or general risk to another group of prisoners that prison official must respond they must act to quell the risk here of telling william a whole isolated substantial evidence in opposition to defendants motion for summary judgment that evidence confirmed that the a correctional facility of segregating concentrating and isolating known gang members into residential wards had the effect of exposing all non commonly housed gang members to an increased threat of violence he can recover concede that there is ninth circuit law that says that the transfer or parole of a prisoner will move his claims for injunctive relief but that rule is not uniformly held in the ninth circuit and is not human uniformly held in the sr circuit armstrong so there is a conflict in this court's jurisprudence about whether it is an absolute rule or not we suggest that there is a way to carve a fine line and make a definite rule within the court which is to look at the right and vote the cases as i read lions for city in los angeles they hold it was moot because in order for mr lyons to see conjecture of relief against the use of the trial called in that case he had to do something that was going to draw the police attention to them and that was within that in armstrong this court also recognize that a return to prison based on parole doesn't necessarily require a prisoner to do something bad and indeed if you look at the supplemental excerpt of record that the state submitted as to the terms of mr  parole he can be returned to prison for conduct that is not criminal and for which he is ignorant he can be returned to prison for not knowing but consorting with other individuals who were gang point which is the qualified immunity argument against the defendants in their individual capacity as i see it the district court committed for errors in granting the defendants in their individual capacity summary judgment the first is a confusion of the right issue a right what mr hole i'd tried to invoke was his right to be free from a known threat of violence and here the evidence that he submitted suggested that the policy it hollow of segregating on gang members  segregating gang members and then commonly housing them with nine gang members exposed them to an increased threat of violence that right at issue the deliberate indifference right and the general risk of violence to an identifiable group has been confirmed by this court  it been considered would have strengthened his case against summary judgment he wasn't that point of course pro se correct and this may not be something that you can answer but represented at the district court either by your firm or by someone else i know that the terms of the pro bono appointment in this court requires are continuing through the appeal i don't know if michael my firm would be but that said if mr a whole life who is now out on parole and has greater access to attorneys and was presented with a case where this court reversed a grant of summary judgment it would be far more likely that he could find counsel private or in terms of my question i'm not contemplating a reversal so much as a romance which may or may not affect the bail ability of counsel and so on but at this point it would be a process of prediction and i am sure no i know you i think you have as well as you could  consider all of the evidence and mr alike did some it substantial evidence and there is at least some sense as we submitted in our request for judicial notice that there may be additional evidence that could be submitted and before the district court you had some point alan i think you're probably right on that one and i'm more concerned about the other one but as to that your honor i think that under berg and as confirmed by the leader there has to be a particular lies showing as to each defendant now that trial showing not necessarily a summary judgment showing and we would submit your honor that under merino that the ninety nine of the ten defendants have submitted no evidence and that's the burden never shifted to mr a whole like to come forward with any evidence on summary judgment standard but ultimately a trial mr a whole i would have to confirm that each of the defendants he sues had knowledge and that they remain indifferent to the risk after knowledge it does bear on some  defendant knew there were problems with the policy as opposed to do they have to have knowledge to your plaintiff is in trouble i think you're out of the question and that's actually one of the other errors that the district court made there is no specific notice requirement when the risk is general so all similarly situated on gang members who are exposed to a threat confirms allied with the moving defendants and fourth errored in disregarding the evidence submitted by mr a whole like turning now to the sovereign immunity question this court has confirmed that when a state invokes the federal court it waits offered immunity here we would the motion and in the complaint that it filed as a third party plaintiff against the defendants listed that each of the defendants as parties who are bringing the motion and were filing the complaint with respect to how they participated against the party who has sued it's different from asserting some sort of offset against the party who it is rather premised upon and as any rule fourteen third party complained then as soon as if i am liable rule fourteen motion does i mean my defenses but if i lose and if i'm held liable them that's correct your honor but recall what the sovereign immunity is sovereign immunity is a defense to jurisdiction from the court that is susceptible to personal waiver the jurisdiction of the court is the right of the court to decide anything act here the state is saying i'd like to decide certain facts at some point and the fact that it raises it brings its rule its third party complaint before it moves for summary judgment suggests at that very time it's and i'm a veiling myself of the federal jurisdiction and i'm submitting facts a transaction for decision if you don't then follow the summary judgment motion and you stop there and let's say that the state raised sovereign immunity now and the court granted just on qualified immunity grounds it couldn't then complain of a waiver of sovereign immunity so you have to look at the fact hasn't vote the federal court for decision of its substantive rights that's the same thing here in the third party complaint and then you work backwards to enter a last hour that says it's a transactional analysis what are the facts that are submitted for decision and here are the exact pardon under the summary judgment i think we're having a meeting of the minds about what we're talking about are you saying that in those circumstances the district judge was justified and these statements are documents f you have gang members who are dominating certain units and because you're trying to separate gangs the only people you put in with the gang members are people who aren't members of and the non gang members are and the injured i mean they're told this numerous times  is i think you're reading those things a little bit too finally i think you read those things and it's perfectly apparent what's being said now it may or may not be sufficient to prove liability at the level of deliberate indifference those documents are saying we are in danger because we are non gang members put into a unit that is dominated by a gang that's what they say  and the prison officials could say well yeah but our other choices are worse or the danger to us not so great as we need to worry about i mean they may have various responses but what they're being told is pretty clean but i think i would still dominant they are in particular danger from gang members because of the dominance of the gang i don't i respect even say that i respectfully disagree that any that that's what the i don't think that there's evidence provide specific facts that even that potentially you could read the statements in many different ways i don't think that under the summary judgment standard they provide the specific facts that you that the district judge even considered the evidence that mr hall i sought to proffer and i would be very uncomfortable in evaluating the evidence before the district judge has had a chance to do  wanted to preserve it to protect itself the state had not yet been dismissed from the last and also it was under a deadline it was given a deadline the dependence for give i'm sorry to interrupt  the majority of my time discussing our agreement that deliberate indifference liability is a subjective test but let me return to that in a moment and instead answer a question that was posed at the end regarding the state's  federal court's jurisdiction of they'll themself and we've sovereign immunity so whatever the state wanted to do whatever it intended to do the fact is that the state itself in paragraph one of the complaint says i the state am coming before you the federal court asking for you to decide a specific legal question i'm of the ailing myself and that question extends to the transaction the facts underlying that dispute and in so doing it waive sovereign that subjective knowledge can be proven by circumstantial evidence here or circumstantial evidence is correspondence between defendant or excuse me between defendants and various prisoners addressing the very issue i underlin right thank you thank both sides for their useful argument and the case is now submitted for decision in a journalist for the day and such hugs to you inside