good morning folks and you may proceed thank you over a saunders was incarcerated there is an important note as far as the analysis and the district court and the plaintiff appears would like this court to analyze the conditions kind of in one whole lump of conditions of confinement instead of separating them out as far as each deprivation of need each allegedly unconstitutional condition but the correct analysis is to take each condition and analyze them by it by itself instead of taking it all together and the plaintiff complains of several different categories of allegedly unconstitutional conditions and i will address the meets on their nine by five twelve or nine fifteen foot cell so we're not sure which cells he's talking about there it's a little unclear and he also testifies in deposition that sometimes there were up to eight people in the cell with him sometimes six seven five sometimes three or four people were always coming going in the population which changed by the hour so this is really at most alleges a short term crowding in the cells doesn't allege any sort of long term lasting crowding situation plaintiff vance of the florida model jail standers it's a standard for crew for cell population that we should use but that's not what the constitution requires the plaintiff overcrowding really fit into the unsanitary conditions that they were so crowded together when they had to sleep the if someone used the toilet the they were splashed with urine  you know that is they didn't have shoes so they had to walk in the fill so i would i guess i would be more interested and haven't you discuss why why that cells was the way i read the allegations well the planet did say that he never saw them operate or changed i mean as far as we're concerned that doesn't mean it wasn't a q can you well i mean we except his allegations right in this posture of the case right well that's true you have said it straight you're on about it he doesn't know he doesn't necessarily know that it wasn't change he just didn't see it change but his allegation was that it didn't didn't change right and that there was vomit and you know excrement and urine and on and on on the floors of this well where he had to walk barefoot i mean no toilet paper right i mean that's what he alleges are not sufficient toilet paper right he does allege that the toilet paper wasn't in the cell with him and he had to ask for it and sometimes he got it and sometimes he did they used the side of a styrofoam tray for eating utensils and there's a reason for those restrictions because well i wanted to focus on corporal right if i could it seemed like to me you were making the argument that he didn't have control over mr saunders placement in the acute pot is that your argument yes it is but there's an affidavit from corp or supervise the deputies in the unit that's a quote from his affidavit yes i just don't i don't know how that comports with your argument that he he didn't have control over it because the inmates he didn't decide who came in and who went out that's turman by mental health and this and mr saunders i mean there's no dispute that mr saunders was there right that as far as how many people had to be in a cell that was not up to defend and right he was a corporal which is basically a kind of a low level manager it's one step above deputy relieving watch deputies making sure cells are  and and then also with regard to cope all right i wanted to direct your attention to the august the third incident where mr saunders was you know beating his h i mean i couldn't i mean that would allow a reasonable jury to find an eighth amendment violation when the i mean if you believe his allegations if you accept his allegations as true which we have to do at this stage i mean that that creates a jury question doesn't it as far as the condition are i mean argument there would be that saunders subjective reaction to what he perceived is the cell that was too hot does not drive the n now wait a minute i mean i mean you agree that the acute pod is for people that have mental health as she's right ok and so if somebody is engaging in self harming behavior that i mean that's part of i mean that's one manifestation of a mental health problem right ok and so i mean if that's why they are housed there and you see somebody engaging in and so harming behavior and then are you i mean it seems like to me that certainly creates a fact question about whether there's a safety violation the claim is really unconstitutional that as far as defend the head beating incident that pl ff highlights here is that it was a damage he suffered as a result of a hot cell not that he's suing defendant right for failing to protect him from beating his head well i think you read a lot of different ways so so i would have so i would have thought because i agree that with judge martin that they are from this allegation there might be a fact question about the defendant state of mind but i thought i thought your argument when you stood up and i thought it was the right way to go frankly was to say there are two prongs here first you've got to show unconstitutional conditions of confinement and then you've got to show that he had a subject a bad subjective state of mind and i'm going to focus on the former because as to bad subject e state of mind i think that there are some facts in dispute here but as to unconstitutional conditions i don't know whether the head beating episode really shows anything about the conditions themselves or not  it and if the officer sat there and left at him that it might show that the officer had a bad subjective state of mind which would prove prong two of this claim your point is that they haven't proven wrong one of the claim and my understanding that oh ok and if i didn't have toilet paper and i had to eat with my hands you know i would consider that a serious safety concern but with regard platform which were brought in when there were