cellmate stabbed him in the neck four times david jesus warned three separate prison officials that hill correctional that an attack was imminent mr jeev escape specific details of that attack he identified who  assailant was his cellmate william adkins he identified the method of attack a stabbing and he provided prison officials with specific threatening comments that corroborated his fear for his life  with mr right as he was inspecting the prison kitchen and what i would like you to tell us is why that very quick interaction would be enough to expose mr wright i can see that that is the weakest of the three as to the three defendants it's actually was the assistant warden of operations at the time mr genius was a cook i believe in the kitchen so he was familiar with ward and right and he did provide the same level of detail that he provided on multiple occasions admittedly to the other prison officials one of whom was a counselor one of whom was in internal affairs so in terms of the details that he provided i think he gave enough for the warden right to at least act or to at least delegate  the responsibility to someone who was underneath him but the details were identical judge roll heard that he provided in both the letters and in the other oral statements to both counselor steele and officer mclaughlin but in in candor it was not as lengthy of a conversation didn't have the same type of involvement he did as he did the other two defendants and so i would agree that it is of the three prison officials that would be the weakest be and it all depends on the context and mr genius had a prior history of with officer mclaughlin so he had talked to him and internal affairs office for instance he had visited them at the cell where they were housed together with with the warden right it was in a in the kitchen and it was around other around other inmates so i think the context of that conversation yes did it happen quickly was it informal yes because it needed to be i don't think it's the type of environment where you're going to be able to have a full conversation so that there could be a lengthy back and forth but i would agree with your honor that depending on what the relationship is between the inmate in the specific prison officials that's going to  that's going to flesh out how those communications happen so again with respect to warden right that's all we really have that's all the evidence produced a trial revealed as to the communications with him but we do believe that it is sufficient to establish a question of fact for that a reasonable jury could conclude that the scale was deliberate indifference on the part of the warden right so we would ask that the court reverse and vacate the judgment that was hundred three eighth amendment claims that judgment was entered following an oral rule fifty motion for judgment as a matter of law at the conclusion of the plaintiff's case in chief and the reason is that a reasonable jury could have found that the defendants were deliberately indifferent to a substantial risk of serious injury and would like to talk about the element of subjective knowledge this case requires a relatively straightforward application of farmer versus brenna which the court is very familiar with the standard is is both an object of any subjective test that we need to show to allow the jury to conclude in our favor and in terms of subjective knowledge it's somewhat tricky to prove what's in the defendant's mind because those are facts that are uniquely confined to their memories by the case law allows us to prove subjective knowledge through circumstantial evidence in an eighth amendment case what the courts have instructed is the way to prove subjective knowledge is that a an inmate must communicate a specific safety threat to a prison official which then allows that prison official room to respond reasonably that's what farmer versus brennan says that's what the circuit authority here says that's how you prove subjective knowledge that's the paradigm now there are other ways to do it i will concede you have a case like farmer for instance which dealt with a different kind of set of facts where the victim possessed characteristics that inevitably would lead to an attack we don't necessarily have that here so it's a different kind of circumstantial evidence that we are relying upon but circumstantial evidence is often more persuasive and more powerful than direct evidence we don't need an admission by the defendants that they knew something we can prove it through indirect ways like we did here and that the key takeaway though from these cases is that there is no rigid proof matrix that we have to follow to prove subjective knowledge and i'd like to take it a different approach from my brief as that as to the subjective knowledge portion of the farmer test and i'd like to to focus on where failure to protect cases fail when do they go bad for prisoners and i want to give you six quick examples of when failure to protect cases don't get to a jury number one the inmate won't identify the attacker number t the inmate only expresses a general fear does not relate a specific threat number three the inmate won't give details of what the threat is when pressed by a prison official for details number for the inmate has a history of lying to get a new cell assignment or even a transfer to another person number five the inmate has a history art she's new the inmate has made inconsistent statements about the threat and number six the threat is did exactly what the case law instructs he must do to prove subjective knowledge or at least introduce enough facts that a reasonable jury could conclude that those prison officials had subjective knowledge of an actual safe threat the defendants i feel if you read their briefs raise an unjustifiably high barrier for how to prove subjective knowledge essentially what they say is this communicating the specific threat is not enough you need to enter deuce collateral evidence unrelated to those statements you need to come up with a plus factor some some collateral evidence that is disconnected from the statement that the prisoner gives to the prison official and i feel that that introduces a bright line rule that inconsistent with farmer versus brennan farmer takes a very specific fact based approach and trust that the juries are going to be able to decide how to interpret the evidence and how to assess the credibility of witnesses i would draw an analogy if i could to employment discrimination cases and if i could just pivot off the eighth amendment for a second consider a very common title seven employment