morning to the panel in may please the court my name is john khan from the law from of archer and griner on behalf of the twenty seven appellants all current or former employees of the united states your presence at the federal detention center in philadelphia i occurred in october of two thousand and six i believe your honor occurred in the recreation yard of the special housing unit that occurred while the end mates were just about to hex at the recreation cage it was  detention centers policy that before and inmate was taken from the recreation she came said each inmate was handcuffed before they were let from the case mr best man was the second or third in line to be handcuffed for the prison safety for the safety of the officials as well as and meets at that time was reasonable objective objective lee reasonable and further to support a claim for failure to protect mr have to show that  prison officials were deliberately indifferent to a substantial risk of harm that there was a pervasive of risk of inmate attacks and in this case in its expression with this attack from inmate taylor there was no prior any relationship with the northern gang and there's nothing played in the complaint that would suggest that there was any relationship between the two groups but there certainly was a relationship that existed not so much w in june when you i mean it's hard to believe some of the things that happened here the guy is helping out with respect to the passing of notes and they put the photocopy allegation is which we have to give at this point the inference is in favor of the plaintiff that nobody came in immediately i mean how can you possibly claim that that that's not a problem and then you say ok fine let's assume that's a problem they get qualified immunity but we know that that could be could be not necessarily is they much that when it goes to trial in that situation well we know from deemed to be a snitch in with the people who are saying that they're going to hurt him it's possible he's going to get hurt well i respectfully disagree that there was a certainty of inmate attack  he could have been injured as a result of being put in proximity of people who were threatening him in the first instance we submit that the claim is sufficient because it doesn't state who there's any made attacks that occur i don't fortunately for any number of reasons but that doesn't mean that prison officials are pressing it that they can they can determine the future and in fact mr best you know was being confined in special housing unit which by regulation is  you i don't think it's a big deal to have them both in the sh you but the put them both in a recreational facility together at the same time within the s e s you that seems to me is asking for trouble but if the court were to look at the actual facts or plaid this trend alleges in the second i'm into complaint it's paragraph eighty six that the assailants threaten him on several occasions and if we just take that allegation several occasions on seven times he he ledges that he was threatened and nothing occurred at least six of those times it's reasonable for the officers to believe that there was no real threat to his safety it could have been a threat but that doesn't mean that there's a substantial  something and further that if the court your i'm going with you where you started your better argument may be qualified immunity but the say that there you know to keep somebody in the same unit as the people he cooperated against and then put him in a lot recreation area with those people doesn't make sense and if that means you look at the eight circuit case the reese case which is somewhat similar to this there is a constitutional violation it's lead to be established or in the court and you don't get qualified immunity well i it's meant that there's this law in this circuit that would point the again we submit that those allegations that the status was in fact revealed are impossible it's hard to believe that we're going to hold for pellets each of them responsible for placing one note in an envelope one copy of and hold them responsible for fifty million dollars for example for not protecting him as the are in the nominees in the are not is i mean that could just be next yes there's not a problem there constitutional and again we submit that the that the plaintiff has to show that each appellant had the subjective element to understand that there was going to be more risk of heart at this early stage of the litigation remember this is where you have to take the allegations as an if there is different to what may happen to him well again the courts have held that there must be this substantial risk and a subjective element of that that claim is that there was this once before we get to the substantial the subjective part i think is as important with respect to the the excessive risk i gather your position has other than twenty four hours a day and that it is just and reasonable to expect that a president can do that other than putting him in the and restrictive housing entire time and my correct about that losing argument but you got the point if you can leave him there you don't have these people coming together or you transfer you know he's in danger he's told people that he's been threatened you've got something has to be done again we submit that those allegations you have to take those allegations  go ahead but again from ashcroft the ball we know that the court can use its just to experience and common sense to resolve these issues to show what facts are actually possible minute it's not looking to what actually possibly happened but what in fact happened in fact he alleges that he was threatened several times and it least six of those seven for instance nothing happened again it was objective we reasonable for the prisoners for the officials in the present to believe that he was as to that point is that both the qualified in your community analysis as well as the strict jurisprudence of the circuit and the supreme court requires that an individual only be held liable for their own individual actions and that this group pleading of seventeen or eight or six pollens is not sufficient to meet that burden to show that there's a constitutional wrong and to show that these individual there's no allegations to show that you six opponents actually placed mr bestiary and the rock yard that they didn't make that mistake to do that and so i think at this stage we need more than just allegations a possibility of recreation you have that right i don't know exactly if that's in the record i can submit to the court at appendix four thirty eight there are the rules and procedures of the special housing unit which state  enough at this point let me ask a question about you say page thirty