perfection and when you're managing to that many people i mean we have a situation here where the guards is not a slate is doing the job but someone gets out of bounds i guess that show real specific to your client and that is different from the risk to any transgender made our aunt and pretty much any you made in the reply brief before i do that i in case i don't get to that is i want to make it clear that that this court's decision in alfre i believe answers the merits of gladney allegations of facts do not are not entitle to the presumption of truth to solve legation to provide facts relating to the jurisdictional issues i will point out where play because there is an evaluation of this particular in may risk taking into account of variety of factors certainly it at present is a dangerous environment it's a very complicated environment but there is no no no risk to this particular invasion that would make this assault foreseeable what we have here there was absolutely no history between these two inmates there was no complaint considerations mean it's not the type of activity that congress intended to shield what we see in the nurse case in the galvin case is not that the court put the burden on the government to establish  of constitutional violation that's not what happened in the galvin case the court specifically found that the plaintiffs had established a constitutional violation it was actually played and established in the nurse this restriction on the government's discretion by virtue of the cost of tuition if we look at the record it is argued by all the only thing we see is that there is a transgender inma policy considerations we don't have anything close to that in this case the reason i say that there's we don't have established that there is a constitutional an th amendment right it's a continuous monitoring was in conformity with the regulations that provide discretion in that area that don't require video monitoring for example in every corner of the facility we don't have anything like that why don't  really i understand that is a reference in the to the regulation it's one of many factors there is no evidence that there is what that would mean what is generally accepted  argument i don't know i don't i don't see how that the regulations are completely separate there is no incorporation by reference in the regulations from the adult prison regulations i don't see any connection between the provision in the lock up facility for continuous monetary to generally accepted correctional practices in  indicate the generally accepted practices means continuous monitoring is very vague and i think it's i think it particularly leads to the discretion of correctional facilities that officials that is and how or why those correctional measures in the in the said if you are facility there's no mandate about what that what that means which indicates discretion to the correctional direct to the attorney general to adopt them implement national standards for eliminating prison rape and that is exactly what the attorney general dead in the implementing regulations founded to twenty eight issues on there is no regulation concerning a account for all the generally accepted detention practices the older you get what records show about what are those generally have to practice in adult prison not in locker rooms but in adult prisons what is what do the regulations or other address its amendment issue in clarify that the government is simply mistaken and that the burden is on the government to prove that the discretionary function of consumption applies in any given case knows what this court stated in prescott versus united states and further involved in versus hey this court stated that the government does not have discretion to violate the constitution so when a prison official acts with the liberty of difference in violation of these amendments the discretionary function exception simply cannot apply as a matter of law now in farmers as brown and the supreme court as indicated that failing to act is fighting own risk no one and consensual risk of harm and not to a particular inmate but to a particular eyes group o