yes your honor you made everything i think may please the court this is it appearing on behalf of the appellant's james bond who's the secretary of the department of public safety in corrections and terry lawson who had the unfortunate job of calculating the plaintiff's sentence after he was convicted of violating his probation this is an appeal from the denial over rule twelve motion based on  item unity all of the facts at issue at this time are in the plaintiff's amended complaint and the district judge expressly found that the pleadings contained sufficient facts so overcome the qualified immunity defense therefore d the legal question of the sufficiency of the allegations to overcome qualified immunity is properly before you i was qualified immunity as to both defendants to bradley versus all states which was cited in a hurry for you in which the court held that when the entire contract is before the district court the court of appeal is not prohibited from revealing the provisions that weren't specifically pointed out by the by the parties below just because they didn't point it out and that's the same thing here the entire complaint the four corners of the pla that is properly before you within that within that scope we've got the issue of qualified immunity both defendants are accused of violating the plaintiff's th amendment rights and in addition terri lawson is accused of violating the plaintiff's st amendment rights the facts supporting those three claims are insufficient as a matter of law if we start with the secretary the law is clear that in order to hold the supervisory factional liable for a failure to implement policies or a failure to train and supervise all three indifference the plaintiff has to allege and then show that he had notice of a particular defects in his policy in the department's policies or in the department's training or in h in departments supervision policies no particular defect in any of those areas has been identified instead the plaintiff lodges broad allegations of a quote unquote pattern of over detention which is as pleaded as flawed as the pattern of brady violations that was rejected by the supreme court economy the supreme court and i hope courts applying it to that law consistently say similarity require it the pattern of similarity pattern of similar constitutional violations requires specifically similar constitutional violations and so that's just not here the facts of alleged for example are that the department had a backlog of over detention paperwork there there's no allegation here that the plaintiffs that this plaintiff's paperwork was backlog so how calculations there is no mistake alleged here either the plaintiff specifically alleges that terry lawson calculated his sentence correctly and then intentionally withheld jail credit and so there is no mistake so hallow this falls into that other set of errors in time computations it doesn't  therefore the plaintiff has not pleaded a pattern of somewhere constitutional violations sufficient to support a deliberate indifference claim against secretarial boff in addition the plaintiff doesn't plead what secretar labonte did or did not do in response to that now that the only issue that the district court said wasn't raised below and it wasn't raised here either so but that is the nd part of the qualified immunity defense it was error for the dish of court to deny qualified immunity to secretary labonte without fully considering the two prongs of the analysis and instead of what she should have done is what she said she would deal in the standard of her views she cited which was that if additional facts were necessary such as the facts regarding the reasonableness of the response to the alleged knowledge  that she would order a shell to reply or response to qualified immunity where additional facts focused specifically on the conduct of the defendant who's accused of violating the constitution would be played it and that that wasn't done either instead the district court just denied it qualified immunity flat out to the secretary subjected him to discovery and trial based on a very very fatally pleaded and very that the facts that are pleaded don't support the claims against them so you've got a series of conclusory allegations starting with the fundamental conclus that he was in prison in arkansas that he's claiming he was entitled to credit for and that's not pleaded or it is in which case the math doesn't add up in which case we can't know what was it that terry since withheld all of his arkansas credit or was it only some of it and i mean you know the how do we as the defense analyze and defend the claim and the reasonableness of terry lawson's actions if we don't know exactly what he did because based on the phone call with plaintiff's counsel that in the pleading terry lawson said he gave a nine hundred dollars something days of credit the pla says that didn't include ringback any credit from arkansas right and it's rule twelve so we have to accept the plainest version is as true that that didn't that he was entitled to more time on the arkansas i mean you might be right that this was done exactly by the book but it just i don't know how we determined that the pleading state i mean they allege that he didn't get the arkansas credit that was told to the lawyer in a phone call that the date kept moving around because they were at st giving him credit and then taking it away so why isn't that at least plausible and then discovery will flush out whether you're right or the plaintiffs are right about the time well this phone call actually said that he did get arkansas credit  graph forty three of the complaints on the phone mr lawson confirm that mr hicks was only getting nine hundred and four days of joe credit next paragraph forty four that number corresponds only to pretrial detention in there i mean the plaintiff knows when he was in jail and that he didn't plead it and so you know what's going to happen so we did discovery with terry lawson and terry lawson explains where all the jail credit came from and what all they had to do know and if it's proven that it's false that the plaintiff was given as it turns out way more jail time and if you try to get proven i mean summary judgment and trial is about what's proven rule twelve is about what's what's aleck's right to just and how he stated the rule twelve that sure he's saying he didn't get arkansas credit and in fact you know they kept moving this date around and giving it not giving it and but we just don't we just don't buy that that's what we should say you know what you should say next is is what he did a violation of clearly established law in order to deny him qualified immunity there been pled would that be an operative facts to demonstrate the point that you just made partially yes and it ended dies that and that was the fact that the district judge relied on to deny lawson qualified immunity the problem with that allegation is that nobody messed with them messed i'm doing air quotes nobody messed with them until  after he had done three of those time cops and