discrimination case where employee introduces an affidavit that  says my supervisor made discriminatory comments that was tied to employment terminations or some adverse employment action the supervisor introduces a counter affidavit that says the exact opposite that's all there is that bears upon this question well what we don't do is we don't say the district court judge can assess which of the two affidavits is most more credible what we say is let the jury sort out after hearing who is the more credible witness this case really is no different from what i just described there is a fact question during the discovery part of this case the district court invited the three remaining defendants submit a motion for summary judgment on the failure to protect a claim and they didn't do it so the solution is not to drive a wedge in farmer versus brenda what's the solution trust the jury instruct the jury on the law properly and trust that they can sort through witness credibility that they can sort through the evidence and reach the right conclusion i'd like to talk for a minute about responses how does a prison official responded to a safety threat that he or she learns of from a from an inmate farmer versus brennan is decently plain what it says is that the inmate has got to put th official on notice of a safety threat and at that point the official needs to respond he doesn't need to respond perfectly he needs to respond reasonably minimal gestures or token gestures are not enough but it needs to be a reasonable response the response doesn't need to be intricate it doesn't need to be complicated it can be as simple as interviewing the prisoners separately maybe even interviewing them together talking to other inmates who are in adjacent cells to see whether there's a problem that's been festering it could be sending a prisoner or inmate to a psych ward for evaluation if there's a mental health issue that's present it could even be sending one of the prisoners or even both of the prisoners to administrative detention for a short period of time to sort through the investigation and it could of course be a transfer to a different cell the bottom line is there's options that are available to a prison official to formulate a reasonable response that doesn't pose is a possibility in this situation and how it might have differed from punitive detention to segregation i don't think is a is a practical matter it's all that different except it's not and it's not a disciplinary status so if for instance judge hamilton if adams was sent to administrative detention it might be in a segregated housing unit but that's not going to trigger any procedures before the adjustment committee to determine what punishment might be those lose good to me you know and it's really what about what about time out of so i believe what i believe that it could impact their their time out of self such as visitation rights how much time they get in the yard i don't know if it was specifically if the elena administrative code identifies how much that would be i think it can be no more restrictive than what disciplinary segregation would be and i think that's all it says if the court would like i can i can supply a more detailed answer in a you know in a letter to be filed with the court but i can't i don't believe it's any more restrictive than that i don't think it's necessary ok in terms of the response here let's be clear that there was not what the defendants have said and what they have cited to you is a is a comment that took place in officer mclaughlin's office two months before the adkins attack before mr judas and mr adkins were even sell together and at that point in time it's important member what happened mr jesus had complained about being seldom with someone who he felt was and again there was no safety threat there was no specific threat to his life or to his safety at that time so what he did is he told officer mclaughlin he didn't like a cell assigned but at that point in time officer mclaughlin was under no duty to respond under farmer because he didn't have enough to go on so he told g this and i whether it's whether it's right or wrong what he told him was you can refuse housing and go to segregation now they're trying to use that comment in march to apply to them a incident in which there was a specific safety threat and we don't feel that that's an appropriate response it's simply punishment to avoid an attack and in fact it inverts farmer because farmer talks about an affirmative duty to protect and not an option to ignore and if you think about it that would lead that would lead to chaos within the prison system there's no incentive at that point if that's a reasonable response there's no incentive to investigate threats to inmate safety and you literally would have a situation where the inmates are running the prison effectively as penal logical darwinism is what that what that amounts to and we do not feel there's any authority that that would allow the prison officials to respond in that fashion i see them in my rebuttal time if there are any further questions address the courts really the second and third rounds together the response but the fact that the point that the defendants did not deliberate did not recklessly disregard any substantial risk to two points of gee this before you do that i'm going and ask you this because it has really a been on my mind a lot what case has ever suggested that a prisoner must violate a prison  expose himself to discipline in order to avoid a threat to his safety what that does is it transfers  well it's a rationale that would transfer the burden from prison officials to the prisoner himself we are there is no case directly and points actually as we make clear in our qualified immunity argument however in the ricardo case i mean there are certain principles that this court recognized that they can mimic does not provide a veto power to prisoners over their cell assignment and that the prisons do have to deal with the problem that the prisoners will sometimes either lying or is that they the the system of law allows a veto power to the plant to move prisoners over that in order to escape from a cell mate it gives them the ultimate veto power but they do have to then be subject to potential believe that they did or they were they don't believe that they were justified in the reasons that they carry so why is that comparable to the situation judge rover's asked about where the the prisoner in order to in order to show the subject of what you show deliberate indifference by the claims they're the ones they do still have to come forward