judgment here bankers trust is directly on point as well the line of cases which constitute that the separate document role can be waived separately i'd like to argue  yes yes your honor i was going to do that regarding the burden of production here here the record demonstrates that over one hundred pages of documents were submitted demonstrating that on three prior occasions the plaintiff brought three actions that were dismissed for a fair to state a claim and each of those cases the plaintiff while he was in prison sought i think the status that meets each of the elements necessary under section nine hundred fifteen g accordingly the burden is shifted to the plaintiff to demonstrate the to complain it shows that the document was lodged received in return all at the exact same time after the district court entered its dismissal order i guess can you address that are you suggesting that the clerk of the court received the complaint from mr burton but then didn't stamp out or do anything with it until the case was dismissed i'm trying to figure out what your argument is in light of what i see from the from the documents and the stamps well regarding the date stamps on baka two yes the october third a stamp is marked received returned in large on the same day but that's that's not uncommon in pro se prisoner cases under nineteen if you where the district court has an obligation under section speculating because it looks like he received the request regarding baka line and that there was confusion at the clerk's office when he responded to that request and there was a lot of stress you know striking out and physically writing on the documents that this was baka to when when you look at the documents and they were filed it looks like he was responding to what he thought was the to the issue is there can the plaintiffs contention is that this was a district court error but in response to that the notice of appeal he directly admits to filing baka to theirs he doesn't say that  he filed the ip request in response to buckle one the two ip requests in both cases are different so here if you look at the timing the second ip requests was not submit it was not received by the court until almost two weeks after the baka one dismissal and that's consistent with his own admission were filed baka two so i think collectively the record demonstrates that he did file docket too and it constitutes a third strike here separately the pla ff cannot meet his burden of persuasion in the case he offers for reasons but each is refuted by the record first and is already addressed by by your honour's the october third filing of the complaint demonstrate that a complaint was filed second and we have we've already touched upon the issue of the district court it was the plaintiff and not the district court that actually filed this case third there was no intent to bring any hay vs here so there  no inner intertwined heck bar where there was a monetary requests or some sort of request to be released from prison here the vague statement about injunctive relief was just that it could not have been construed  hippies claim all mr baka had to do was utter a few phrases i want to be released from prison i want my conviction overturned instead he knew he couldn't do that because he's because yet ours are exhausted  attached those denials to the baka complaints instead he sought monetary damages punitive compensatory even damages for his mother and then makes a rape case the reference regarding an injunction on prison i'm sorry the separate document requirement in order to accept the jurisdiction of a court and this case that's exactly what mr burton did he weigh that requirement and decided to appeal he did not wait until there was a separate document set forth for the october third receipt receipt and dismissal but we want to point out that on september fourth the magistrate judge recommended that it be dismissed so it wasn't all that it happened on october third rather the court had before it even in september the the baka two actions supposedly and that makes our argument even stronger y