that's why when we got it to the st amendment the law requires a pleading of a chronology of events and there were four time computations and to say it st amendment protected activities the ark was filed to afterwards so that's out but it a motion to correct the sentence was filed before the last time caught which was granted and then the sentence was clarified or whatever the new sentencing record was sent to lawson and the sentence was recalculated at that time but those st story time was not were not done in retaliation for anything according to the facts in the complaint and so you know there's there's that the other question is if you look at what pleaded policy of the secretary and so you know with that in mind what we would suggest is that this court reverse that denial of qualified immunity a the secretary and vacate the denial the denial of qualified immunity as to terri loss and and remand for additional fact finding with regard to what terri lawson day so that hayes qualified as you heard this case is about how the state of louisiana is holding more than two thousand people per year every year past their release dates for an average of about a month and a half each and how appellee ellis hicks was one of them you heard a arguments but they are wrong for at least three reasons st because defendants waive the arguments that they're making here on appeal nd because the allegations in the complaint are more than sufficient to state a plausible claim and rd because this case and this appeal reflects a disrespect for judicial authority and judicial resources i'll take st the issue of waiver there is no overlap whatsoever between the arguments opponents made in the district court and the arguments they're making here didn't try to make those arguments in their motion to dismiss proof they didn't file a reply brief they didn't file a motion for reconsideration and so the st time that the these arguments were heard by us or by any court was an opponent's opening brief on appeal that's not fair to the district court judge who never had the opportunity to consider and accept or reject the arguments and it's a bait and switch to plaintiffs to make entirely new arguments in a new higher court if the arguments about the sufficiency of the complaint had been made but lo perhaps the trial court would have agreed and the complaint could have been amended  to clarify but those arguments were never made there now it's true that there is a narrow set of situations where the waived arguments can be appealed when for example they turn on a pure question of law and would be a miscarriage of justice not to hear them but that's definitely not the case here because this is not the last time that defendants can raise the issue of qualified immunity as ms glaser asked her fundamental ask here is for it to be remanded for further factual proceedings factual investigation to determine whether or not qualified immunity is appropriate but of course that's exactly what would happen in the absence of this appeal we would have continued with discovery and the issue of qualified of community could been raised on a motion for summary judgment so the very thing that appellant's are asking this court to order is exactly what would have happened if they didn't file this appeal at all this appeal is fundamentally unnecessary for and again they could also raise the issue of qualified immunity at trial if it hasn't been raised by that point  nd the allegations in the complaint are more than sufficient to raise a plausible claim for relief but the core facts are the ones that were discussed that mr hicks sentence was complete on february th twenty eight team and that he was actually released two months later on april th for an over to tension period of sixty days and as your honour's noted there was the functional reason why he was held past his release date which is that he wasn't getting the judge ordered credit from arkansas and in addition what's makes his fact of over detention even more plausible is the fact that once mr lawson's conduct was reported to the department of corrections general counsel hicks was released five days later well before mr lawson had finally calculated as his release date to be so that that lends the plausibility even if you take away everything else you've got at the core of  the date we think he was supposed to be released the day he was actually released enough surrounding facts to make it plausible that he was over detained so look at marie you agree that every guard love block you need to we have three pages of the pattern and practice allocations which detail secretary le blanc's knowledge starting in two thousand and twelve so in two thousand and twelve as alleged in the complaint there was what we what was called investigation which found a widespread pattern of over detention in louisiana it found that two thousand two hundred and fifty two dollars inmates in a single year had been held past their release date for an average of seventy one seven days evidence to suggest that they were those what intentional or well they just grossly competent negligent in computing these dates and yes the difference i think a material difference for purposes of your writing is get to the d o c and then took the g o c quite a long time to process them that was one issue there was the backlog issue there were some overt detentions that weren't totally explained but that at least puts secretary lip lock on notice in two thousand and twelve that they got a major problem and in fact he testified that it was a big problem and then the failure to secure those problems is what accounts for the deliberate indifference so in two thousand and seventeen there was another internal investigation that found  up for me the larger question is whether or not he was making some effort or whether or not they were reducing the backlog of cases with another reducing the number of cases where people were being over what do you say today yes judge scripts i agree with you i think that is going to be the question for discovery and them for the trier of fact to determine was the efforts that were undertaken by secretary look walk to correct this problem over the seven years after he was notified a bit enough to eliminate deliberate indifference or was the failure of him to take any action as we allege the failure to you know now i'm going outside the complaint but there will be quite a lot that would be put forward on both sides by the plaintiff by the defendant to argue that the pattern hans go ahead if you knew about it and he did nothing in essence yes and the problem continued your after year and in fact in some ways got worse the number of people over detained by two thousand and nineteen was substantially larger on average than it was in two thousand and twelve and we also know that  that isn't that evidence you have some extensive allegations has been mentioned about the negligence and maybe even recklessness how does that match the allegation here are due is intentional retaliation against an inmate for trying to do is through his rights it just seems