and with your permission i'd like to reserve three minutes for rebuttal time yes so this court heard this case comes before the court today on ernest porter's thirty three years spent in solitary confinement in the capital case unit otherwise known as death row and the pennsylvania department of corrections during that time he has remained he has had a spotless disciplinary record and since two thousand and three he has not been serving any criminal sentence whatsoever as the eastern district of pennsylvania federal court has bake aided his sentence in two thousand and three he has yet to be resentenced as that they cater decision is basically stayed on appeal in the  been cross appeals on the guilt phase and penalty issues while there's also a state appeal that is ongoing the court dealt with this particular procedural situation in the context of  procedural due process claim two years ago in william versus secretary pennsylvania let me ask you this question because i know you're both halves like williams grove of food tell me what's the specific for a grant of summary judgment for the procedural due process claim that we brought in the district court pursuant to williams or based on alternative argument that if you find williams does not control that under any plausible baseline mr porter's thirty three years in solitary constitutes an atypical significant hardship as to the th amendment claim where we did not raise a motion for sila motion for summary judgment the defendants did we are asking for the court to reverse the district court's grant of summary judgment on the th amendment recognizing that there are disputes of material fact as to the extent of injury and risk suffered by porter as well as the defendant's deliberate indifference to that those injuries and all of the briefing throughout there's been a distinction between the damages claims and the non damages claim the injunctive relief the district court did acknowledge that he was challenging his continued confinement in solitary confinement on death row case before us right that because the commonwealth did not appeal the the vacated your order i disagree for several reasons one of the williams court found that the liberty interest attaches upon vacate or of the death sentence without any reference to the content or duration of appeals in fact the williams court found that the plaintiffs exercised corey williams craig williams and corey walker of their appellate rights on the guilt phase issues was both meritless and disappointing as an argument it was not relevant to whether or not they had a liberty interest in removal from death row i find it very odd that this court has been asked to come to a different decision based on the commonwealth's exercise of its appellate rights but there are further problems with the states but isn't that isn't the difference that there that really is no big kater here because  was stayed in correct in our opinion respectfully disagree with that position the reason being that no legal authority has been cited either but the district to court or the department of corrections for the notion that  somehow deactivates or renders invalid or not yet legally controlling the order that has been stated instead we think that it's it's obvious dictionary definition that it has a temporary pas on proceeding with the next phase in the implementation of that order is what is in effect so it is still the controlling decision mr porter's death sentence has been vacated he's not subjected to an actual sentence but it's not the stay the activity something that has occurred isn't it as the supreme court said that the stay suspends the court's ability to change this them as quo in the st place so there's nothing to be deactivated because it was never activated because the state where did it changes the status it prevents the court from changing the status quo in so far as it does not allow mr porter to be resent inst but the status quo  will share with this court was that mr porter was actually under an execution of death sentence that itself was stated by operation of pennsylvania state court the pennsylvania rules of the pella procedure to ten technical meaning of a stay then everybody in the capital case unit in the state of pennsylvania is under a state execution of death which therefore would not be an active execution of death i think the court can avoid all of these problems by recognizing that in williams the use of the term acted in active was not done with any reference to jurisprudence on those terms these are not terms of art these were descriptors and they were referring to i think from the context of the following whether a death sentence has been lawful imposed or whether it has been held by a court of competent jurisdiction to be unlawfully imposed and therefore not active not presumptively legally correct which is the court noted in a footnote in williams means that life was williams and walker's to lose whenever they were granted that they cater the same with mr porter here so based on sentence was gone from the kids as the commonwealth argued in williams in front of this court maybe a death sentence from that case was gone but not the death sentence they argue that the death sentence could have been  reimposed at the recent unseen that's why williams and walker had to remain on death row here they're arguing the death sentence can be reimposed by the rd circuit court of appeals therefore he poses the same risks because he's merely eligible for the death sentence so whether that reimposition happens in the appeals court or in a every sentence in proceeding it is essentially the same argument i want to point out one more issue about the stay which is that the in the district court is not merely stayed because the commonwealth took an appeal of the make it or the death sentence under the local rule of the eastern district of p a which is implementing a rule of this court if either party takes an appeal on any issue the entirety of the order is stayed so in a hypothetical situation where mr porter somebody similarly situated appeal guilt phase issues