and identify  just now when you were speaking i was thinking of mr stern in the previous case who said you know that you know have to violate violate the law perspective flee and and that's what you're asking mr peters to do here it seems we're quoting prisoners to risk a violation and discipline but the discipline even under his testimony that he faces would not do nothing was either a gamble or they were goofy as the facts we have to take it at this procedural point they say they had decided they had decided not to do they decided not to do anything in t conversation with lawful in a different context very well is not was a similar context it was less than two months or seven weeks as your theory though that that he should have remembered that conversation and assume that the maclaughlin would take the same approach yes asked that question not that specific question but he was asked that if he had done it that he had been informed of it that mclaughlin had informed him of the option that if you had elected you the option you would have been immediately transferred to depose to disciplin first is not to he's not to not a punishment of a constitutional magnitude he what he would prefer to go to is another cell assignment the other the other option is for him to be ending up in segregation the court has always recognized you can send people to segregation is a mode of protection related loss and program there is a legal guarantee that he wouldn't be subjected to more severe sanctions for whatever he might have done to get segregation but that's i mean if you're asking a lot of prisoner under serious and potential deadly threat to make extraordinarily fine judgments to save himself from what prison officials are supposed to take care of  no your honor first with the question of subjective awareness we i mean we separately do our own dick would you defend the district court's decision that the specific the specific information that he provided the evidence was not sufficient in order to find that the cannes and four days after he speaks to the third prison official he's sad so gosh i don't know what else a prisoner could steal the counsel or did you did you tell him about the threat he said yes i explained to him about the threat of being stabbed not too big to believe the same thing with the with right to what he said when his counsel asked him at page thirty three and when did you tell me about the threats he said yes i told him i told him he told me that i'm not to big to bleed even if you look at the letters the letters that he alleges that he sent to the two defendants defendant mclaughlin and to defendant steele he says i respectfully requesting your immediate help from getting with getting moved from my cell because of threats that i'm not too big to plead for myself the atkins so so slowly that we try to repeat the question what else do you think he can't do to be have to have the defendants as you have to say the defendants so fear you and i understand we're what else does he have to say well you know he has to kick if if at considered not at that point conveyed enough of a threat that the defendants were required to this is not really your position is that's not enough of a threat that not enough of a threat it was not is because the question is not whether a reasonable person might interpret that as a threat of a substantial risk that he would attack and that's not even as the case is ricardo said not whether he should have concluded that that statement means that he intends to your last cellmate who is also a gang member just like i am now here on oh well no i said that when you actually had it was a specific threat that they were going to be to have for killing the gang brothers and there was the other information as a matter of law where we have to give the plaintiff the benefit of all the evidence and inferences from a unified or stannis record correctly right was informed of the same specific and serious threats it was in a quicker hurried context in this this encounter you know in the kitchen but i think all that in from of the same information was conveyed in and writes response on this record was also to do nothing i'm troubled about how we could affirm that ruling under the eighth amendment but maybe i misunderstood the evidence about mr wright well yeah he didn't actually testify be did it all he testified other than the one of the one specific answer to his counsel's question said yes i told him i told him that he told me that i'm not too big to believe other that he just all he testified was i told him what was going on he didn't relate the specific information and they say i asked him for his help to move me out of that cell being that it wasn't getting done usin skeel right now looking at thirty three of the transcript he told me that i'm not too big to believe quickly explained i'm trying everything i can to get out of the cell i don't want to get stabbed i'm in fear for my life did you e didn't he hasn't testified explaining any of that specific information to defendant write this in the kitchen surrounded by all the other inmates watching the conversation criminal recklessness standard here so it's not whether you think it would have been a better practice for right to have done something more so the question is did it if from the information that was provided with them was he would subjectively aware of that risk and required to respond conclusion of the question if you look on pages and it's fifty six to fifty eight or fifty six to fifty nine of the trial transcript i think that's where judgment day follows up on the questioning of counsel i think it's important to focus in on that portion of the transcript the other the final point i'll make on the comments that adkins said to geve us that supported the threat this i'm not too big to believe this is a big guy ok he's not physically intimidating he's just very overweight and so the fact that it's  belleek comment as opposed to something more direct distance in the nature of i'm going to stab you on tuesday at five pm i don't think it's determinative i think we need to look at the comment the fact is that it's a strange comment it's not something somebody would necessarily make up so when you're repeating a comment like that i think that the person who receives the comment ought to interpret it in context and say well there might be something there because the comment is so unusual looking at this is physical stature it might make sense that it's  turner as well always an attorney general's office thank you very much for doing the job you do for your client we really do appreciate