good morning your honest mayor please the court my name is mario williams and i'm here representing the appellate area screen your idea i want to take thirty seconds to acknowledge a former colleague of mine michelle hershel was the the lawyer on this case had  she unfortunately passed away and i just want to say that she was a very great attribute to the state of georgia bar that said your honor i stand by my brief i took ten minutes i would like to go directly into answering questions if you would like me to start on what i believe the deliberate indifference claim i can start off how are you like ok i will i start out with deliberate indifference the first thing that i would like to point out is to cite the dissing the case the supreme court precedent which says in fabric lee that there is a special relationship between a prison system and inmates in the police in this case have assumed a caring custody for the inmates in their jurisdiction and that relationship means that those those under that assumption of care and custody have to take reasonable measures to and institutions in which they do major classification has notice in their second great question that's that because it gets to a serious issue in this case of a missing document the way this process works based on the evidence at hand is that dairy is green arrived at rogers state prison years prior to getting put a rider state prison was put in administrate of segregation upon arrival derry's green was strip searched had breast was issued a bra at the prison before and then was placed in a ministry so gracious so was the point to answer your question directly there is an assignment memo by policy that must be filled out on that assignment memo it says reason why place in segregation that assignment member was gone missing i have not said that it was deliberately destroyed but the fact of the matter is missing that assignment memo is signed by the warden app or the wards designee but what do we know on record we know first and foremost that twice darrius green was put in administrators segregation the second time daschle has been a minnesota great administrative segregation warden hook sign the assignment memo so we believe that there is a tribal issue of material fact as to first why dare you should bring a transgender who was issued a bra who had breasts who were scripts searched in place an out of the normal custom in administrator's segregation we believe there is a tribal issue for fact for a jury to determine it was that worn hook's person knowledge that barry is green was transgender n and this is where the standard comes into play farmer case sort of give you a problem there i mean isn't doesn't a case sort of a stablished that the mere fact that a person is transgender does not automatically impart knowledge of danger to that specific person thank you jerome i'm glad you asked that question and to answer directly it would present a problem if that's the only facts we had so this is a totality of circumstances the way you look at this evidence so we have a tribalist she first on less than viewing the facts favorable to us warned her sign an assignment memo dahlias green a transgender who came over with her file as a transgender was placed in segregation not like the rest of anybody going to general population because she's transient but they also put her wherever she why based on what she communicated and there's no evidence in the record that anything was communicated she had been incarcerated before and she not yes ok so she had been incarcerated before an inference and when she went through to classifications one of the initial institutions and then that at that  she had been physically molested that they know that when she was first considered for assignment that's the first institution and then when that then when they knowing that they centered at this present an all male president you understand that with the standard i want to know what what is in the record that she told the first institution on the when they were acknowledged just because he sent her back with a letter saying i'm going to send you back with a letter because i don't want you to be designated as a snitch and possibly lose your life identifying an inmate by name and getting that inmate in trouble  life at risk in institutions such as this so her saying i'm ok does not under the totality of the circumstances negate the facts that the warden was aware of the testimony and facts demonstrate that the mother called the department of corrections when i asked warden hooks did you get a phone call about various green being a transgender possibly ok did the mother call you yes did she send a letter over i'm not sure no i don't remember reading the mother testify she sent the letter to warn hurts but more than that he was told i received a letter my service transgender the letter says she's in great danger fear for life could be killed o when you knew she was in fear and that simon memo says that back to general population you know what he said he said because i can't protect you from somebody and in a district court adopted this philosophy essentially if i don't know who it is that's  hill pace farmer case is that some lawful it may be a factor in the totality of circumstances under consideration of the facts but it can't be dispositive issue it he made it to dispositive issue there are tons of factual record danger but i can't name the person that it which is it which seems to be what you are arguing but in this case told the warden there's no danger we're told the war namo case which is a no and i asked the warden and the deputy ward security of brown  said hey is that normal have you had a situation where someone says hey i'm fine but you know they're not fine yes that is prison cut my understanding is they had a conversation lasted about a half hour with a much more reason why you should have taken reasonable steps because during that conversation the mother said look i got the letter the evidence part i'm not with her for a half hour no it was where the mother was on the phone that the way that conversation worked was the mother was on the phone  prison environment you can't say hey i get this information you're recognized identifiable member of a boner go group that's farmer that put him on fair warning about transgenders and i get this information about you fear for your life i i know the head of the dog and i'm going to negate all that information because you in a prison environment knowing snitch culture say i'm ok that's not the test the test is were you aware of facts that we're inf was drawn from those facts that the risk of harm was placed to dash green and we have a total amount of facts that a juror argument lou and that is that somebody a transgender or somebody is homosexual because warden had facts that said that this particular person not online on no no what i'm saying is you've just sad that a person and her situation is never going to give the warden appropriate facts that's not what i said i said she did i don't know if a thank you art and they please the court there are many potential distractions in this case but focusing on the relevant legal standard and the actual record in the case makes clear that green's claims here can survive summary judgment i have one concern  there is this there are two letters that greene wrote and the second letter in particular she articulate she says