alone in the state did not appeal the death sentence in other words it's the same case as williams and walker said it's in federal court as opposed to state court the issue the order vacated his death sentence is still state so adopting their argument would essentially undermine override and overrule williams  if there were an active death sentence there would just be a different analysis involved which would be what is the baseline and are the conditions faced by somebody with an activist than since atypical and significant this circuit is held the general population is the bas e even in the alternative as we briefed if they recognized which i don't believe is the case that the baseline is essentially death row if you're on death row and you floors the ceiling the ceiling is the floor then thirty the duration still must be taken into account in thirty three years under these conditions is a typical and significant by any metric i would like to touch on the th amendment argument where i believe the court committed the district court committed clear legal  when it found that obviousness of the risk alone is not sufficient for a finding of deliberate indifference i don't this is not the only arguments we have as to why there's disputes of material fact or the  circumstantial evidence and a fact finder made conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious the court goes on to state that a prison official made be able to re inference from the fact that a risk was obvious and said that they weren't in fact aware of the risk in other words this is a dispute of material fact when the court said it's not sufficient at this stage in summary judgment that was a misstatement of the law furthermore when it seemed to implied that not imply it's a defendant wetzel's defended gilmore did not have specific knowledge of mr porter's mental state that is also running afoul of farmer v brain in which acknowledge that if there were the discussion was whether or not assaults were so prevail and they knew of this risk and failed to take action in a certain facility they would be viable if they didn't know who somebody or the person who was going to be assaulted or the person that was going to do the assault they didn't have to have the sort of specified knowledge as to those facts if the risk was so generalized and the court has recognized that defendant let's zero in particular has been put on notice multiple times in multiple cases including of the williams case about what this court called the scientific consensus of the risks and harms of salo to what it is dip into in this case before stab at peter kid is this basically the same aside from the question of remain and that there were disputes of material fact the actual belief that we would want from the court is a prohibition on holding human beings in solitary confinement for thirty three years that's what the record of this case permits i think the risks are so clearly established in the suffering that is involved is so obvious that you miss what what what what what your position would be that it's somewhere along that thirty three year timeline there should have been a hearing and i take it to determine whether to continue solitary confinement so that would be the procedural due process argument i think under the th amendment what justice kennedy alluded to in the his concurrence niala decision is more along the lines of the remedy which is whether or not alternatives are required to long term solitary confinement so i know that other states that have moved away from these types of confinement including on death row sometimes maintain segregated units and i another word segregated from the prison access to programming educational materials and said oh but we have to determine if we agree with you that that the thirty three years are inappropriate that your case but prove that it's very sticky already problems understood i also do not want to run a prison but often thinking of these questions myself nonetheless i would say that a hearing in this instance would be required if we're talking about solitary confinement with no fixed end date under the department of corrections policy in front of the court today it would be required periodically the department has to determine how periodically whether that's thirty days or ninety days or annually and i think the basis for this comes from wilkinson be austin doesn't wilkinson be austin it was confinement in the supermax facility and it's indefinite duration that created the liberty interest similarly if you are held in the capital case unit at sci green or phoenix now you were there for indefinite duration and under the rd circuit's scotian in the sha as well as other cases prison officials are required to see if there is a legitimate justification for continuing the subject somebody to these restrictions if a liberty interest attaches why isn't it a significant difference that  this isn't just the department's policy right this is a statute so all of these conditions of confinement cases that you've been talking about are different i suggest because this is the pennsylvania legislature saying a couple inmates have to be on solitary time i'm glad you raised that issue and i would very much encourage the court to not simply look at the i think it's the section four thousand three hundred and three statute but do look at that at the beginning it says upon receipt of the  warrant and then you go back to four thousand three hundred and one i think it is in it says when the governor will sign the warrant and the governor signs the warrant only upon completion of the appeals to the pennsylvania supreme court and only sharara to the u s supreme court or the time here in which that appeal can be taken there warrant is then only in effect for sixty days and i would represent that this court also look at williams the walker where it said in the record there one of the plaintiffs i can't remember who was williams or walker talked about their ability to receive social visits right that is not permitted under the four thousand three hundred and three statute whence