he sasso on behalf of martha santos i would like to reserve two minutes please the due time the due process clause protects individuals from arbitrary government action by requiring that an individual have the opportunity to have a hearing that occurs at a meaningful time and in a meaningful place and on the undisputed facts in this record that did not happen and where the state court contrary to the supreme court's well established due process jurisprudence explicitly said that it was not going to second guess prison officials or their application of the regulations to santos it clearly abdicated its responsibility to so i feel like nettles leaves this case in a bit of a mess because i think because there is he's not in the shoe anymore and you had to ask her litigation what's really at stake is the gang validation and its other consequences and if you were bringing that part of what's left today wouldn't it have to be in one thousand nine hundred three action the issue that the court's addressing is this now this court oh i don't think it's moot but what i'm worried about is whether really it's still a a b s case where you honor i think spencer the kemah answers that question in order to be able to proceed in a haiti is you have to be in custody at the time you initiate that's the only in custody inquiry after that if there's change circumstances spencer became a clearly states were in moodiness analysis at that point and the issue is whether there is a remedy that relief that this court can provide is there still a concrete injury but when that remedy the ability to initiate this action as a hey b s but i think both spencer v kemah and friends of the earth clearly set forth that once this court or in this case a court has actually specifically said he had a viable legal action and he was able to proceed now we're years down the road and the issue is is there still a remedy that this court can provide friends of the earth cited to  also like kemah talked about just because an individual is transferred out of the custody of which they're complaining of that doesn't make the case the case can still proceed the standing o i guess i'm not disputing that there's article there's not an article three moodiness problem but i'm wondering is the remedy that i think is now kind of in play is can he be gang validated for purposes of things like extra monitoring extra supervision the possibility of other consequences of being a gang member i think if you were bringing it today it would be a nine hundred eighty three suit and i also think maybe he'd be better off with this as a nine hundred eighty three suit because he wouldn't at the deference so i offer nettles i'm wondering why we're still calling this a hideous case well your hon r the state can't suddenly vitiate a valid legal action yes but the question is this and this was involved nettles as well if it isn't even if it doesn't for you first of all the second of all why couldn't we do that well the downside of it at this point in terms of just simply sunk cost in this case in the amount of time talking to us has been wrestling with this since two thousand and ten and he brought what court clarified was a valid hey vs petition the government has engaged he was still in the shu then and there wasn't a settlement saying that he couldn't automatically be put back but yes that's that's correct when he initiated this action he had he had the right to do so the government has now through its voluntary actions taken him out of the shoe for the moment he could very easily because of that validation be sent right back to the ship but not just because of well you think that the facts of this case show that that's pretty much is the case because but the what the facts were before ashtar askers settlement your honor i don't i don't think that because that litigation has been ongoing thing it's very clear that doesn't impact what i'm talking about here in fact in that case in that litigation it shows exactly what i'm talking about here can easily reoccur which is this case initiated when santos was a victim of battery and then a week later on the clear blue sky there comes a confidential informant saying oh by the way there was some other secret assault that happened two minutes earlier and it was gang related now if that were to happen today with this gang validation in place he's right back in the shoe he's back in the shoe for twenty four months to their due to the step down program so this gang validation has it's an express ticket right back to the shoe based on nothing that santos does wrong he simply has to be a victim of a battery so what would be the harm for your client if we said from now on we're calling this a nine hundred eighty three suit and you don't have to worry about the difference well if we transformed it right now we're able to proceed right now as opposed to starting all over again and that would be that would there would not be an issue with that if we wanted to transform it big because it's very clear there's still a remedy that this court can provide so this is not a case where there's not a concrete injury that can be addressed here so if the court wants to relabel it in one nine hundred eighty three and proceed on that's not an issue but i don't think it's necessary to do that under spencer become a i think that case made it very clear that the custody all we're talking about we're talking about custody and jurisdiction is when the suit was brought at the moment in time when the suit was brought so that he's cleared that hurdle here so because there is still a remedy that this court can provide indeed the remedy in the initial decision this court identified to remedies that santos was seeking one of which was expungement of the gang validation from his record and two was released from the shoe the same remedy that santos has been seeking for instance from day one and this court identif that he was seeking he still seeking and this court can provide redress so i don't think that the just because the state has for the moment taken him out of the shu should be held against santos and his valid due process three well he's santos is addressing the custody component yes for the moment they've taken him out but the the ticket that was punched is still there the collateral consequences are still there it's still a custody case unlike in spencer became aware the individual was no longer in custody that's not the situation here he's still in custody his ticket has been silent all the nine hundred eighty three claimants who want different conditions that there's no doubt that he could and would today have to supreme court was wrong that clearly as well there's there's two issues here in terms of is the court talking about the clearly established due process where the individual has to have sufficient notice to be able to marshal the facts against them and be heard by the decision maker prior to the decision maker making the divorce yang validation correct that that's fundamental due process that's wilkinson b austin which builds on the matthew to be eldridge it builds on but how do we know that the state court had to treat gang validation as a sufficient liberty interest well i think that the well first the state has already conceded that it is sufficient liberty interest in term well when he was in the shoe when he was on the show and that's the that's the issue here he the custody component has been satisfied this is stemming from the custody component so the issue that that is the custody issue that has been at the heart of this case continues to be at the heart of this case just because the state has taken him out of custody for the moment they can very easily put him right back there just because of the gang validation so that's that's the substantial liberty interest  protected liberty interest main