four of your brief that the allegation of mystery and made that the prison management dependence that weekly to decide whether to keep inmates in this issue and you said you fault him for failing to include allegations of the house weekly meetings is a quote i'll get this to how the weekly meetings reached its decisions example my majority supermajority un in the world was he supposed to know that well that's exactly the case your honor he doesn't know that but that doesn't mean that just because these people these officials met on a weekly basis that they're responsible for constitutional a miss conduct in fact th responsible for keeping him in the as a jew and he's saying that they were deliberately indifferent for keeping him there because of the circumstances that exist that i mean to say that he needs to know at the at this stage what actually how they voted not how you know only they know how they vote i do they develop their business i'd respectfully disagree with the point that they were sponsible the b o p right that's his allegation is they're responsible they meet weekly somebody makes a decision to keep jew right exactly yes and the this management team makes that decision that is not my understanding now ok and it's played specifically in the plane complaint in paragraph of the decision eighteen s h u then it would be the warden or the warns designate and that's specifically played in the complaint the b o p regulation that provides that the warden has discretion to do it more than still a party you're only i mean you're going to still brothers make may come out that's correct we believe that others should come out just on that basis complaint really attributable to warrant leaving no judge number zero mr bestrewn has alleged specifically in the complaint individual liability concerning all of the defendants that remain in the complaint in in both the three hundred nine paragraphs but also significantly and the one hundred ten pages of exhibits that are attached to the complaint each individual is assigned responsibility for their actions these defendants can be generally divided into two groups one is what we've called the prison management defendants those are the ones that you were discussing about earlier who met on a weekly basis to determine whether or not mr bestrewn should remain or not in segregated housing and there are six other individual officers who are unnamed who had responsibility for either failing to intervene because he was they were told repeatedly by mr history and about his risks or specifically because they were either involved in the june thirtieth or the october twelfth allegations against those people who were involved in it all we know about it is that they were involved in we don't know whether or not they were actually one who made the decision only they were involved in the decision we don't know if they there are very specific allegations about which officers placed mr bistro in the recreation yard there are first person accounts from these officers describing exactly what they did the exact time who they were with  relate to the october twelfth incident the exhibits from two thirty to sixty one at the appendix for the june thirtieth incident provide meticulous detail about who did what and when but the broader the second point is a broader point what about paragraph thirty eight in the complaint that talks about these prison management defendants and alleges that ten of them made this collective decision i think judge ambrose question earlier is prescient here in determining it's in that we need to consider whether it ball requires a prison inmates have been in the room when the decision was made to keep them in that measure segregation it does not and i think judgment he your decision in smith and mentor from two thousand and two speaks to the issue of the failure to intervene in that case you wrote that quote we will not immunize such conduct by suggesting that an officer can silently contribute to such a constitutional violation and escape responsibility for it and he also went on to say quote an officer cannot escape  which i think is a significant bar to finding qualified immunity here on these facts but with respect specifically to these these defendants who made this decision there for their failure to intervene to stop either placement  of paragraphs one of four and one of five of the complaint is alleged to have known of the risk that mr bestrewn face while he was in the segregated housing unit with an army sack was in charge of the housing unit during the times that it was his shift in the housing unit it will be six no and that presents all the more reason that it that it applies here and young those at those allegations that summary judgment are sufficient create an issue of fact that should go to a jury here we have to assume that the allegations are true and they fit they did wrong the vast majority the allegations in this complaint are not really contested then the number of days that mr bestrewn was in confinement the incidents of the assaults these are these are cases that this  these are facts that are not contested the individual the principal critique from the defendants are that they are they are pledged to have undertaken conduct or they are they are pledged to have knowledge in a list of people so for jazz your knocks dempsey and acar were told that but simply listing these people in a row doesn't dilute the notice that they're being provided by the pleading and that's exactly what took place and young in can one young and kill and if you look at the footnotes in the beginning of that decision there were i think there were twenty seven defendants in that case and they were because the inmate just like mr this tree and here had daily contact with a wide variety of officers who continued to to provide notice to the district court in this case held that not only did these defendants have notice they quote actually were the direct cause of the violence close quote that's appendix forty four and forty five so it does not line the defendant's mouth to say that they didn't have notice of the pleadings against them when all that's required under it all is that the defendant provide them sufficient allegations that it raises a quote reasonable expectation that discovery will reveal evidence to support the claims that's from the supreme court case matrix initiatives from two count one are insufficient but the tenet wilson is alleged to have prepared an administrative order putting mr pistor in and administer segregation for quote security reasons but he prepared that seven months too late that's it appendix one of four paragraphs ninety the allegation is that he was entitled to that order at the time he was placed incidents entitled to it as a matter of administrative