the state statute says people have to be on solitary confinement and i would also like to point out that in the motion that this court denied last week the motion to supplement the appendix the department of corrections was representing that they intend to make the capital case solitary confinement  capital case unit i think in the past and that this was in response to litigation not to legislation and i think that would be a very fair question to put to the department as to whether or not they feel that they can remove people from conditions of solitary confinement even with this statute in place let me go ahead if as if you were going to finish that one other point though leaving aside the statutory construction argument your question is that the constitution controls and as this court said in williams idiocy policy doesn't set what the liberty interest is or what the baseline would be forced to have seen the liberty interest the state policy also cannot main ones are that people who are particularly vulnerable psychologically vulnerable have psychiatric or intellectual disabilities should be prohibited from solitary confinement because their risk  pain that this brings on the behavioral dysfunction including the dramatically increased rate of self harm and suicidality is such that they cannot be kept in these conditions safely without making their health and p danger other number of cases that we have decided go at the other end of the spectrum where there's people that have been in so long that the duration wetzel in the western district to johnson be whetsel in the middle district not a finding of serious mental illness in them and doesn't require that to show injury you have to show a psychiatric diagnosis but the extent of deprivations of social interaction the fact that in this particular case mr porter is in his cell one hundred and fifty eight out of one hundred and sixty hours a week more than ninety four percent of his life to thirty three years and the other time he's out of the cell he's an exercise cage he's in euphemistically called a law library which is a cage of the computer he's in some other small enclosure for one hundred percent of the time that when that goes on for such an extraordinary duration that's sufficient to meet the objective promise of the  amendment as for the qualified immunity whether it's clearly established we think there is a robust consensus of cases that combined with the duration of mr porter stay in solitary confinement gave the defendant sufficient notice that they cannot do this that this is not reasonable conduct and i would like to direct this court's attention to your own case in cardiff the city of philadelphia and we didn't brief this one but i think it's important for the qualified immunity analysis qualified immunity protects official action if the opposite behavior was objective be reasonable in light of the constitutional rights affected if carter succeeds in establishing that the da is this defendant's acted with deliberate indifference to a constitution constitutional rights as he must in order to recover under section one thousand nine hundred and eighty three than a for sure ari their conduct was not objectively reasonable this it's because deliberate indifference is a type of intentional wrongdoing if you know of the risk of serious harm of psychological and emotional pain suffering and keeping somebody in solitary confinement for this long but you disregard that risk this is a violation of clearly established law the this kind of shocks the conscience it's different from the procedural due process claiming that we're not arguing that it violates substantive due process because mr porter wasn't given the correct process and we're not arguing in the th amendment you know objective or subjective progs where that it's totally without being a logical justification it's irrespective of any of these concerns separating somebody from a meaningful social interaction and humanity for so long is shocking the on the issue of duration we can stipulate that nobody gets criticized for exercising their rights of course but there's a reasonable argument to be made and i think the pennsylvania supreme court has made it here that in this particular case mr porter has engineered his various appeals and through representations to the state courts and the federal courts in such a way that he he wants to he wants this to go on for so long indefinitely  what are we what are we to make of that mr porter's legal strategy and whether it's been discussed with me or between him and his counsel in the criminal side just has no bearing on the conditions of confinement argument there's no where in the case law which talks about how somebody conducts their appeals right in the criminal process in the capital case process specifically has any bearing on whether we determine that there is liberty interest is it true that there's there's been no hearing it which it's been determined that solitary confinement has actually had a negative effect upon your client there's been no there's a preliminary hearing of that to that point there's not been here and there is competent evidence in the record that would create a disputed material fact about whether he the court except to prove that it did but this procedure is not the favored for a mental problem there is in the joint appendix if you look at mr porter's complaint it is a verified complaint and in that he alleges that he has suffered a reversible damage including severe anxiety depression panic paranoia bipolar mood swings and sometimes suicidal impulses this court  argue that nobody is better positioned than mr porter than to talk about what thirty three years of solitary confinement has done to him or how it has affected him so there is evidence of injury that he has put into the record here if i complain yes there is an error that the district court didn't recognize that evidence was in the record it wasn't it was not there was not  it's an allegation in a verified complaint a but they did not have a hearing on he did file a motion preliminary injunction that was