jury verdict on evidentiary grounds and that's what happened here we're here to argue that the jury had an evidentiary basis to find borden kyra's knew that the plane that was exercising in full restraints were a period of six months this court should therefore reinstate the verdict complaints favor the district court overturned a verdict on the basis of the words personal knowledge we would suggest that the evidence supports the jury's verdict the following reasons number one and in his oversight of the facility he paid particular emphasis on new inmates who received initial phase one classifications that would be the plaintiffs so under former vs renton we can draw from circumstantial evidence in the term in whether a defendant has personal knowledge of a constitutional violation and the birth jury here had a factual basis to reach a verdict and taper plain that there was a case decided by this court this court found in reversing dismissal of the case that the defendants could have known about the lack of exercise at the jail in part because of their inherent awareness of conditions at the testified that he only did push ups and sit ups in the jail he couldn't do anything more than that because he didn't want to antagonize the other inmates he had hip dysplasia which also limited his in cell exercise so the jury was able to find based on the jury charge which had a five factor test from williams versus court cases called williams from judge sheindlin one of the factors can be the availability of in cell exercise the jury was able to credit the plaintiff testimony that he couldn't exercise enough in his own cell and defy factors in the jury charge also included the availability of out of doors exercise and the jury was was able to give that particular element special consideration in its deliberations and this court and big life in a case specifically pointed out that there's an th amendment right to out of cell exercise so even if out of cell a bail ability for exercise is not the only factor the jury was allowed based on the multipart test weighing the evidence that that was crucial in ruling in the pla there was a basis for the jury to find that the jail had feasible options to allow plaintiff to exercise without restraints it was testimony that plaintiff was offered the opportunity to transfer  the ones which get exercise out of restraints and there was a dispute about this but the plaintiff said yes he requested it and no he didn't turn down the offer what it was made to him there was also testimony about options that were available to the jail such as adding an internal chaining door with traps to the recreation area so you can rent safely and in traps the main door in the stories individual recreational enclosures and the recreation yards these are options but the jail this court setting gripen for cost considerations cannot be a factor when you're dealing with constitutional rights such as these tell me let me let me let me ask you if i could in your brief  that we shouldn't raise those issues but should let the district court resolve them on remand assuming argue when we agree with you on the personal involvement so the question is which court should discard qualified immunity i've seen it go both ways in this court and the objective element in other words why not give a district court pertaining to resolve a lot of romance sure i would argue the same arguments are making here that this court has settled laws going back decades that out of doors exercise is necessary under the th amendment and courts are still saying and i'm confident that whatever court takes up that issue we will prevail on the qualified immunity question so go ahead go ahead finish your question  this well i started mcrae versus live which talks about circumstantial evidence and the inherent awareness that prison in miniature does have a facility that's number one farmer versus wren and when the conditions are appendix it could be up to two years and it is overflow you don't know how long he can stay and you can't be certain that an overflow inmate like the plaintiff is going to be in the three days for two weeks you know they could be there much longer so  transcript and correctly held that wouldn't hear us did not know that the plaintiff was recreating in restraints until march th two thousand and eleven and he responded by approving the plaintiff's move to phase two where exercise restrictions gang members a s phase one inmates were considered the most dangerous the facility was at full capacity over four hundred dollars inmates and it isn't that volatile environment and time range of heroes was warden  six housing units one east one west to east to west three east and three s three west the ones with the most restrictive units and the three is the least restrictive unit in the facilities and a essays one inmates were primarily house in one east and one west what he's going one at west had recreation yards that were divided into three secure individual recreation areas those areas had trap doors that permitted removal of hand and  was required for out of self movement of a a state want to mate based on the recent history of violence however because the one unit in northern iraq maximum capacity some incoming a f phase one inmates were designated as overflow the practice that was that overflow was a phase one inmates would be temporarily housed in three east or three west until space became available uncontested that this was meant to be a very tempora up to two weeks or something of that sort and so they would rotate that's how they dealt with the overflow they would rotate people over to three in the back in two weeks and then somebody else would come out and they do that and any given time  cycle back over to the ones as soon as space became available and that was a conscious like a conscious products now there's no dispute that that policy was not implemented with respect ed was that right that that that that that's the that's the test right that is the test ok so so that we then we need to look at his knowledge which i think is the only thing that's really going to test your knowledge of what what the attention to the job and and and i and i toured the place twice a week that was his his answers no way of knowing no i get a way of knowing and this was it and then the other thing because i have because i to work twice a week that is the opportunity for me to talk to folks and and get information if someone has any issues and the plaintiff acknowledged that he did not of another boat because the standard is one of recklessness not merely negligence and what what hiro's testified was that he had access to video did not testify that he had carefully reviewed video  videos or news of the defendant was there that testimony before the jury that the jury would be free we have to assume that the jury rejected there was no evidence that he saw the video in the phrase  ever the testimony was that there are video cameras throughout the facility and that he has access to this and that's the expense and i have that right i thought that was testimony that he that he reviewed the goodyears that that was part of his cruel or unusual and that if he and his assertions that he didn't know about a ring hollow but what the but the district court in saying that there was no evidence doesn't even mention that fact it is your part mischaracter facility and the way he knows that he's giving us the way he knows that is he has a grievance process and he has the tourists and that's how he ascertained what's happening he's able to talk you think that in a jury could not make a conclusion that he knew that they that he knew or that he should have known that this that this was the way mr edwards was recreating for six months your honor i think it's important to look also temporarily as what was going on here at the time the standard is that there's no evidence to support the jury's finding and i just asked you now given what you've just told me is that your are you telling me that a jury could not rationally conclude that kira actually did know that could go to that he did or that he should have know that this fellow was restrained in this way for six and a half months want to recreate your honor i do think there is not sufficient evidence to establish that heroes was criminal i was was reckless  aware that edwards was being recreated and recreated in restraints for six months couldn't that is not enough i mean it's it's the province of the jury to draw a reasonable inferences from circumstantial evidence it's not what we think if we were the jury but it's this is why isn't it the province of the jury because the evidence as presented again was was was simply deprivation from the time the complaint that being a time when he knew carol's knew and we got some taste of it favorable to carol's in that regard that's for certain but but you know if the time period of six months also held in the plaintiff's favor on the issue of qualified immunity  the the issue of how to sell exercise has been reviewed and and no court has said outright that there is a  right to out of cell exercise it has to be viewed in the context of the factors set forth in the williams court case and i think that's how the just record looked at that i believe the issue the issue of of out of out of cell exercise was a footnote in that williams case describing the law in other circuits so up until that had not been established in just records an opportunity for in cell exercise or other out of cell exercise and the nature of the deprivation for example in the marine mccrae case that was obvious to anyone walking through a facility and it was in the context of dispense it was obvious to anyone that what was happening there was they weren't removing snow at all from the from the recreation yard such that the for the different entire winter so yeah status when when there is unit manager and a deputy warden who are in charge of managing that that program and in this case it would be the unit manager i do you respond to the argument  that issue certainly it was in a different posture it was in the context of a a summary judgment in the decision itself expressly says that with me one moment that were we do not reach several questions the very last paragraph of the decision talks about we're not reaching some of the factual questions at that point at this point the court has a full record and from which to make a decision and under that full record and given the facts that citing the griping or case the final paragraph of edwards doesn't talk about the other factors that were actually part of the jury charge in this case the jury charge in this case on state of mind is page five  by review and it looks like it's drawn from farmer versus reading about circumstantial evidence things of that nature as well as deliberate indifference insemination plaintiff's counsel at page six