regulation yes and do proper constitutional due process under help human helms the supreme court provided that prisoners are lieutenant dempsey witnessed the october two thousand and six attack and ineffectively deployed tear gas that's at appendix two seventy three is a report i believe authored by him in that and the allegation is that paragraph one hundred nine we all the author  whether prison officials quote did everything they could to protect an inmate so it's inappropriate for the defendants to be making factual disputes about whether or not their failure to intervene at the motion to dismiss stage was was reasonable also know acker also witness the two thousand and six attack and failed to intervene in the allegations against him or paragraph one o nine at appendix ninety seven that in addition to the failure to intervene claims there or that that he failed to intervene to to prevent the punitive placement and admission of segregation that's the same theory that we're pursuing the tenant bounds roger and robinson on and it echoes the but the prison management defendants the ten that we've identified as a group where the ones who are principally responsible for his placement in the ministry of housing so those are the two theories of the three that you mentioned robinson rogers  or out of the minister of segregation but that was not sufficient to preclude those claims from going forward and young and can learn and i think i also would return to the strong language from judge mckeon smith the messenger which is admittedly a different context but certainly speaks to the  given the reasons or an option you can test because he was placed in they got the order seven months later it's that's but the other problem is that it's suggests misconduct that the prison official was backdating a report seven months too late conditions of their confinement and that they're violated if they amount to punishment i mean and for protection i beg your pardon protection for protection placement for protection or for other purposes other than administr oh i think this is the issue about whether or not it was appropriate to place mr history in it mr segregation for his own protection is a question of fact plainly under hamilton and levy we allege that mr said he would have been safer in general population that's a paragraph eighty nine of the complaint and the question about whether or not he would have or whether it was appropriate or whether quote the defendants did everything they could to protect him is a question of fact it's not appropriate for resolution on those and with respect to the what we've talked about this group pleading here you're saying that every single one of the people that are defendants are listed where decision makers they either were decision makers the present management defendants were decision makers for the purpose of placing in a sane and a way they either were decision makers or they fail to intervene and in n h of the four claims we have different theories about who was the decision maker and who failed to intervene in the  claims concerning placement inserted in housing that the decision makers were the ten prison management defendants and i and others who are named in those claims are failed to intervene in the placement and then with respect to the assault six people say we're going to take this action with regard to this in may i people strenuously object to it but there i voted but the decision is made by that group of eleven people and you think you have to the five dissenters who office at the moment that the decision is made in order to to pass the pleading stage where you think not but little with words well know what the court said is that the complaint needs to contain sufficient allegations to state a plausible claim and in cases whole to determine whether it contains sufficient factual merit a state especially plausible claim here the fact that the decision this is unlike it ball where the claim was against the attorney general i well i think they're actually fine to apply to a case like this because they're completely different we're not alleging that the attorney general was involved in the decision to put peter bestrewn in segregated housing were alleging that one levy who met with peter bistro on a regular basis who saw him in the jail every certainly i mean there are there are four claims as i said earlier so with respect to the assault claims you're right that we have not only do we have placement but we also have placement in the cage recreation area and we have failure to intervene but with the other claims punitive placement very specified allegations concerning the placement of these individual decision makers that they were taking the opposite they that they were responsible that they knew peter bestrewn and that they were directly personally involved that's completely different than it ball which involve the attorney general of the united case and that in the quinlan decision the court said the under about it rebutted facts show that young was preyed upon by each succession of inmates and that was documented on several occasions and the court further held that the officials at the prison were knowledgeable about the success of incidents that is far field from what happened here that it is not a pervasive risk of harm that that  was subjected to but rather singular incidents of inmate assaults that don't rise to a level of a subset of due process violation further with respect to the pleading standard vicarious liability as well so this group theory of liability is something that is not contemplated by the court there has to be individual liability on behalf of each a pallet and the fact that they participated in a meeting and may have  but coming back to the situation in the recreation area why isn't as mr wilson suggested young squarely on point with that would have made a difference if he had gone through an individual event and saying the group  officials knew of the success of assaults that a pervasive risk of harm is more than one isolated incident it's a perfect case of connection in the first time around that could be no liability so if the inmate survives the first attack  the defendants need to be on guard because the second time if there is a second he survives for a second time maybe a cause of action and they will get it were alleging a constitutional harm based on a subjective actual a close to an actual knowledge that the officials knew of this pervasive risk and did nothing in this case the suggestion is that isolated risk of harm is not the same as a pervasive risk of harm and that this and that mystery and hasn't played facts a show that the officials in the present actually appreciated the fact that there would be a would be an attack and not just the threat of