adjudicated prior to our entry to the case in the court to not hold a hearing on that motion do you agree that that that there needs to be specific harm to mr porter and that we can't just presume harm from the social science the i believe that harm can be recognized irrespective of these specific harm to mr porter in two ways one is i think there is case law which is rick and there is case law which is recognize social interaction is a basic human need and i believe thirty three years in the conditions of solitary confinement that mr porter's been subjected to deprive him of social interaction additionally the substantial risk of serious harm is a constitutional injury sufficient to create a dispute fact that would should allow this case to go forward to trial but so i think we still win even without the allegations in the verified complaint that mr p correct what's in front of the court right now is when there's disputes of material fact it has to go back to the district court so there's a trial and that in an issue would be a trial a difficult finding that that that this is it proper conduct under constitutional law but at this point aside from bending it back to the district court for further proceedings i have sort of adult lost to determine what we could do under your appeal even though i recognize that thirty three years in solitary is obviously you have to have some great repercussion but i don't want to deal with something unless there's a record and a court could say based on this record people who are in solitary for so long certainly don't put in three years and are entitled to some sort of hearing even though i do not and although we do not question there should be a lesser type of confinement so that yoko bonkers while you're waiting to be executed which could be never but aside from that i'm troubled as to how to handle this without i would like to clarify any confusion i may have contributed to i think what's in front of the court right now are what we would be entitled to is a grant of summary judgment on the procedural due process claim pursuant to williams or if you find williams doesn't apply pursuant to the any alternative possible baseline on the th amendment issue i think that remain and that is what is in front of this court i was asked a question earlier about what would you like us to do know kind of what rule of law should be written what would be parole that established the liberty interest in williams in walker here we have a much longer period of time from two thousand and three to two thousand and nineteen but it's well presumably the same at one end there will be a resent just to be clear on this point even if we granted summary judgment to you on the procedural due process claim based on will use all all that does is gives mr porter regular or periodic review correct we think he will do very well a periodic review says he has literally no disciplinary record in how could be a period of use when the statute says he has to stay there it's not a matter of discretion with with periodic reviews and the statute does not state that he has to be in there for the reasons that i explained earlier that is only a requirement that he be held in solitary confinement upon receipt of a warrant which is our member that but that's just that you say that upon x upon  delivery of the execution more he stays in there until the sentences imposed or he's i forget the phrase otherwise released or something doesn't say that individual who was sentenced to death had his sentence vacated and he spent a year and a half in the capital case unit after that they cater in new jersey argued in the lower courts that well there was a statute that says we have to keep him in unit when he got the rd circuit the issue was whether the district court properly exercised pulman abstention and it didn't decide the due process issue you found that they did not there was some ambiguity in what the state statu require that case however was prior to sand into the conner that was under the prevailing due process standards for conditions of confinement or prison conditions at the time which required an expectation created and as recognized in williams state policy cannot trump that determination or cannot control that determination is the conditions themselves this court acknowledged many many times and will on the back to williams for a minute you said that the death penalty could have been reinstated d in that case how is that since the government didn't appeal but the resentencing they were sentencing correct so they didn't because a prosecutor can determine that this sentence was imposed on constitutionally we see that this is a clear issue counsel was ineffective there was evidence that was withheld right there needs to be a very sentenc proceeding in which we're still going to seek the death penalty because we think that is this appropriate aggravators and that is the appropriate sentence and that was the department's position that's not something i just came about that was their position in two thousand and seventeen  local rule in point of fact both the state and mr porter at that juncture appealed that right correct so it's not in anyone's particular daily way to control because even if mr porter with broo any appeal that he had the state would still be in effect until the commonwealth's appeal was resolved yes or vice versa correct and i would just say that every conceivable order in mr porter's case whether it's of the two that or it issued the death sentence is stayed under pennsylvania sta procedure and the district court's ruling is stayed under rules of federal court procedures so everything state i don't think this case can hinge on the meaning of the stay and there's no further questions all  due process claim this court decision williams does not control here because i think is this court understands in that case there was no appeal by the common law and had there been that would have effectuated the stay of the p c r a decision conversant in this case there was an appeal by the commonwealth of behaviors decision and that appeal effectuated the