which is where being performed stated that the the there to be more privacy for individuals yeah and that just was not this is more in the implementation is that your the implementation wasn't following the directive correct because the director for that that's no reason to deny qualified immunity to the war absolutely your honor and the directive specified that the searches were to take place in private on a sanitary chair and the only individuals to be viewing the search were the individual conducting the search so yes anyone any individual officer who may have deal   plaints that say that wasn't this that wasn't the actual story that they were subjected to the derision of nearby prisoners who are watching but that's the great that's the your honor regarding the regarding the outgoing practice again i don't judge catholics questioned whether or not this court has jurisdiction i would just state that the plaintiff has alleged that there are five hundred individuals who have claimed that the practice is ongoing the document that they've attached to support those contentions to their response to our motion to dismiss i would state should not have been considered in was actually addressed by the district court as unsure of what that document actually was it was simply a list of names of individual prisoners who apparently filed grievances but there were no dates attached to those names there were no grievance identifier numbers regarding their complaints and their complaints weren't even listed on the form so i would say that was something that the court and this court should not consider as evidence that this is ongoing and if the if the practice is ongoing the wrong individuals have been sued here and the cause of action is against different individuals great we'll hear from that's largely why we only were able to attach the names and prisoner numbers because we're still to this day collecting grievances no discoveries can happen oh is that how this comes to us you filed your complaint they filed a motion to dismiss rect and so there's been no eventually as as it was morphed into a summary judgment yes your honor i do specifically recall that the defendants did raise the eleventh amendment and we had the discussion on the record between individual and official liability are you satisfied with i know i'm not and the reason is this that if so then you maintain your action against the warden personally yesterday and now so let's talk about that is if the you heard the discussion i think we are given to understand that the practice is different then the guidelines absolutely correct the complaints are about activity that is outside the guidelines established by the warden in part or what oh all right so so the part that is outside the activity established by the guidelines in the the war you would agree that that doesn't establish liability for the warden that she would be qualified have enjoyed qualified immunity from that i can't agree with that your honor because we have provided not only the list of in the names who have supplied gri but two actual affidavits from the two named plaintiffs who testified that the practice was ongoing they were subject to the practice after it was purportedly terminated about the practice as as specified within the higher interest they are complaining about the practice i'm taking it that there were violations by the guards of the policy established and that is so is there or do you maintain claims by inmates about the policy as properly implemented the policy on its face well know they say i wouldn't the policy says this but it's really not truly the i don't know what they could say about the war and that how is the warden implicated here herself is your question the word herself has  responsibility to establish promulgated policies and in this case the policy that she decided to implement two thousand and nine on the justification that she had given was that they became aware that women ma conceal contraband in their vaginas ok i and we are we not past that because that was discontinued the chair we are not past that because it has not been discontinued and that's why we're seeking work in required a more sanitary process after two thousand i believe in two thousand and eleven when she received grievances and she became aware that people were complaining ok and i mean i guess just facts i'm trying to understand so after two thousand and eleven sure wires the paper or the hand sanitizer correct  so that's one period of time before then i thought the record was that she didn't require either of those things originally she did not that's correct the policy did not and then it was amended and then it was ultimately on paper said there's another written document somewhere that did require those things you know the policy was modified before it was eliminated first it said sit on the chair and be subject to this invasive search then it's included no requirements for correct that was later on implemented in the policy but not in practice and then the policy hew responsible for the situation where it's appropriate policy but not practiced right and that's why i'm saying aren't those circumstances entitle her to call of she she has no she enjoys qualified immunity in those we agree about that at least based on the facts whether or not the policy was reasonably related to legitimate political interest the issue these types of searches generally are permissible but the manner of this one namely the chair business is the problem absolutely and it sounds like but you'd sounds like we just said it's challenging the first part which went against you that warren liable before two thousand and eleven but i don't i mean i think we're trying to understand are you arguing she has any liability for after two thousand and eleven because the policy yes she changed it to be what it should be apparently she did  received personally the grievances after the date where she illogically terminated practice that's why we're here asking for the receiving of the grieving and the grievances is where she becomes personally liable she becomes personally a winner and she signs off and says too late in time you can't bring it but she knew that people were complaining that was ongoing so i would you have us then determine whether your claim goes forward against ms warren on the basis of the complaint rather than on a genuine issue material fact determination but it depends are you going to look at it under twenty six or fifty six that's what i'm asking you what do you think we should look at i think because of the way the defendants have