good morning your honour's man please the court jr hall verson on behalf of mr whitney mr whitney asks this court to reverse the dismissal at the pleading stage of this case on the basis that it was inadequately pled guilty because he did not plead that in addition to being deliberately indifferent officer sharp and perhaps other corrections officers at the jail that mr whitney was a suicide risk before they were and deliberately indifferent to him we have put before the court pleading in the br eight and rule nine he pleaded that he was arrested taken to st louis university hospital where he was treated for a number of medical problems including suicide risk then transported to the city jail at the city jail he was transported there with notice of all of those medical problems and he was put into the crisis cell in the city jail the crisis cell in the city jail had continuous closed circuit t v monitoring presumably the policy was he was there as a function of the city's general policy to prevent suicides and to protect and provide inmates whether they be pretrial detainees or convicted detainees with reasonable medical care that includes as a constitutional matter reese will medical care to protect people from committing suicide while incarcerated who did the district court go wrong the district court went wrong in several respects first the district court went wrong in saying that the pleading was insufficient under rules eight nine even though the court didn't  identify that because i fail to see allege that shark knew he was suicidal in addition to already pleading that he she was deliberately indifferent with respect to his suicidal activity of shredding his cell and his clothing to create the noose to tie it to the shower to hang himself over the course of fifteen or twenty minutes in the morning of august the tenth two thousand and fourteen th ere is no case that i've ever come across and i put the challenge to the defense in this case i've never come across any case that said it was necessary to plead that the government agent knew of and then deliberately or in was deliberately indifferent to the medical needs the ultimate test is whether or not the person was deliberately the complaint was deficient because there was no pleading of the ultimate fact of deliberate indifference deliberate indifference is a term of art that includes the component of knowledge you can't be deliberately indifferent unless you first know something's going on furthermore the fact i pleaded facts that it was sharp's responsibility to monitor it still it seems like she was a wall i don't know how you'd miss a guy committing suicide by shredding his i mean eighth amendment standard all of this court's cases involving inmate suicides whether they be pretrial detainees such as walker or convict the prisoners internet stripping of detainees under the fourth amendment well mister whitney's rights are governed by the fourteenth amendment because he's a pretrial detainees that's liberty reciprocal of arrest and seizure which is the fourth amendment so there is no mental component other than reasonableness to the fourth amendment arrest and seizure arrest and seizure with liberty under the fourteenth amendment you can't be deprived of liberty in other words arrested or seized or confined which is a form of seizure on less it's reasonable so the fourteenth now by kings has obviously incorporated in its decisions we have that standard fourth amendment fourteenth amendment deprivation of liberty as eight simple reasonable standard sorting all this out taking us through the path so that pretrial detainees who commit suicide are now governed by the fourteenth slash fourth amendment simple reasonable in the standard so that we have we've played everything we can play your honor how can you plead more than the only investigation that they give you is a pleading requiring me to be clairvoyant i don't know what the facts are in a closed environment of that  i don't how can anybody know that other than by being clairvoyant the rules do not require the proponents of rights to allege something beyond their ability to investigate an initial stages that's into life as recently as this is february again that standard still has applicability certainly i can go about investigating all that the a wall people who allowed this suicide to happen  attempted surprise which the federal rules of civil procedure are designed to prevent is something that somehow cabins constrains or otherwise sets aside a ball and twamley is that your understand where you're going with this at all and maybe i'm just stupid but but it sounds to me like what you're trying to do is trying to take some stray remark and then bring back gibson the life ignore it ball and twamley and then arrive at a conclusion you want and that conclusion is based on some law review article which has exactly zero force as an argument to me maybe to the other judges it matters but i don't see some guy from cornell as being  united states supreme court or any other relevant authority to pay attention to well it involved a prisoner a pakistani muslim who was swept up in the aftermath of nine eleven and went on to plead th conditions of confinement were brutal he probably got beat quite badly in prison he went ahead and try to then go up the line and say well now ashcroft and muller are responsible for the policies that have filtered down to the application of my beatings in jail and that's where the court said well wait a second you've got to be give us something more some more concrete than that prove that they established the policy or ask the blind of the policy the code red you know you can have a policy on the one hand the says don't hurt this guy you have a code red from me of that movie a few good men you know that you order the code red to harass this guy yeah i ordered the code red there can be policies and policies but but it bar and work which are reconcilable and the supreme court has repeatedly reconciled them but gentlemen you have to insert  the jail suicide cases or the jail suicide cases or we're i find i'm sure mark ali very troublesome very emotionally but our case law is what it says and you read our case well before you filed your complaint i assume that you knew what you had to allege in your complaint to get past the motion for dismissal yes or and here did you allege all of these things that we are now supposed to presume