visitors to the pod for for the inmates to sleep on and then when the visitors left the plastic platforms were removed and they went back to sleeping on the floor i mean is that demonstrative of subjective knowledge of the part of the problem i do know that is an allegation and in the lawsuit however the mass don't violate the constitution  it's not a violation of constitution to sleep and a map with no i mean but that doesn't it demonstrate subjective knowledge on the part of corporal right at least that the these cow yes it because the math do you know violate the constitution in and of themselves there wasn't a violation to begin with saying that there was some other sort of bedding brought in at certain certain changed between the cells his testimony kind of changed first he said that a lot of times quote unquote they would not change the water between the cells and later he said he never saw them change the the cells and there was an issue about self flooding saunders said that inmates would occasionally flood the toilets in the cells causing water to soak the mats but he said the longest it ever took for the officers to come was thirty minutes and he conceded the reason they didn't rush in was because of concern is doesn't give you a particular incident but you said that that generally happened and that one point he says it would not get cleaned up for several days if i have the testimony accurate him he said these instances we usually cleaned up right away but it's sometimes taken three to four hours to not a court on sanitary conditions in the cell which seems to me to be the most powerful argument they have is talking for myself even if you take the facts that the plaintiff advances and in conjunction with that if with the deposition testimony that he submitted and supportive of his opposition involving you know mr kenny and mr whitely also says that everyone is removed in the cells or spray down if somebody gets feces on the cell a short term sanitation problem does not violate the constitution cases where short term sanitation was violated the constitution were much worse than this does not the playing of say though it wasn't short term he does argue that you get an argument and argument isn't a fact he plead or offer a fact that the unsanitary conditions were not quote short term thirty minutes sixty minutes ninety minutes till they could get a guard to come in and clean it up but rather last a days there is one point in his deposition where he does say it lasted days and in contrast to that if you believe that why wouldn't that be enough to put into dispute a material issue of fact about unsanitary conditions if we believe not the part where he said thirty minutes but the part where he said days yes ma'am well constitution could it jury not find from that that's the strongest argument he's got as far as i can tell and i want you to help me with that specific and precise allegation he makes  the it depends on the amount of of the sanitary problem he's talking about because you know we cite a case jacoby case where there was a year and splashing on the floor from the toilet in the cell that the inmates were exposed to human excrement he says sleeping on the floor next to the toilet as well and that was not a violation in that case so we would argue this case is similar to that one and that you can hold there is no violation as far as the sanitation all right thanks very much have that's correct and i agree with that the so there there's a mono claim their individual claims i don't dispute there's your six over the individual claims requalified immunities issue right that's probably before the court however i don't think the money will claim against a share of is inextricably intertwined with the issues a strict leaders wine handed down from a bill from this court what we know is that the facts and the law have to be sufficiently similar in order for this court have jurisdiction over that issue here if we take these two claims of heart and soul of the elements for the individual defendants w papers they discuss a lot how if there's no concept of violation for the individual defendants there cannot be a concert a violation for them i don't claim i don't think that analysis correct and i don't think a case like she supports that for one thing being for the right to be clearly established is not part of the analysis at all in fact this court has at least three times pointed out that in cases where you have no ability coupled with qualified immunity or individual ability that almost always are not a strictly intertwined i actually agree with you about that i don't know if my colleagues have any questions about that but so can i turn you to judge prison ells order in this case yes your honor so you did well but record i think the court actually erroneously analyzed if an educator as though she was part of the bundle claim and said of analyzing her individually and seeing if she was entitled to qualified immunity i don't think that does he talk about the subjective prong of the eighth amendment at all i mean you know ok it i mean so in then also i think for the in the qualified immunity analysis i didn't see him say there was a constitutional violation that was clearly established is i'm all right about that you're also right about that we did brief that issue but it was not specifically addressed in the order so i mean if if we're all in agreement about that then should i mean what are you asking us to do are you asking us to do that or to send it back for the district judge to do well in all candor i think the district court did make a mistake i'm qualified to meet issue and hav problem saying that but i do think that for the claim there's no jurisdiction over that issue for these i got there ok but in terms of i mean in talking about whether there was a clearly established constitutional violation do you want us to do that or do you want  to send it back to judge personnel for him to