that in the second letter she said that ricard is molesting me sexually he's requiring me to perform oral sex on him etc and so if that letter had been received by any of the defendants would you agree then that they would be put on specific notice and that they then would have an obligation to take protective steps your honor i think that if it were actually in the record that a defendant had read the letter described as green describes it then we would get past that that would be sufficient knowledge of the so i have great character is my concern in this case it seems like the district court did not credit the idea that green sent the letter and that and since she sent it on the seventeenth and the incident occurred on the twenty first and it was sent to brown i think with respect to the hooks in the ward you know the warden and  the other defendant grubbs this is not an issue but with respect to brown i mean she said she put it in the prison mailbox and so then it becomes an issue of fact he said he didn't receive it but we generally would imagine that once it's put into the mailbox there is a presumption of receipt and so maybe it seems to me that there is a genuine issue of fact as to whether or not it was received my understanding is that the district court did not credit this because it said well you know if i do this than any time and then anytime a case like this comes up for a prisoner can i say put a letter in the box and then we've got a problem but our in this circuit is that there is not some unique presumption with respect to statements that are made by prisoners for says other litigants so why isn't that something that we should send back and have the district court conduct a hearing or so of some type in order to determine and make a factual finding as to whether or not brown received the letter your honor of a few responses to  that first of all i don't think it's accurate to characterize the district court as not crediting green's assertion that she sent the letter the green the district court does say you know even if we credit this is certain but i think you have to back up and a what is the fact that we're talking about here the question of fact that is material is whether brown not only received but read the letter and you have undisputed testimony from brown that he did not direct evidence that brown did not read that letter but at but why isn't there a question of fact as to whether or not he did i mean the question of fact being let's say there he did receive the letter right he says he didn't receive it but let's say he did receive the letter i mean any time it seems like you have the exact same problem with respect to not believing it seems like of the exact same problem with the prisoner as you would with with brown right which is if you're always going to choose to believe the the prison employee right then what you're doing is you are creating a situation where the word of the of the prisoner is not considered or evaluated in the same way as the word is the prisoner i eat i mean when she says she sends it in the prison mailbox there is a presumption that he receives the end may well be the case that he did and i'm not suggesting that he's i'm not saying that he lied i'm just saying it seems like there is a material issue of fact here as to whether he actually received it and if he did receive it i think he had an obligation to read your honor i disagree that this is a sort of credibility fight on one hand you have brown saying he did not receive or read the letter on the other hand you haven't we do credit i think that the summary judgment stage that green wrote the letter and put it in the prison mailbox i'm not aware of a presumption let me know but i'm not aware of a presumption that an internal prison mailbox that when you put it in there it gets to what it was what one of the records show is to the mailing system as the i for example if you were gonna replicate the u s postal service you'd put all the evidence that what happens on things what is there and in the record about this mailbox how it operates and all those sorts of things not much that i'm regulations about this internal mailbox but but what i will say is that it is it is greensburg to show that letter got to brown welfare one so if we were dealing with the united states mail service mail receipt and the delivery receipt showing that it was delivered to the person we don't get i mean i need a certified mail receipt in the regular mail right i mean just simply saying a declaration or an affidavit i put this in the mailbox in the u s mail that's enough for the presumption to kick again i think that baby enough but it's not necessarily true here and because of that it requires a significant inferential leap to get what does the record show as to her interaction with her interact that possible interaction both before and after that letter there's there's the only interaction with brown that i'm aware of in the record is that brown was at that meeting with the warden ok i mean is there anything said at the at the meeting about the letter the letter was written before that the the the letter from green to her mother was written before that there were spared but the letter in the drop box was before after the meeting after the meeting was on august twenty eight the green asserts that she sent a letter on september seventeenth and then then she wound up an administrative segregation not long after that one at the on the twenty first on the friday of that week i say how many days and but when she was the problem is that when she was put into administrative segregation she was put in with regard the very person she complained about in the second letter and that was where the problem arose from your hon the the assault that's in the record between ricard and greene occurred in administrative segregation but again i think i want to make very clear that this is not the kind of case where you have simply a he said she said debate that that is ripe for trial you have direct evidence from brown that you never read the letter you have at best circumstantial evidence from greene that she sent the letter that she put it in the mailbox about why is it circumstantial evidence i mean we just had and it leaves a tax case but still a tax case that we heard on bond where we said if you say it in an affidavit and there's nothing to contradict at then for purposes of summary judgment that is a fact that we take into account so why is it just circumstantial your honor it's circumstantial evidence because again the fact that matters here is whether brown read that letter and became aware that circumstantial about her having put it in the mailbox had her having put it in the mailbox is circumstantial evidence that she did say that it's actual evidence that it was put in the box that you have to draw the inference that somebody did nothing right there's a chain of inferences that you have to draw so i guess that's right the direct evidence that's why i asked the questions about whether you have regulations in the system that say you  as if there were u s mail service correct your honor and i i'm not aware of anything in that record that shows that it is a command i mean in four days in a four day period the raid i mean i wouldn't it be fair to expect that what's put in the mailbox inside a single institution in prison would be would make its way it would make its way to its