state which remains in place today and it means in place say to judge porter's point remains in place today because poor and gage a deliberate strategy of a sensually producing a procedural stalemate on that case and preventing this court from reaching a decision one way or the other as to whether or not behaviors court was correct in grant penalty so you're saying that your appeal only came about because of the procedural shenanigans of mr porter no your honor i'm saying we don't have finality that appeal remains pending before this court because of the procedural shenanigans of  we don't have it still before this court and he by filing a number of p c r a petitions that occurred in the pennsylvania supreme court he had no real intention of actually getting finality on he prevented this court from ultimately reaching decision one way or the other as to whether or not behaviors court was correct so my clients are they follow the law they will follow williams of walker one way or the other but the issue with this court with before th what what relief in your view does will use require us to render well i think based on williams we would enjoy qualified immunity because that's not clearly established prior to now that williams controls the situations in which there's a stay of the the hay vs decision so i think we would enjoy unity under that scenario well and the choice i understand it if prior to this occurrence such they would only apply to prospect of so exist so this day in your view makes it sufficiently distinct that we can apply williams yes you are b s i think qualified immunity well know it it protects officials who make reasonable but mistake in judgment and i think the so let me ask you this question if let's assume for the moment yes that i disagree with you on the effect yes then what would williams require with regard to relief to mr porter well i think according to millions it would require some sort of periodic review of his conditions of confinement because if this if you were to rule that williams and walker governs this case he no longer has a legally operative sentence of death and therefore would be you know he would be entitled to have his conditions of confinement examined on a periodic basis well in both williams and in this case even if we granted him the ability to have a periodic review i think it's apparent that down the procedural road the death penalty right the death penalty could be reinstated that is a possibility in the scenario again that remains a possibility right so if it's if it's if it's a possibility in both williams and here and then this this this state which is a peculiarity  of a local rule in the eastern district is the difference in the application of that that's your i respectfully disagree actually i think pursuant to the state court rules of appellate procedure had the commonwealth filed an appeal of the p c i e decisions in williams and walker that also would have a factually did stays of those decisions but instead the commonwealth essentially agreeing so th elected not to challenge that decision essentially agreeing with the p c r a court that williams and walker were entitled to new penalties and at that moment their senses of death according to this court's decision became legally in operative confinement after a certain period of time you agree with that i don't agree with that i mean we disagree that williams and walker applies here i was acknowledging though if it does apply that there would be some sort of periodic review so it show your position is thirty three years later after he received this potential it has not been realized and that people held in solitary at that period of time are obviously going to have battle problems beyond what would be ordinarily expected of someone held in jail and there should be some relief number one concerning people such as himself as well as others held for s for a lesser period of time and secondly that insofar as his positions which are that there has been obviously a violation of his constitutional rights which he's  on it being obvious harm there was some concrete injury to those inmates so in farmer there was actual injury to be imminent and in a lack of that there was a suicide where the inmate had a documented history of previous suicide attempts and extensive mental health issues i read those cases as yes if you have a concrete danger but i think we can take it as a given that someone who degenerate because they're subject to psychological reaction to could find could try mint it's his budget injuries being hit over the head maybe even worse so that if that's the a logical extension of it would be someone in solitary confinement who could show that after a certain period of time it has effects which are unconstitutional for people be handled some evidence that the inmate in question actually suffered those adverse consequences and now he's trying to rely upon these allegations in his complaint and say that that should really be used as an affidavit but he didn't present that argument to the trial court there were joint facts here that were presented to the trial court summary judgment and so but if you're if you're at the trial court and you have a verify complaint it's not  that he had not shown any actual mental d compensation credit in the in the verify complaint which you're supposed to take it centrally as an affidavit for purposes of determining whether the joint statement the both parties will wind up on supplanted whatever assertions he was making in the complaint and if he wanted to argue to the trial court that treat my complaint is an affidavit and treat my assertions with respect to bipolar disorder joint statement of material facts in terms of what the parties are identifying is the material facts and the material parts of the record for the issues that summary judgment and isn't necessarily required to go beyond that if the  effects from solitary good vibes i correct i don't we remained as necessary your honor we went through discovery and there was an opportunity to develop the record and presumably if there was any evidence