good morning your honor brian burgess on behalf of michael hayes i'd like to reserve three minutes for a bottle right now please the court at its core this was a case about competing stories on one side the defendants insisted that they had no reason to believe that sex offenders like michael fte hayes based any particular rests in any of the i c c spots and they asserted that the always erred on the side of safety when dealing with prisoner safety concerns on the other side michael hayes presented evidence and testimony that in fact sex offenders were repeatedly and systematically targeted in attacked within the i c c so called gladiator pods that this fact was well known by prison officials in these pods including the defendants brian dosar and justin acosta and the prison officials did nothing about it as a pro se inmate mr hayes was always going to face an uphill climb to convince a jury to believe his account rather than the account of his jailers but a series of district court errors made that climb even steeper and ultimately compromise his case jury did make sense there was a special verdict and i think he lost at the first question right on whether there is an objective restaurant or farmer that's correct so how does that make your rock that you're pushing up the hill more could you really ever show that it would be a different result sure i'll start with those when acosta we were making an argument that there evidentiary errors that this evidence was admissible and that it affected the jury's verdict and it could have affected how it assessed both the object of risk and the subject of products so we that we need to show that the evidence that was excluded could have made a difference on how the jury would have evaluated that first prong and might have come out to a different conclusion shirt i think the evidence we think again because this was a credibility fight and because it was an issue of whose stories the jury going to believe evidence that comes in and suggests contrary to the defendant's representation that we always err on the side of caution it would have been career ending to ignore prisoner safety issues our staff we in our staff always reacted with alacrity to these issues you have concern forms coming in contemporaneous to i'm going threats in the i c c showing that's not what happened and if that anything contained in those forms that was testified so the attacks were testified to what we think the concern forms would do is because it was a you know if we think if the jury believed mr hasan in the i mean in terms of i was responding to whether the evidence was harmless whether there was harmless error and we think that this evidence provided further support to show why to believe one person one side story rather than the other that it's the forms that you know they tried to cast doubt on the sex offender story they suggested that they had no reason to believe and by inference that there was no real risk going on at these pods at the time but obviously the forms that were i think one form didn't come in right that was after the one form came in because there was no objection to it ok so one form could come in and the ones that were kept out were after mr hayes is incident so and the were other inmates cracked yes the reforms but i mean why couldn't you make the argument there are thet is that obviously you know say the prison could be at a certain level of violence at a certain point and then what happens after i mean it can completely it can completely change so i think like what you're talking to saying while he may be at has some weight to say well if this were after it must have been this way before but it isn't as strong as evidence leading up to it as to what the actual conditions were but mr hayes whole theory was that this was an ongoing and systemic thing that both predated his attack and post dated it and so that was why this evidence was relevant and if the defendants had presented a story that well in april two thousand and seven there was no problems and all these problems came later i can see that argument but that was not the claim they were making the claim they were making is that they had no reason to believe throughout this period that sex offenders were particular risk involved with the court have let's say there were ten forms when the court be where the court knew within its power to say well ok i'll hear testimony on three or four but i'm not going to let you you know i'm not going to put all ten on th records going to have to have discretion on how to manage its case but what's clear in its rulings is that in any every instance in which a concert there was an objection to a concerned form that posted the attack the court up held the objection solely on the ground that it posted the attack and if the court first sort of lays out its reasoning and this is the excerpts at seven and then in each subsequent instance when it's challenge the sole basis for the objection is the time frame the court says i'm going to sustain that so this is not an instance in which the court this court has to sort of weigh the district court whether you know gauging its discretion and it said well at a certain point it's cumulative or to certain point it's too attenuated this report made a categorical decision that these concerned form evidence when they were going to be objected to inadmissible and we think that that is not a proper ground for exclusion because the court recognized that they would have been relevant before the attack and my friend on the other side raised in this brief various reasons other reasons why it thinks that the concern forms weren't relevant or that they were attenuated but it's important to note that the