counsel and i am the students that's it's quite helpful to the court so we appreciate it very much thank thank you your honor and may it please the court my name is alex program and i represent the appellant mr david hill and at this time i would like to reserve two minutes for rebuttal this court should river reverse the grant of summary judgment below for two reasons first under the supreme court's decision invite take versus jones mr hill was entitled to a hearing before his transfer to a mental health facility for involuntary treatment and second at a minimum he would should have been provide such a hearing shortly after his transfer cancel the there been at least a couple of decisions after vi to make that have held or at least suggested that a temporary transfer does not call into play all of the protections of my take opinion so if you have then why aren't the defendants entitle to qualified immunity that is that it wasn't clearly established that a temporary transfer required those procedures your honor the vi tech opinion itself does not speak to temporary transfers and indeed that's exactly my point it didn't talk about temporary transfer so how could it have been clearly established you wanted the qualified immunity defense for the individual officers would be relevant to the damages claims against them however i would like to emphasize that they would not affect mr hill's claim for injunctive relief for future transfers to the mental health unit however the vi tech opinion deals with the liberty interest in avoiding a the lack of a pre transfer hearing before the transfer ever occurs in the first place and does not turn on the length of the transfer at the outset also in this case your honor the true mr hill's transfer to the mental health unit was not designated as temporary before the mental health unit he was provided an individual lies treatment plan and indeed by statute the idea of seize mental health unit is for persons requiring diagnose diagnostic services and treatment in a maximum security setting and the i o c is guidelines for the mental health unit state that its purpose is to initiate appropriate treatment and therefore mr hill's transfer was for the purposes of treatment and indeed he was being evaluated prior to his transfer during his times on suicide during his time on suicide watch and therefore the only purpose for the transfer could have been to initiate treatment while he was there they taper him off of his preexisting prescriptions for paxil and elevate in order to assess the effects of altering his medication and this was in light of that was being treated during his time there not merely evaluated and therefore the protection device tech do come into play because he was transferred to a mental health facility for treat for psychiatric treatment over his objection your honor and the vi tech also recognized a second liberty interest that inmates have under the due process clause when the statutes of a particular state create an expectation that the inmate will only be transferred to a mental health facility under certain conditions and the idaho code is similar to the nebraska statute at issue invite attack in all relevant respects invite the prisoner a an expectation arising from nebraska statutes that he would only be transferred when he was designated as mentally ill and the department of corrections determined that he could not receive adequate treatment at his current facility  in such situations because there was an expectation that these criteria would be met before his transfer the due process clause required the state to follow adequate procedures including a hearing to determine these prerequisite facts and in idaho's of idaho code sixty six thirteen zero one and idaho code sixty six thirteen zero four creates similar requirements before an inmate can be transferred to idaho's mental health unit help that a transfer to a mental health facility for involuntary treatment is such an atypical hardship over and above the ordinary incidents of prison life and this is this is for two reasons first because of the stigma associated with the label of mentally ill which is over and above any stigma that attaches from being in the prison population in the first place and also from the being subjected to involuntary psychiatric treatment for mental illness and both of those things occurred here in mr hill's case would you sign off or sign some sort of a waiver agreeing to be treated by contract providers mr hill signed a consent for treatment for him after his transfer to the mental health unit however the treatment for him which can be found on page one hundred twenty one of the excerpt of records states that the can revoke his consent by objecting to any particular treatment and the state concedes that he did not agree with his personalized treatment plan which he received on april fourteenth shortly after his transfer or is it important that invite tack the person was transferred to a mental hospital and in this instance your client remained in the department of corrections just simply a sort of medical unit within the prison system no your honor that distinction is not relevant to the court's analysis here because the liberty interest at stake arises from the fact that the state is transferring the inmate to a mental health facility and subjecting him to and going to sort of i guess a version of judge memes question which is you know if a person is transferred within the prison from one area to another area let's say it's suspected they have tuberculosis and they're isolated in a medical unit there still within the prison system it's not like sending them off somewhere so i guess i'm not sure why it shouldn't matter your honor because the it is because the the liberty interest at stake is the same because of the two factors that were important invite tek the stigma of being labeled mentally ill and placed within a mental institution which whether within the department of corrections or without that stigma remains and the prisoner was also subjected to involuntary treatment during his time there indeed the hope code sixty six thirteen zero one states that the mental health unit must be identifiable ie separate and apart from the ordinary prison population and therefore mr hill was being labeled as distinct and separate from an ordinary inmate and furthermore your honor there are cases in other federal circuits that have recognized that via text is applicable to intra prison transfer as if this may be called such including versus woodard in the fourth circuit and this is because the liberty interest at stake are the same in this case and if i may your honor i would like you matter the rest of my time instead this matter is akin to the eighth circuit case u s p jones as in us the jones this quarter is based merely with an involuntary transfer from one prison to another to facilitate a psychiatric or psychological evaluation and to obtain a mental health diagnosis as the eighth circuit court held liberty interests are not implicated by such a transfer and the due process clause is not does not prohibit such a explained was that before hearing is required there must be a diagnosis and a determination by the idea you see that a commitment may be the next step and it's when there is a potential for a commitment here there wasn't a commitment it was always intended to be a temporary transfer to evaluate and diagnose mr hill he had been with of course there was not yet a diagnosis there were prior diagnoses but he had started spiraling out of control he had during a short period of time where he was admitted into suicide watch