to support the allegations in the complaint to his mental g compensation d they would have been able to put that in the record and so i think the basis for the trial court's decision was that there was no evidence to actually back up that finding it was basically just a bald assertion inches the there is  with the after the evidence is before the court and there is no contrary evidence from the government was it that has no effect from this five it was or i mean there was simply no evidence of record to support it and he was exhibit so that at the very least it appears to me that he should title to remain to determine whether or not he has any effect of thirty three years of solitary i think a remained on that question would be a waste of time or are we have discovery and discovery did not reveal that he actually had any of those conditions that he like what part of the record is the verify complaint so it is of the record and it was  not disputed by you in any type of evidence but it was not but mr porter did not point to that as a material fact he was relying upon its summary judgment he was just relying upon the sort of general findings about solitary that i think the disconnect if i may yes of been is the judge's point is if you send it back the magistrate judge would be obligated to take the verified complaint into account and in fact one could argue that the magistrate judge should have taken the verified complaint into account the st but put the aside for a moment you would agree with the proposition that if the verified complaint were before the magistrate judge or district court as it were that that could that's a facial challenge on the conditions of death row right generally so puritans on its face distinguishable yeah that's correct i'm ok so let's go back to this this point on the consideration in which mr porter says he suffers from the melodies and i won't repeat them right there is there is no competing document from the state to say that there's a dispute as and you don't think the message that just as a matter of law you don't think the magistrate judge was i don't say she was appointed to that but she was not obligated to look at the verified i think she was obligated to look at it but i don't consider it ok and if if if it wasn't considered and it and let it let us say it set back for trial for retrial or reconsideration and the and it is obviously it should be considered because it's a verify complaint get with any other evidence that the that mr potter or the government want to put in the court would have to make a determination whether thirty three years in solitary was not an ordinary it shouldn't of prison life and that he was suffers consequences from this if the court were to conclude that violation of his constitutional rights correct if the trial court made that determination i think qualified immunity would would still find here based upon peter can griffin so i think even at the time or did make that determination  no to the prison authorities by reason of prior case law correct which dealt with it but didn't deal with it obviously in the in the fine print the way we're dealing with here correct your honor prior to out of the th circuit's decision in porter which came out i believe it was may of this year while we were in the briefing phase for this and no court had squarely held that long term solitary confinement on death row violates the man so i think in  prong and then say that it satisfies us so that we don't have to deal with the st book if you disagree that there's been any violation of any constitutional right correct on all right so does that of necessity in order for us to adjudicate this require that it be sent back to the district court to determine whether or not there was a violation of the st product not necessarily because i think this court would have discretion to basically jump over the st pro garbus of whether or not it's a violation it's not clearly established as such by prior case law well do you concede that the defendants were aware of the potential harms associated with so terri confinement or at least the jury could conclude that the defendant was somewhere i think that you know there was some testimony from secretary wetzel saying that there could be harms associate with saunters confinement but i don't think there's any evidence that they were aware that this particular inmate suffer any of those adverse consequences of debt but but it seems to be very strange that prison authorities who have dealt with condos thousands of people in solitary confinement were not aware that solitary confinement is not like a ordinary prison life experience or for the general population i mean i don't know what the actual facts are but i daresay it certainly is solitary so i mean that certainly could be ascribed to him as having knowledge so as far as the question you know is there knowledge by monday and then you know that that's certainly there and inmate started the company said or or emotionally or mentally shut down in solitary confinement that was said in that case related to this case and certainly unreasonable to agree that yes but i think we still have the subjective element of deliberate indifference and i don't think there's any proof as part of this record that my clients were deliberately indifferent to that in fact the evidence of record is that they responded reasonably to the risk by providing supplemental mental health benefits and so i think that even if we could grant you be on the risk aspect of it i don't think there's any evidence of deliberate indifference evidence itself they can they they they gave they gave treatment to date steward solitary to cure the problems that were created by he and solitary and at the very least let me put this way just as whether or considered and if there be finding by the district court that there is a violation of constitutional right then that there has to be a hearing as to whether or not the prison authority and question was deliberately indifferent or whether he should have known and his is conduct was beyond negligent his conduct was such that