district court did not think that those were going to be grounds for exclusion it correctly understood that those were going to be questions of wait for the jury but because it didn't roll out on the fact that because these post dated the assaults they were categorically irrelevant we think that's wrong precisely because the whole mr hayes account was that this was ongoing and systemic and the fact that after his assaults even when they you know arguably would be even on greater notice that there were problems going on at the i c c it continued to be the attitude there that people wouldn't respond to that i c c staff contrary to so certain causes representations were not responding to these attacks and if the jury came to doubt their you know their account and how they were presenting how these issues were dealt with we think it certainly would go to their subjective subjective prodding under farmer but we think it also we go to the objective problem we don't think the way the other side is trying to parse out evidence as being relevant only to one or another stands up let me ask you this right so you're making those have potentially arguments and the question that the jury said no two in the first was what was the exact question whether he faced an objective risk of serious harm ok and they said no that's right so if we did not i'm just saying this hypothetically if we did not agree with your that that the  potential objections are at that it was harmless if we find that it was harmless error what's your argument do you have an argument left as to those defendants on summary judgment because if against if if the verdict is proper as to does her and not that he didn't face harm how can you hold in the other people sure so you know we've raised at least two reasons one is that we have an objection to the reliability of the verdict but if the court doesn't agree with us on that we still think it could have made a difference if these defendants had been able to participate in trial and that the mr hayes ability to present his case and to show the systemic problems with the i c c might have led to a different jury verdict you know it's these are people again that's only relevant to the issue against c c a ok not against the other defendants for them it would have been the same sort of individual liability there was an objective risk of serious harm and they were deliberately indifferent to it and it's important to note that the district court held that there was a tribal issue of fact about the objective risk wrong and so the whole issue on summary judgment was just going to be whether there was sufficient evidence that these people knew what actual evidence did your client provide to demonstrate that c had a policy of failing to protect prisoners well but his the evidence with it's like to c c a i think this mostly peers the excerpts that one ninety one and ninety two says his statement of facts he notes you know based on his observations the understaffing at c c a the lack of training the failure to respond his m p is ability to make that argument i think is limited by the fact that he was a pro se in me but again it's important to know that is there any is there any specificity to it or is it just a general statement i think it's fair to say that those were more general statements more based on his personal observations but it's important to note that that we don't need to make that showing for the other defendants and for them it was sufficient to demonstrate deliberate indifference based on the notion that the risk would have been obvious and that was demonstrated by discovery showing multiple incidents in the previous year of inmate on inmate attacks several of which involve people specifically being targeted for their crime and the district court in its earlier summary judgment decision actually recognized that and i believe this is that fifty three of the excerpts that it was a fair inference to what we understand that w as in people on the housing committee would have understood that there was a serious risk going you know that sex offenders were regularly being attacked but then when it turned to the subsequent summary judgment decision it ended up accepting their claims in their declarations that they had no knowledge and that's of course their their claim and they're entitled to to raise that defense but we think a jury could have reasonably concluded otherwise based on the background history of sex offenders being targeted here and in other ways in which the district court resolve disputed questions of fact against my client it's held it's said as a matter of fact that the investigation into his the threats against him were adequate but that was  it said that you know it inferred that there was no reason to believe the fact that he noted that he had faced threats in the other gladiator pods not just in a pod it's discounted that is too big but again given the whole context three minutes i just finished this comment given the whole context and given the ongoing attacks against sex offenders in the area it should have been left to the jury to decide whether these people would have been such an obvious risk to assign him to cape cod and not just to move him away from a po of c c a in this matter as the court is already a looted through this is a very unique case and i think it is that uniqueness that allows this court to come to a a simple conclusion and that is the fact that mr changed about it the fact that mr hayes was able to have a day trial in which he was able to present evidence to the jury and ultimately the jury determine that he was not at a substantial risk of serious harm while he's obviously arguing and that the district cour exclusion of