to whoever it's addressed to i mean the u s postal service gets things there in three days so and it's the whole country so wouldn't you when you expect that if something it had been put in the mailbox that we could expect it to arrive at its address see within four days your honor there's nothing in the record that allows that assertion to be anything more than speculation at this point if there was if there was something in the record that made clear that when things are put in this mailbox they always get two officers then then perhaps you have a closer question but given that all you have is green's assertion that she wrote the letter and dropped it in bell box and she admits she never saw the letter again after that and has no idea what happened to it plus she didn't get it back she didn't get it back but he isn't there an inference there that he went somewhere other than to her i mean unless it's  del ricardo being around her she admits that she went to medical several times during the time where she was the testimony that she had problems with him but way way before the administrative segregation your honor that that's correct and let i agree that up until that time there are some serious problems with her case but it seems to me like there might still be an issue of fact this created by the sending of this letter that's and i just wanted you to have an opportunity to address that right and you know the last thing i'd say about that is there are a couple cases that sort of make this point about judging circumstantial evidence and inferences against the direct evidence about reading it one is the bald mountain case that we cite in our  brief where the court specifically says when you have positive uncontroverted evidence of the absence of the fact circumstantial evidence from which an inference can be gone but it's not demanded can't trump that direct evidence i think that this is although clearly if you had the exact same situation and it were outside of the jail there would certainly be a question of fact because there is a presumption under the u s postal service that the person would have received the letter and then you would certainly have a question of fact so the only the only reason why there may not be a question of fact here is because it's a prison mail system i don't know that that's the only reason it is a reason but would you the freedom that if you were outside of the prison saturday and you had the same situation where a letter is dropped in the mail and four days go by that there would be a presumption that the person would have received it even if they testified or sworn affidavit that they did not your honor i think i think it's at least a closer question given the regularity of the u s postal service but this is not a u s postal service mailbox it's an internal mailbox and we don't know what the words of the letter were specifically no there's nothing about the letter in the record  and that was a point well actually doesn't she say in the record that what she said was that mr ricard was making her perform oral sex on him though i mean that seems pretty specific to me you're out of the i was that you're trying to draw is between receipt of this letter by brown and the events in the administrative segregation there's no evidence in this record that brown or hooks or grubs were responsible for that placement into administrators of brown what was brown's involvement specifically in the administrative segregation i'm not aware of any but the problem i'm sorry go ahead and up the the letter once more the letter was written administrative segregation the record doesn't show that he had involvement in that but the problem whoever that was stopped some corrections officer border but the forum inside brigade lieutenant grubbs who is one of the defendants in this case ordered them to be sent to administrative segregation well but i did not put them in those particular cells well presumably brown would have told him about the problem i just want to clarify something from the unabridged version of that when you talk about what his brows knowledge about administrators segregation he was referring to the first time the testimony of brown for the first i mean the second time the first time brown testified that it would have been him or ward in hopes that would is the idea that when you receive the direct information in the letter from dario's green's mother that she fear for a life that everyone seems to almost and i hope that this isn't the case say ok the and that were the case why did warn her scenarios going back to general population with a letter and said i want to protect you from becoming a snitch because in prison if you identify somebody you can do lose your life our expert case of failure to protect that the inmate does not identify the assailant that is the law and that is exactly what hooks did he said and i can accept the problem here is that she said she doesn't feel like she is in the sympathy the losses there is a special relationship between a warden in the inmate that is under his care in custody that goes beyond in a prison culture in mate saying i'm ok when you have all these other factors says you're not ok or or better yet to be more specific about the law you have a set of facts that says you could be at risk of serious harm that's the law the law always do you have are you aware of facts that imprecision drawn that u s risk not that you are in serious danger you're at risk of serious harm you ha record with this have it me because i don't have it in front of me but i'm almost positive when i asked him the initial time hey are you one hundred percent certain you didn't read the letter he said i can't say for sure and then he came back and said but i know from what i read it i would have acted so therefore i didn't read but the but going back to where fast is this is important you cannot in a prison state setting negate that by her saying i'm ok because she doesn't want to identify somebody point number two and i know are driven beaten up one more minute as you also have to take in the fact that the material evidence on the record is  of there is a tribal issue a material fair for a jury to resolve that could easily conclude hey you knew there was a risk of harm but because she did not been a fire and you made that dispositive issue who she was at risk irv you went ahead and negated all the facts that you were aware of to protect reasonable steps to protect or so the mere fact that the warden received a call from her mother regardless of what green say in the conversation with the warden the mere fact of that phone call from the mother should have put her into administrative says that to me effect is the fact that the warden under the standard review understood that there is green was vulnerable inmate because he segregated at the first time when he didn't have any evidence there in with wings mother gave him the facts that she was in danger that she wrote the letter who brings mother said i sent the letter over to the board so we have another issue such as just wrote about it or whether he read it or not then on top of taking measures when there was no evidence just the transgender status of segregation for nearly a week when she first got to prison then you add the specific evidence of a letter saying i'm in great danger i'm about to be killed i need immediate transfer and you're going to negate all that