couched it you need to look at it under a roof that the six that there are disputed material defense argued that there was no clearly established right to be pretty from the type of circuit search that was here and i believe your honor also indicated that you know there's case law that say you can do strip search it's fine however there is a clearly established right not to be interest i wanted to make a quick note that the u s supreme court has croft versus al killed one thirty one supreme court twenty seventy four at two eighty three held that there is no requirement that you have a case directly on point for there to be clearly established law of a constitutional right so when the issues that we have here today is whether the policy complained of may be reasonably related to a legitimate in a logical interest and whether the manner in which the policy was carried out was reasonable goes to consider for particular factors the scope the manner in which is was conducted the justification for initiating the policy and the place the spread libya slash chair portion of the strip search was in fact the corrections officers and the investigation done by the warden revealed that that portion of the strip search did not yield discovery of any contraband none that was not affected one hundred percent of the guard said we can do it there are lots of i'm trying to recall might have been in florida i don't remember with state that's the way i think there can never ever iran or if you can direct me to that portion that you're thinking about because i think they said for inspection right well that that's ok and they even said if there's no suspicion that's ok if it's rationally or reasonably related to the legitimate interest in this case number one obviously we're talking about  inmates here it is their blessing it as a legitimate interest we were two steps beyond where you're arguing that you have to go back to square one and this is the logically established that those kinds of searches are justified yes it's ok to do a visual inspection all it's detailed here in the case ok and how is it you just read it spread the buttocks do all that right but they didn't say sit on a chair and spread your levy and expose it to other people ok now that's the that's the key part thats different your your contention is that it's the too many people watching but that's not part of the policy as a council accounts the policy speaks to privacy from others viewing it you seem exposed in front of other in me this argument was treated how the this argument about the personal where miss over coming the policy that would be protective by judge borman you're asking me the right how did he view back did he think that that was a sufficient to have to have her be liable personally the cheap observed or was given complaints unfortunately i cannot recall if in his opinion and was looking at this morning last night spoke to her personal knowledge i think that's almost already true that's how she gets to be have liability and not qualify qualify plea imune is because she has some personal involvement we keep looking for that her personal involvement was a stamp wishing and promulgating the policy when there was already a policy in place that served a legitimate logical interest and she made this addition were arguing which is purely to harass and purely punitive nature and then when the policy was allegedly terminated or arguing it still ongoing today that's i think what the two key questions are and i think the jury questions whether under the circumstances a search all of that invasive magnitude was reasonable under the circumstances and whether it was performed pursuant to a legitimate interest did they do it because they were really looking for contraband who really needed that extra step to look for contraband or was there something else and i think that's the key to this case we have the case of williams versus city of cleveland a two thousand and fourteen six thirty case that specifically says a search has to be reasonably related to the legitimate and and they said the defendant said at oral argument we did it because we were aware that women can conceal things in our bodies will and awareness doesn't equal an articulable suspicion the new procedure that was implemented was duplicative and gratuitous it was unnecessary it was humiliating and it was a violation of the limited fourth amendment privacy rights that incarcerated individuals enjoy on the facts presented especially a strips strip search may be found to be unreasonable in the manner in which it was conducted and may also be found to be not reasonably related to illegitimate and therefore we're asking that as honorable carol affirm judge borman remand back for proceedings consistent if you thank you  december two thousand and reaches of the policy would be one way to think of it yes yes after due to the policy change in two thousand and eleven plaintiff's counsel has stated that the wording should have been aware of complaints and grievances filed actually said the warden was aware she said the warden was aware your honor i don't believe that the affidavit submitted in support of the in support of the plaintiff's argument by the two name of support this contention the plaintiff ab kumi states that she filed a grievance in march of two thousand and eleven regarding the searches now that would have been before the policy was changed and ms salem i believe just makes she states she filed a grievance i don't recall the date but it was before the change in policy and then she stated that the that the chair based search continued post two thousand december two thousand and eleven but she did not specify in her affidavit that she specifically warned the warden or filed any sort of grievance that she was still being subject to the policy so i would dispute the warden's knowledge of any at this point of any and going problems we related to that policy would you go back to the eleventh amendment whether big the the proper pleading of sovereign immunity yes i mean i my recollection  of this record is that the defendants did raise that at the district court level i know we argued it in our our brief on appeal we argued that perspective relief is not available to the pla mean you know i believe the issue has been preserved and with that said i would just i would just remind the court i believe this is a situation where the grievance process and words and the problems are still occurring those now those complaints should be against individual officers who are obviously at violating policy thank you every matter and we will take