other inmate concern forms were prejudicial in the context of a prisoner case like this one because the plaintiff can you know typically lacks corroborative evidence and that would have been corroborated evidence so and they obviously by virtue of they didn't get very far in their questionnaire so if they'd had proper evidence why why wouldn't that have made a difference here we are i think it's important to note too distinctions that were not raised in the opening argument here and that is that the question that the jury was asked to consider was not just was mr hayes incarcerate a substantial risk of serious harm but rather was he directed if question is while incarcerated at the idaho correctional center on cape cod did plaintiff face a substantial risk of serious harm and this is a very material distinction because at the testimony throughout the case it throughout the trial indicates that the individual pods themselves are  that's it that's an important distinction because inmates cannot go from pod to pod and so if he faces is that matter in this mr hayes requested to be returned to cape cod well your honor to that at the same place where he  to substantial risk of harm well yes your honor at the trial evidence was introduced that he was moved off of cape cod at one time put back into a pod and in a pod he requested to be moved back to cape cod which and the jury so the propensity for sex offenders to be preyed upon by members of the general population i would say to the objective component of the deliberate indifference analysis no but i would say that to their  own subjective knowledge i think that would be a relevant question and if these concerns forms were authored or directed to these defendants dozer a cost or if they were responded to or if they had to do with cape cod instead of g pod or if they were in a temporal proximity to his assault then i would argue that they would be relevant is much like  the in specific the housing committee defendants in their in their declarations acknowledged that sex offenders are at risk of harm at at i c c and at other prison facilities the specific question here in the prison anywhere north america when you i don't have the knowledge to maybe can see that much but i would i would say that it is kind of a generalized assumption based off of i mean it's a generalized assumption and but the issue in this case specifically is mr hayes was specifically alleging that there were specific areas in which there was a heightened risk for sex offenders where sex offenders were deliberately placed for example on cape cod and at there at that pod he was at a higher risk and that is why the distinction raised by counsel is important because the court did acknowledge that it was could be potentially found by a reasonable jury that there could be a risk of harm to sex offenders at the prison was that they have to prove that the placement was deliberate they had to prove that that mr hayes was placed on cape cod with a substantial knowledge that he was at a heightened risk of substantial risk of serious harm and that is the distinction here honors that what we're dealing with is that even though it might be generalized that sex offenders are at risk of harm the testimony gaming issues and what the staff has testified to is that they acknowledge and an attempt to treat each one of those risks of harm as they arise and so the issue here is as mr hayes put forth this evidence and tried to establish that he was at a subjective a substantial risk of serious harm on cape cod on he ultimately was not able to to meet that burden and so that objective component carries which means that the district court needed to act in an arbitrary fanciful or capricious way in order for this to be an improper exclusion of these concerned forms and the court when it made its determinations it was not an arbitrary or rigid temper or temporal exclusion of this concern forms and to that end in the record itself it establishes that in the first in one of the first times in which these concerned forms were excluded the court specifically stated this is an e r seven i'm going to sustain the objection it's just one step too far removed mr hayes if this had been authored by one of the defendants or if it were in a time frame before april fourteenth which is the date on which you allegedly attacked then i would admit it suits me but given the fact that it was done afterwards and it was not done by any of the defendants but rather someone apparently under their supervision i think it just removes it it's once used step too far removed so in other words this is not a temporary and arbitrary cutoff and each time that the court looked at one of these concern forms while they did uphold objections later on due to the temporal nature these concern forms were counsel pointed out this was not objected to by defendant so it was just admitted and it was not objected to because it was relevant evidence and it's if in this novel it's reasonable that we would have to object because it's discussing the mindset of defendant those are his subjective knowledge as to inmate risk of harm and even though it is on j pod it it could be relevant towards his subjective understanding of the risk to potential risk or alleged risk to inmates on the j kale unit all right do you want to respond briefly to if it if we were to find that was an error why would it be harmless  while not all of the specific points of those concerned forms were explicitly testified to in a parallel testimony the substantive nature and the overall points at which counsel's argued that these concern forms were admitted for was raised and that is the credibility of staff the inability of staff to respond to concern