were obvious in other words that the jail petition which was a search that mystery petition yes i said at paragraph seven in the conduct of the city jailing personnel particularly sharp was either negligent or deliberately and different both were legal conclusions the facts well it is a legal characterization of the conduct of the underlying personal responsible for monitoring this fellow now i'm not advocating return to cold pleading but it does seem to me that you have to plead in actual fact i thought i pleaded that all the facts i could by incorporating the medical examiner's report of those  therefore the only thing he could possibly have done is commit suicide on closed circuit television with respect to a person who was supposed to be there monitoring him for a variety of medical conditions like the barton get he they knew he had serious medical know as i've indicated she cited your dorm our case for the proposition that i had to plead that she knew that shark or the personal knew that he was you didn't say that this court did not say that this co out of their observation post to screen netflix's guards they did not observe him they did not intervene they did not have any evidence they were streaming netflix the only evidence i have of that of course not i can this pleading stage i do have been submitted yesterday the reports of investigation when that's what the city has found with respect to their personnel behavior their corrections officer behavior in the jail they found that that's what happens that people go a wall they go on to their cell phones they go do a lot of different things going a while and deliberately indifferent to their responsibilities to protect the the constitutional rights the plaintiffs in this matter incorporated into his complaint the report of the medical examiner outlying numerous facts about the underlying incident those in a medical observation unit at the city justice center right across the street important to note that there is a distinction between a medical observation unit and a suicide observation unit and in this particular case  risk and then on top of that of course we have no facts to demonstrate that he disregarded that knowledge of suicide risk so the first argument that we've laid out in our brief your honor of course is the pleading standard that judge erickson  an entitlement to relief so i think what happened here by incorporating the ample facts from the medical examiner's report we have this very situation contemplated by a law that the well pleaded facts while putting aside of course possibly give rise to entitlement to release because they don't overcome qualified immunity as it relates to fourteenth amendment pretrial detainee jail suicide case to be a barrier to discovery in types of kate in case there's a alleging wrongdoing by government actors they have to overcome a certain threshold in the pleading stage in order to even open the door to discovery and  legal conclusions instead of saying she was deliberately indifferent you know that it could have been pled to say that she was aware that he was suicidal she disregarded that knowledge that he was suicidal i don't believe any of that played in there and then and even if it is it allegations necessary to satisfy the district court's requirement i don't believe that's true or honor i think i think it omitted the medical examiner's report or not incorporate that by reference he could have pled facts that would have allowed this claim to at least get to but but that's not what happened to me ask you this the complaint does allege that the jailers in paragraph teen jailers placed whitney in medical observation because whitney you know what with the combination of those two allegations save the compliant because it would imply the implication is that jailers knew he was in medical observation way i think that if you had cloud that sharp knew of those things as opposed to more generally saying jailers i think if he'd said she knew because of the standard the deliberate indifference standard of course is subjective it belongs to the individual  and not sort of a grander a broader general knowledge by the facility but but but i think again it goes back to the idea that by incorporating facts that contradict that i think that's correct i think unless the court has any more questions for me i think i've i've made the point that i'd like to make safe safe for the last one which regards monella liability against the city of st louis again we're asking the liability does not lie mr the plaintiffs in this case argued that the city should have adopted a certain type of policy but i think the law is pretty clear that that's not the standard to trigger municipal liability under menow it please the court the medical report does not say anything about whether sharpe knew or didn't know that he was committing suicide it ends with her description or quoting her saying well i saw him pacing is sell at nine o five there are discrepancies in the timetable i don't know when she actually found him i don't know what she was doing between nine hundred five and about nine nineteen when other records say she discovered him that's when he committed suicide where was she she's responsible to monitor him i don't know what her state of mind was i can't tell you where she was i think she was a mall with respect to the description of what judge jackson said judge jackson didn't say anything about the medical examiner's report describing sharp state of mind at page five judge jackson's report this isn't just page six in the appendix plaintiff's denied suicidal ideation and therefore and was therefore placed on medical watch instead of suicide watch first of all there's nothing in the petition that says there's a difference between medical and suicide need told me he was suicidal and i suspect that was still bill or came in because they probably knew it was then and there and immediately passed the line and it went into a black hole and nothing was done concluding there is absolutely no admission against interest in this complaint pleading that she did not know what was going on doesn't exist and that's the only thing that would preclude me from proving that she did know either directly getting her admission or inferentially she had to know if she's in the observation post where she's supposed to be observing him the differentiation between a suicide watch and a medical watch is