like a different problem i think there are complaint in essence argues in the alternative two explanations for why for m conduct one is that this was intentional retaliation for the protective for some in the conduct which is not just a r p he filed and not just as pleadings in court but also the advocacy on behalf of mr hicks by his friends to try and fix it so that's one possible explanation for mr lawson's conduct another possible explanation which is suggested by his statement in the recorded phone call is that this is the way mr lawson always does things that he does fundamentally does not believe that a judge has the authority to tell him whether or not to give this jail credit he said quote the judges have no say whatsoever in us applying our time comp laws and that the judge's orders quote are not enforced on our side of the street and we do the math and so that's an indication that this was not just a one off but was a was the way he typically did things and there's some tension between those and discovery will determine which which of those it was or some hybrid not giving inmates credit that judges say they're doing it to me again even that's different than well there's just a backlog of these cases are getting attention and it seems to me that this this matter was getting attention it was getting attention in a way your client didn't white because i think he started off with a better date then they they were they extended it i mean it was kept moving around it seems to me that was it was getting a lot of attention just in a way that benefit you aren't y policy i mean it may be a policy we haven't done discovery to find out it is at least a suggestion that it's his practice to do so that he fundamentally believes that if a judge orders of it if it doesn't comply with mr lawson's reading of the law that it should be rejected and now that is exactly the opposite of the way it's supposed to happen the case that cited on the st page of our complaint which is body a louisiana department of corrections a justice exactly this factual scenario and says if a judge orders the jail credit regardless of whether the d o c thinks it's right or wrong the t o c has to implement it as the judge ordered and so mr lawson just isn't following the law and it appears that is his typical practice at least in the way he described it and so that's enough to at least show a plausible pattern as alleged that can constitute a pattern sufficient perhaps to hold a superior on a notice i mean does discovery will determine how widespread was this to extend beyond mr lawson how far up the food chain it goes but what we do know is one we have an extremely widespread pattern of over detention and number two we have a  official who is saying that his practice is not to give this jail credit which could explain a chunk of the large pattern of over detention that is observed and alleged and admitted i think it's also relevant to note that there isn't actually a dispute about when mr hicks should have been released so defendants argue vigorously that there isn't sufficient factual allegations to support the feb th number but that isn't actually in dispute as we know in our brief it was admitted in a request for admission and it was also admitted by all defendants in their response the summary judgment  which it seems that they do from their missions then it's not clear what this appeal accomplishes because they understand what plaintiffs claim is against them and they can defend against it if however they disagree and they think that february t wrong then they're certainly welcome in the trial court to make that argument to move to withdraw their admission and to put forward the evidence for why they think a different date is correct but either way this appeal does not solve the problem it doesn't actually provide them with the information they need to defend the case and it and of course we can't resolve that factual question here went without discovery or a factual dispute let me ask you on that on the  correct subject to that objection i agree however they did not raise any objection in their response to the the material facts in the response to the motion for summary judgment page four hundred and fifty the right i've got it right the department of public safety and corrections is a party to the case but is not a party to this appeal but the response to the material facts was on behalf of all defendants including mr lawson and secretary will block and i think it's also worth noting that secretarial block is sued in both his official and his individual capacity and so he he he is identical to the department of public safety and corrections in that capacity  and so it appears from the record that this is not actually a disputed issue and so it raises the question of what is the purpose of this appeal if it's to tinker with the complaint to to further substantiate something that the parties don't even disagree about so that's why it's really a red herring whether or not there's lots of math in the complaint it's a bait and switch that this court has has in the past said it is impermissible for example in leverett v louisville ladder said quote the court will not allow a party to raise an issue for the st time on appeal merely because a party believes that he might prevail if given the opportunity to try a case again on a different theory and that's what's happening here below what defendants argued was sovereign immunity and the heck heck the humphrey doctrine on appeal there are going completely different arguments they are arguing about whether he was perhaps under detained t argue about the pattern of practice argument but st a member of television that doesn't appear will appear at all in their motion to dismiss brief the words pattern practice st amendment retaliation none of those words appeal appear in their briefing below and so it is a waste of this court's resources to to hear an appeal that fundamentally does not resolve a question that is disputed by the parties that is based entirely on novel issues not raised to love and for that in the in the motion that the defendants filed you know the argument about how poorly rated the complaint was to support a pattern and practice pattern of practice whatever claim against the secretary was not in the motion however it was very very clearly in the district judge's opinion and it we were to not allow a dependent to appeal the denial qualified immunity that such a willing made ostensibly to was sponsored by the court would be completely insulated from collateral or viewed by this court in violation of decades of precedent that says you do it all jurisdiction to review such a denial of and it is a legal question just as the submissions see of the evidence to support the knowledge part of the deliberate indifference analysis whether that evidence is submission is also a legal question for the supreme brady violations are not sufficient to support a claim against a supervisor and that's what we have here there is no allegation whatsoever that secretary will want newest similar constitutional violations to