do it and i have no problem or you're not here having this court do that and same for the subject of prong on the eighth amendment violation yes your honor so argument with respect to both because of their positions in the jail they were certainly aware of the totality of conditions of confinement a daily basis they observe the overcrowding they observe and unsanitary conditions and they observe the fact that inmates were not let out of their cells often temporarily how long he's there and let me with the knowledge on the part of the defendants here jeter in particular with respect to the unsanitary conditions well our allegation but to respect the different enjoy know the allegation that's the facts that i'm concerned about that are reduced in this record that would put that into controversy  they claim saunas has failed to reduce the kind of evidence and has not raised a jury question concerning jeter is knowledge of deliberate indifference with respect to the s conditions he doesn't testify as to any incident in which wright or jeter refused to clean up any mess but he's referenced in a sort of a general kind of way the problem and then with respect to the personal involvement on the part of jeter he offers he points to letters and grievances he said quote would have been received by jeter it refers to a letter dated february nineteenth two thousand and nine six months after saunders first and in the global ended in september of zero eight  and the grievance referred to in the other grievance is about inadequate medical care he received after and incident in which saunders was attacked by a thorough inmate it doesn't say anything about unsanitary conditions and then he point you point to testimony from kenny that several in ray's brought the conditions of confinement to jitters attention and she said she would address them but that that never changed and she was quote hardly ever seen in the unit is that the totality of the evidence it is right or anything else that i'm missing now as to my client the allegation is that he followed the grievance process that required him to think there is because first if you look at him a handbook it defies the process for grievances it states that you have to you first try to informally resolve the situation with officer you can't do that you ask for a grievance if it's only supposed to give you a response back would suffice to establish his knowledge of the sanitation conditions would be what would be the point me sort of specifically to what would support that claim well i think the best best evidence that is it is right on affidavit and for he talks about being in a bubble area where these things are occurring so by virtue of the fact of him coming to work every day he can certainly observe the fact that the cells are crowded and we have a cell of somewhere between one hundred hundred thirty five square feet with seventy adult m looking at my table here looking at always have seventy eight i thought that number varied it varied sometimes it was seven to eight sometimes it was far to six sometimes it was three to four right is that the testimony that is a testimony the might be illuminating but that in and of itself doesn't yield the conclusion right that the them is violent ordinarily is true i think it does violate however when mates are triple booked and cells which is one of the allegations in the case and what's the what's the i  guess i feel like we sort of need to get back to first principles here because we started talking about appellate jurisdiction the only thing we really have appellate jurisdiction to determine is whether or not the right clearly established correct there is a constitutional violation on the facts alleged and whether those rights were clearly established that's correct and so not about whether there was or wasn't a fact issue but on the facts alleged whether they were whether the right existed and was clearly established that's correct and so what clearly establishes for instance the law with respect overcrowding  not the prison overcrowding guidelines but what i did said a couple cases of that issue in my summary judgment motion below your honor i guess it was the district court who cited the supreme court case rhodes versus chapman i didn't really understand that doesn't even seem to follow me and that frankly is where the problems the order below but our allegation also is also not double selling is triple selling so it would even exceed what courts have already found to violate the constitution as so help me out with this which courts are we talking about not in the circuit i think we cited a six circuit case which which is where that language came from your honor but which can't clearly establish the law for our purposes right right now is there clearly established law in the overcrowding claim and i guess just in fairness while you're looking i have the same basic question for the sanitary conditions claim and heating ventilation claim just having a hard time figuring out whether as a generally in assessing claims of unconstitutionally overcrowded jails courts must consider the impact of the alleged overpopulation in jails ability to provide necessities such as food medical care and sanitation and then in roads the supreme court held double shelling does not amount to an eighth of them in violation in part because it didn't lead to deprivations of sen r anything clearly establishing a that seven or eight particularly from the supreme court of the united states is not you know would violate the constitution there's no language for seven or eight most cases however i think when you look at the concept of the abstract if you're talking about overcrowding have to have some basis say what's overcrowding you have to have some square foot measure that by so to say seventy people are not overcrowding that really depends on which space you're talking about and occasionally i don't doubt that you would need a case to say