my understanding is that your main complaint about the notice was not receiving adequate summary of a certain document there's question and well that's that's one of the questions i don't know but that it's only material if it would matter so the question is why would it matter less certainly matters in terms of if you're being accused of being a block heroin a specific  cell block at a specific time that being afforded the opportunity to defend against that allegation is categorically different than being told you have an old necklace and an old address book and what seems to be somewhat racist musings of a gang investigator that says all mexican nationals are involved with the mexican mafia that's not the same opportunity to defend and the but before we even get to that there's the issue that his gang validation was on january twenty seventh two thousand and eleven and at that time the state acknowledges that he hadn't been provided all of the sufficient information with respect to one of the source items based on that alone we don't need to get into the evidentiary dispute and this court can grant the hevia out right based on the state's concession that he did not have sufficient information at the time the government acted to validate him as a gang associate ok your time is up thank you very requirements they're following fees there are certain mechanisms they need to go forward he might need to amend or something or file an extra fee that's correct because at this point he's basically challenging a prison gang  there's no actual controversy because he's been released from the ship but he still has the gang validation that still has some automatic consequences like more monitoring and more supervision right and the possibility of a thing returned to the ship well the collateral consequence that was a  of five was the fact that he might be unjustly attacked in the yard or attacked in the yard unjustly found guilty of a prison disciplinary and i thought they also talked about how he's going to be subjected to more monitoring for being a gang member and isn't that true under the regulations he went to a different type of custody close custody but that was for one year he was released from the shoe i thought under the regulations gang members had to always be monitored more is that not true  mean for classification purposes prisons use all information the more information the better and classifying someone but a prison gang validation so it does not affect  their classification score it's not going to affect the facility level that they're in necessarily under the regulations there's no regulation that says gang validated people need to be monitored more well it is certainly certainly something that's taken into account and a classification decision but as far as the classification scored facility level i do not believe under the regulations that it has in effect because he doesn't have a liberty interest in the more i mean placement in a maximum security housing unit may constitute an atypical and significant hardship giving rise to a liberty interest and here's liberty interest  that comes from his gang validation will track their movement monitor to monitor their conduct and take i don't even know how it is word in her diction action is necessary sure i mean it is a factor that they would consider it so those are things that happen well no i'm not sure why your time of classification aren't those aren't those the consequences that automatically follow from going validation that other people don't face that it's true ok so then this case is not moot there is an automatic consequence for the gang follows from the gang validation that is automatic and means there's still a controversy about whether he's going validated or not i understand but if it still would not fit under havey it's corpus because we're still talking about a federal law and the nurse hewitt and austin was directly addressed the process do an inmate is entitled to some notice that he's being considered for a transfer to how we stripped of housing in an opportunity to present his views and there is ample evidence in the record to support the fact that mr santos received all disclosures he certainly received notice or a notice of the factual basis the evidence includes that the holes and to interviews as  valving a loss of credits in that context but in this context this is a prison gang validation and a test applied in one context can be applied to a different cont yeah i'm sorry but even if the test is applied to the district court decision the state court decision is finding some evidence or not contrary to clearly established federal law there's the address book there's the war shield necklace the informant and defying him as support kero and under bruce vs heels in which this court applied the some evidence to us any of those items can constitute some evidence to support the decision with respect to move next the burden is on the government to prove that there is absolute absolute clarity that there is not reasonable chance that the situation would reoccur the government the state here is shifting the burden to the  to santos it's as the court has established clearly there are collateral consequences here and the big one that we're not discussing because it's not a basis for bringing a hay b s but obviously the the decision effectively transforms his sentence from life with parole to life without parole oh why is that why i think common sense would tell us that a parole board is not going to be releasing an individual who is considered an unrepentant active gang associate of the mexican mafia i think that's fairly it seems fairly common sense that that is a sort of the elephant in the room here in addition to all the other collateral remedies and so now i understand that but there are some recognition that you might have been a gang member once but aren't anymore his option is to brief basically and you can't be brief if you're not a gang member so he's in a catch twenty two where he has consistently contended that he is not and i do not believe that there is some evidence to support that with the record as it is the government the state is very happy to take the representation is that it made and the state court adopted without making any sort of factual findings or affording any full and fair hearing to resolve the factual dispute as a factual dispute with respect every single item on that the address book that was seized did not have the name in it that the necklace this eternal warrior shield is an undefined term the nobody has has said what it is does it actually mean something is this that and a confidential informant there's been absolutely no assessment whether that individual had firsthand knowledge of the accusations that they're making all of those are material factual disputes aside from the very big one which is he contends he was never provided notice that he was being alleged of being a block carol in a specific unit at a specific time two years earlier which i would contend the state doesn't even take seriously because if they really believed he was a block arrow they wouldn't have validated as a gang associate as opposed to a gang member and they would have waited two years before taking action so there are some serious credibility issues there was no evidentiary no chance for someplace to put forth his version of the facts in the record and based on that if nothing else the district court abused its discretion under taylor b maddox and hurls b ryan and not affording him an evidentiary hearing but i believe that this court can decide this hey b s out right on the basis that the state acknowledges he was not given the sufficient information with respect to one of the source items the government was relying on to act against him ok thank you very much the case the sente