he should  work here trying to do it correctly b s why should we remain this back to the district court for them to do a job that we can't do here because we can't determine whether or not there's a violation of the st amendment unless there's been a lot of fighting but that's the fact because to satisfy the subjective element of beneath amendment beilenson there must be proof that my clients knew of and disregarded the risk to health and safety and i think there's no evidence complainant but i think my clients responded reasonably to the risks associated with solitary confinement based in knots in the record here by providing additional mental health services and there's no evidence that mr porter  found it necessary to avail themselves so that but i totally get the point you just made but doesn't that create the perfect storm if you will of just counterpoint and that  of solitary confinement you are toward is that in the record other information about things that were offered but not taken advantage of isn't th disregard of the risk and i think because there is no evidence of a disregard for the risk and the evidence actually be opposite the evidence is that we took this risk into account and were sensitive to the fact that it had the understood the wrist and then you acted or your place acted upon the knowledge of that risk and like i said what is the evidence in the record as to the reaction to the understanding or acknowledgement or appreciation of the risk where in the record does a what do just what do they do they provided additional mental health services to the extent anybody is experiencing the adverse effects of solitary confinement of those supplemental services or that was necessary  i have one other question but how can they be taken out if the statute says they have to stay in the senate if an inmate shows signs of decomposition they can be taken out of the capital case you know but i thought the whole the reason they were in there all this time was because section four hundred and sixty one p s four thousand three hundred and three says they have to be they have to stay in the statute does say not your honor and i don't think it's that they're taking out the capital case you know altogether but they are you know the fact that isolation might be having an effect on that particular individual there's an opportunity to address it in that scenario that ever happened the other way or not that i'm aware of what is the commonwealth's piniella logical interest in keeping someone in solitary i mean i understand the nothing to lose theory  you don't have to repeat that i certainly understand that but here's the point that i'd like to get to try to appreciate the difference in if there is any of that in the safety concerns associated with the plaintiffs and williams and and here in williams we held that the plaintiffs had a procedural due process interest in avoiding indefinite solitary confinement and require the commonwealth to institut meaningful review are there any safety concerns that that in your judgment require a different result here and in williams no there's no safety concerns specific to m you couple points in rebuttal and address any questions you have st when it comes to the what was in the district court decision that there was no evidence of deliberate indifference because mental health services are available that misses the point this is not a mental health care claim i know we bring mental health or medical care claims against custodial officials we are met with case law would says if they are interested to the care of a medical professional then there will be no liabilities so  that would also be ironic if we also had to prove mental health care claim against non medical providers but just as you cannot keep somebody in a cell that had a fuse that would up shoot sparks and cause fires so long as you provided burn care and you should provide burn care if you keep somebody in a cell where it catches on fire you would have to actually stop the fires from being started to remedy the conditions issue you cannot keep somebody in solitary confinement until you've pushed them over the line to some threshold of mental illness so long as you provide care for them as to your point you just made here is why this case although it purports to be and has sort of has applied case for mr porter it really seems like a facial challenge to all of the death row inmates in pennsylvania i would say that it's not just because the facts of this case are the facts of this case he's been there thirty three years so we're not asking you to concept but under your theory of harm since there's really no individual has harm and it's based on sort of general knowledge about what happens to inmates in long term solitary confinement wouldn't all of the same arguments applied to any an inma who's been in there for ten years five years twenty years and what's with the this certainly could applied and i'm counsel in read be what's with a class action that is challenging solitary confinement for all on death row but that doesn't mean they're going to be unit i can tell you in personal knowledge that there are people who are considered decodes there's stability rating deed which means they are the least stable in the department of corrections psychological stability system they get the most intensive types of mental health care and there have been occasions where they have been removed from the capital case unit since the two thousand and fifteen settlement in the disability rights network lawsuits into something called the diversionary treatment unit in sci green where they will get twenty hours out of cell per week so there is that information and as to the penal logical necessity issue i will just also mention that they did d file a motion claiming that the records should be supplemented with evidence that they intend to end death row solitary confinement so i think you know the court can fairly question which is it the statute that forces them to do this or don't worry about it because we're going to end solitary confinement without a statutory change