e a determination that mr taylor should not be double self and also as i read the record i under d approved mr smith for being you know don't sell so can i want a different thank you i appreciate the clarification and i wanted to kind of get in real quickly to understand who's being sued here and who as i read the complaint i read the briefs the lawsuit was filed against holland vazquez and brown cracked it there was no lawsuit against campbell no lawsuit against kirby and no lawsuit against  is there anything that would have prevented you from filing suit against campbell currie or knowles no your honor it was it was my judgment that the action against  the the checks for the checking on the welfare of prisoners that were caught was four times within twenty four hours and then random jacks every thirty minutes now having those thirty minute jacks didn't come into effect until after this event had to have taken place so that is also a problem and i'm  and brown are the four guards in a sense who are responsible for monitoring what's going on in the cells cracked right and then you have holland as the warden whose job is overseen general operations and so forth but again campbell caribbean noles who were more involved in the actual decision to place these two men together are not being sued in not additions case correct right and and that is from time to time but the as of the date of this incident she did not know that the policies of the department and action is there any evidence that counts and welfare checks were not being conducted yes what senator has testified that thirty minute jacks which another witness had testified were being the the welfare of these two men weren't noticed until the evening meal i had know but we don't looking at page one fourteen of the record which is the holland declaration and under her graph six she mentions that the  institutions are required to conduct at least four counts of inmates during these twenty four hour period now what is your contention that the cuz it's usually requires more frequent welfare checks or that the four were not followed but what what's the center of your theory we have two men which were placed in a segregated housing unit because right they were number one they were they were mentally ill they had personality disorders number two they were both to be placed together that seems to me to be in different that procedure you know it's face when we're dealing with these kinds of people if we were dealing with  about at least four counts every twenty four hours if we look at paragraph seven of her declaration your honor it says it is my understanding that as of july fifteenth two thousand and twelve in facility a day would take place every half hour ok i see that right well and i think you and deputy pastas testified they were not but the cast let me get to the kind of the big question in this case for me is that let's assume it was a prison policy to check every thirty minutes the officers i believe have raised qualified immunity in this case and so where is the clear authority from the supreme court or the ninth circuit that or maybe some federal law that says that would put these opposition on notice that the failure to do welfare checks every thirty minutes is a violation of some federal right constitutional otherwise well it is my understanding and i believe the case is farmer versus brennan that the that the guards have a constitutional obligation to maintain safety certainly certainly but i think the supreme court has reminded this court among others that you can't look at it in a very general sense you have to have something more specific than that so it can't just be the general right the general right to be you know not be harmed by cruel unusual punishment for example most recently specific is there a specific case or statute you can point us to you know your i would point to the california co regulations which have been cited by both sides in this case in which prison personnel are instructed to maintain the safety of prisoners and what procedures are to be followed now arc our case law looks i should say i don't say frowns upon but it's not a huge fan of citing state regulations as a basis to trigger nine hundred eighty three liability is there anything else any other cases or statutes you can point to other than the california code with regard to this kind of situation yes no you're ok do you want to save your time for a bottle yes i will but also on predictable because there was no information available to the defendants in this case that the that mr smith faced a substantial risk of harm and so that the defendants were not deliberately indifferent in this particular case and in this particular case the as the as the court has pointed out already that the defendants were not personally involved in making the decisions to house the these together i mean and let me ask about that is there any reason why the plaintiffs could not have sued campbell i mean i guess you can sue anyone for anything but is there any provision in california law or federal law that would prevent a lawsuit against classification hearing that was scheduled for the following week but the incident happened before it took place so we're in hong really never had the opportunity to get involved in this particular particular placement so she input as to whether or not mr smith was suitable for those of self and and certainly there's no there's no comments in the record that would indicate that mr smith was subject to being  to being a victim or of such a predatory attack at all and she didn't determine that taylor could be double celled no she took well i take that back i take that back back in two thousand and eleven on october thirteenth two thousand and eleven when mr taylor busted a soulmate and then there was a review that was done and i believe one home was involved  and that's in the record to excerpts of record eighty two and then there were at least two subsequent committees at salinas valley state prison where m taylor situation was