forms the ability or the the alleged   he continuously stated you know that he testified that that staff would he would tell staff of sex offenders and that they were being threatened and that then staff would you nothing  to respond to that and so to that end it's harmless error mainly because it was already testified to in addition as was pointed out these concerns forms do not relate to cape cod they do not relate to the name defendants who are at trial and they do not they're not temporally linked to the conditions on cape cod so as to the objective component of the deliberate different deliberate indifference analysis these form simply are not relevant to what had well what mr hayes objective substantial risk of serious harm on cape cod was at that time and finally  because they were not authored or responded to by mr towser or mr acosta there's no evidence that they would implicate any of their subjective knowledge either so for those reasons there's it would be harmless  to to exclude these forms now in moving to the summary judgment portion of this court's analysis again due to the objective need to to the find of the jury we would initially are you that had any defendants made it to trial three summary judgment or otherwise there would be they would have ultimately been found to be delivered deliberately indifferent due to the finding of the jury but at the same time  subjective knowledge that these that these defendants had was safe was insufficient to establish that they had a set pacific risk of that they knew that sex offenders  civic and substantive risk of serious harm on cape cod at the time that they placed that they suggested that mr hayes go there and there and mr hayes while making generalized assumptions and allegations in his briefing  back one really quickly what the court found for the housing committee was that they acted reasonably based on the undisputed facts before them and this is this carries on with  as the third component of the farmer brennan analysis which is did the even with the subjective knowledge did the defendants act reasonably to in the light of that knowledge and to the housing committee because there was not a pervasive and permanent practice or pattern he makes generalized allegations but these are without personal knowledge and without any sort of other factual or documented knowledge as well  questions from the panel i would just ask we would request that you uphold the district court's findings thank you thank you thank you three general points i'd like to briefly make first my friend suggest that it's a sex offense because sex offenders are at risk everywhere they have to make some sort of heightened showing and i don't know where in the case law that comes from the idea that just because sex offenders we know that they are targeted they have to show more so than another inmate that they're going to face a risk here at the i don't see that anywhere in the case law it's not consistent with farmer in which where the risk was that the inmate was a transgender inmate and that it's in itself was a source of the so therefore i have a case that that's certainly correct and my other point with respect to that is that the i c c has not just any prison that's what the record suggests and what the history of the prison suggests that there was a real ongoing record of inmate on inmate violence and particularly involving sex offenders you know that is establishing the record in this case is as we noted in our brief this case was also at one point going to be coordinated with another watched suit in which the same sort of allegations about inmate on inmate violence and particularly the targeting of sex offenders resulted in a consent decree that led to a contempt order that is also currently before this court another point my friend indicated that the risk had to be shown on cape cod only that it was cape cod specific but that the record indicates that there were several that there were gladiator pods in which there was a generalized risk that these wings were sort of the roughest wings in the prison that sex offenders here in all of these particular wings were facing threats and had been extorted told that they had to pay rent and rob and there was no basis that the defendants presented to think that there was somehow distinction where k pot was safe client asked to come back to cape cod about that right so that was not that was later on initially he asked for protective custody and made clear that he thought well he could live in general population somewhere cape cod was not one of those places where after he had been briefly at medical he was reassigned to a pod and threatened again and did ask as compared to a pod to go back to cape cod so i think it's a fair inference that at that time he thought he part of a safer for him than a pod it's not a fair inference to think that he i mean it probably goes without saying that you know presence aren't quite as safe as living in a senior community that you know if so i mean i think anyone bringing a case has probably has the juror and the jurors mind they don't expect them to be perfectly safe by nature of the population and that's certainly that's certainly true but mr hayes presented evidence that this prison was unusual that there was particular instances of attacks and if he had been able to present the evidence corroborating that we think the jury would have believed his account right  other sort of issues of it being attenuated or is simply a red herring that that was not the basis for the district court's judgment thank you all right thank you very much both of you for a good argument in this case that's helpful and this matter will scan submitted and thank you again for