on three to four different acts and he just kept spiraling so that i do you see did what needed to be done to protect this inmate from himself otherwise his analysis in him that utilized his own professional judgment there's been no showing of bad faith to say that their situation was an emergency including that there was no showing or argument that his decisions were is this a substantial departure from wasn't played adequately nor was it argued argued adequately below in addition to that it does not survive mr hill has not been diagnosed with the mental illness in fact when he was discharged from the acute mental health unit they specifically said he does not suffer from a mental illness so at this point there is no evidence to show that he's at risk of being committed into any sort of mental health facility or a mental hospital and here also so you're saying an entirely speculative claim and earn you know yes your honor that is one of the arguments one of the two arguments first of all that is that's the first the second one is the fact that his there is no chance that his due process rights will be violated because under us the jones temporary transfer can occur if an evaluation is necessary in the future but it has to be a temporary transfer and it has to be for the purposes of evaluation and diagnoses and that is what happened here there's no because of his lack of mental illness there's no chance that he's going to be committed or no evidence supporting such a finding and as this court mentioned in addition to the fact that there was no due process clause violation that the police are also entitled to qualified immunity because the case law was not clearly established it was not clearly established that's only in the moment very clear that yes your honor that deals with damages  but also with regard to the injunction and injunctive relief claims that is our position that those are speculative and also we're not even properly raised below so going back to the temporary nature oh i  do want to point out first of all counsel has mentioned i do see guidelines those are not the law they weren't properly admitted into evidence below their i cited case law in idaho which shows that they cannot be utilized to support any sort to sixty six thirteen zero one sequence also they were not properly raised below and in addition to that they do not create a liberty interest like what occurred invite tack in fact there are more akin to the statutes that were addressed in us v jones where because it's a temporary transfer there is no due process right so going back to the temporary nature and evaluation if you look at what was done council has mentioned his position and or at least it seems that they are arguing that an evaluation cannot involve any actual work by a medical professional or mental health professional their parents are just supposed to sit and look at the in maine and see what's going on that's not the case that's not the proper of standard of care for a mental health professional they do have to do some work and that is why the medications were tapered off so they could get a baseline diagnostic of mr hill that's why their treatment or evaluation type work was done to determine where what was plaguing mr hill what was causing this spiraling of his behavior what was causing his behavior outbursts gun violence for you know do state that there will be more than an evaluation treatment that seems to be you know it's part of attempting to diagnose what his what his issues are whether he's an access one individual with a mental illness or an access to individual with a personality disorder there has to be work done to be able to adequately diagnose someone otherwise you can't even have a hearing to determine if an individual should be committed to a mental hospital you have to have the work beforehand and to say that him being reviewed by clinicians is sufficient isn't true they don't have that type of qualifications that is available by that mental health team the best mental health team available is where mr hill was transferred to be evaluated by those individuals in the mh you really that i do you see should be commended for what it has done because it prevented a temporal potential how distraught think event by an individual that was spiraling out of control that seems  that's where us he jones is very important what they have said that although a transfer fairly evaluation may provide some inconvenience to a prisoner that temporary interruption does not give rise to a level of a due process violation it is not what is did why is expected for a due process violation it's not what is expected when there is a liberty and trysts implicated so i think it's going back to that the fact that this is just a temporary transfer to fully evaluate an individual and determine what his diagnoses are so an appropriate course of treatment can be provided and they amount of time i do want to point this out and u s b jones the prisoners one was the temporary timeframe was three months another one was two months and here we have a timeframe of forty three days twelve of which were actually and jones also explained that there is little or no danger of mandatory behavior modifications in a transfer for evaluation and the stigma attached to such a transfer could be no greater than if the evaluation were done at the prisoner original place of confinement and that's what we have here while mr hill has claimed that he was had these harsh behavioral modifications that's not what the burden actually is he has to show that the behavior modifications were different than what he had the rice would have had in a normal prison setting and he hasn't made that showing here in fact he had a behavioral contract prior to going to the mh you when he was just charged out of the  honor is first with regard to the jones case relied upon by the idea even if this court were to adopt the rule of that case which this court has not yet the holding is simply an applicable here because the holding of jones was that a value a temporary evaluative transfer does not implicate fi tek because there is no risk of the stigma of mental illness and the mandatory behavioral modification and treatment that right issue and by tech however even if those things were not present within jones they are present here mr hill was deemed mentally ill in the process of his transfer to the mental health unit as the diagnoses in his mental health referral show and he was also subjected to treatment while he was there a personalized treatment plan and alterations to his medication and therefore the liberty interest at stake in by tech was implicated here furthermore your honor the forty days that mr hall was in the mental health unit surely are do you disagree with counsel that he only spent twelve days physically in the mental health unit yes your honor we i do contest that the lower court found in its order at page twenty two of the excerpt of record that mr hill was in the mental health unit from april eleventh to may twenty seventh two thousand and eleven and indeed the state's own witness dr richard craig made the same statement in his affidavit at page sixty nine of the record stating that mr hill was in the mental health unit from april twel to may twenty seventh and even if mr hill were moved between different sections or facilities within the mental health unit he was still in a facility for mental health treatment that was separate and apart from the ordinary prison population thank you think your time has expired the case just argued is submitted and we very much appreciate the helpful arguments from both sides