reevaluated and he was including revaluations by mental health professionals were his mental condition was distraught described as stable and he was and it was decided in those two proceedings that  was suitable for double cell housing and those are in the record at excerpts of record eighty six and eighty eight so so the most recent information the most recent evaluations of mr taylor did not involve a warden home the evidence and if you look at excerpts of record three sixty seven and three sixty nine what was described was that that th calling for the incident mr vasquez testified that welfare checks were taking place every thirty minutes to an hour and that after the incident they changed to every half an hour that's that's vasquez's testimony really and so there's no testimony that they were not being done at all and in fact the testimony as to the contrary in that officer garcia was deposed and he testified that it's not only that they were being done but also that the conduct that was taking place at the time of this incident was discovered which was providing showers to the inmates in that section of the prison actually is a form of a welfare check because in order to determine if the in the it's want to have a shower you have to encounter them and find out if  policy didn't come into effect all after the killing you're saying he also said before that and i'd be interested if you happen to have a cite handy for that that although it wasn't every half hour it was every hour i believe that's at three sixty three sixty nine so he's he said that so that's what it's i'm sorry i misspoke at three sixty nine he talks about what the policy was afterwards which was every thirty minutes at three sixty seven every half hour to an hour welfare checks are done so they were being done before and there's no testimony cited from from vasquez or anybody else saying that welfare checks were not  and certainly there's no evidence that were so also with respect to the the issue of the defense there was no information after evaluations of their prison records also there was as i mentioned before it was input from mental health professionals that they were sufficiently stable to handle that but i also would point out in the case of mr taylor that mr taylor was first placed with inmate brown when he arrived at the california correctional institution and and then mr taylor raised an issue  compatibility with with within a crown me so that i'm a brown and a too much noise and he couldn't sleep not too much talk too much and and that he requested a solemn move and what that demonstrates is because at least in that instance that mr taylor did not attack in the brown because he was talking too much and he and he dealt with it a nonviolent way by working within the prison system  further evidence that there was no indication to anyone to sheen that he was going to be any substantial risk of harm and placing these two men together and as also they were allowed to to meet for a period of time and and discuss their backgrounds and and well and they were compatibility and they signed a form that indicated that they both felt that they were compatible so there is no there was no information available to anybody at that that an attack was likely to take place and for that reason knots you know conducting showers rather than conducting a welfare check does not constitute deliber right and that's also in dispute so so from a failure to intervene or perspective officer around didn't have any opportunity to to get involved in this whatsoever and and so and that didn't happen in this particular case there's no there's no issue as to him there's no indication as to when you talk to a place so there's no indication as to whether or not this attack took place even before officer vas came on duty so even if mr officer vasquez had violated the constitution in this way that it's not a material issue of fact because there's no demonstration that that had he followed it would have prevented this attack from taking place at all and so therefore there's no facts in the record that indicate that officer vasquez had a reason or anybody else had a reasonable offer to the shoot or did this particular incident and then say to this case law that actually holds to the contrary the roads vs chapman case holds that there is no constitutional right to single cell housing and then there's a decision from this court in lab a tad versus correctional even though common sense might indicate that the two gangs my have some rivalry when there was no specific information available to the question officers that the two particular in mates involved in the  to attack each other and that cases directly knowledge as to this case in that there is no specific information available to anybody out california crush the institution that this attack was likely to take place so based on the evidence in the record the district court's decision should be affirmed and unless there are any further questions i would submit it no questions here are thank you very much  i don't want to reiterate what i talked before about these gentlemen to conventions but since they had been incarcerated both of them had attacked other prisoners believe it was  aspects that goes into making these housing decisions is him put from the mental health professionals now with regard to mr taylor let me back up when we talk about mr smith mr to mental health professionals that he was hearing voices that he was becoming increasingly paranoid and mr taylor had earlier attacked actually both of them had earlier attacked inmates in the cells and outside the cells but mr taylor specifically told a mental health professional after he h notice that both these men attacked people had significant mental problems and in fact one of them who turned out to be the killer and told the mental health professionals which  didn't i don't i don't i don't recall that i just was stunned that he had attacked somebody and then told a metal professional in l a our health professional that he had told them