if they had twenty or thirty people in an inn in a cell that size even without a case on point that that could be clearly established just did with obvious clarity that it would just be apparent every anybody but that's not what you have here you've got seventy eight five to six three to four on different occasions and i don't see a case from the supreme court that would clearly establish that is to say put the officer on notice that the i lease i don't see it on the the overcrowding seems to me the strongest claim you've got again i'm just talking for myself is on sanitation but even there i'm looking for you to point me to some clearly established law that would have put these two officers on notice that what they did or what they allowed to proceed amounted to hygiene items including so and general sanitary conditions that it would do the let's talk about the the deprivation of the toiletries i thought there was evidence that the reason that they didn't give them these utensils and some of these items to begin with was because of the fear of suicide risk presented by the inmates who were in the bubble that was the reason why as a general matter they didn't provide this or utensils that's correct and there was no dispute about that in this record right now not for metal utensils you know ok and what about with respect to the the soap and the toilet paper well first there is no soap and this and it sells that was the allegation this case didn't they bring it whenever anybody asked for it that they get it within forty five minutes or a very maybe i've misunderstood the facts the facts about this soap was always that what was brought when it was asked was a toilet paper and sometimes there's a delay intentionally was up to forty five minutes correct ok when the inmates could see it you know right in front of them and their guard was sitting there doing nothing except not giving it to them so the allegation is and maybe just following along are the cases that you're citing as clearly establishing the law chandler aren't those more extreme unfairness deprivations permanent deprivations of these items i think it's fair to say that yeah it's more extreme however i think our facts are still extreme enough to violate the constitution and clearly so so as to provide the officers  think anything else that you would want and i did we didn't mean to cut you off here no i think you covered everything i would have otherwise covered thank you thank you very much and so you had reserved for minutes because you have to go for clearly established law on qualified immunity and the now says is different for the sheriff but if you find there is no constitutional violation that takes care of both of the claims it's not necessary to move on to clearly mono if if i at least think this is not a deprivation case but a clearly established case then the qualified immunity and the money i'll claim are beginning to diverge correct it's true that if the only reason they find that there's no i  false arrest case for the individual dependents and then went ahead and took pen and jurisdiction over the mono claims for the same reason there is no violation of the constitution and that's our position and as a whole anyway as far as all of the conditions and i wanted to i think we talked about commander jeter and her involvement and i just want to address one of the one of the allegations supervisor if they are not satisfied with the response they receive to their grievance and that necessarily means that's going to be commander jeter there's no indication that that's the case appealing to i mean there are many levels of it was we could i mean it seemed like jeter got a copy of the february seventeenth two thousand and nine letter didn't everybody seem to agree that that would have come to her a letter addressed to the sheriff i don't believe that's the case and the record now there was there was some deposition testimony from major dodson those kind of pieced together to sort of infer that you mean or jeter would have probably received a letter but you know it was never actually shown that she did and she certainly didn't remember that saunders said referring to this february two thousand and nine letter the judge martin is referring to that it would have been received by jeter and jeter said i don't remember this is not the state of the record well i mean respectfully the point if mr state it is it is your honor he did say that of course he's in no position to know whether she would have received it or not whether he wanted her to receive it doesn't mean she did but again just so i'm understanding the sort of the tearing of the arguments this is sort of a second and dependent basis upon which jeter might be entitled to summary judgment in your estimation because he wasn't personally involved and if there are if he's entire if there's no clearly established law in the first instance the none of this  matters that right well that is true there's no clearly established there is no liability of course and i mean separately if there were then if you if you want personally involved there be a basis for summary judgment right in order this is a distinct argument that you make yeah to make clear that i've got it straight in my head mark issue one was there a violation of the constitution issue two was a clearly established issue three even assuming argue window a and b are met can you attribute that to these defendants in this case that is the say gee they were right and your position is you can't because they didn't know when or if they weren't present they didn't have the authority etc but that's a distinct and independent argument from whether or not there was a violation of the eighth amendment and distinct from the second question of whether the law was clearly established right that that is an additional requirement for qualified immunity for the person that he directly the next case would be spencer versus the city of orlando