please the court counsel i'm joined here from miller i'm here on behalf of rhonda marsh who was briefly and then mate at the felt county jail i think you can adjust the microphone so we can be sure to hear you thank you thank you and while she was briefly an inmate at the phelps county jail she was sexually assaulted by a guard that was working there this case comes before you on a motion for summary judgment that w granted with respect to sheriff gene samuelson in his individual an official capacities pinney greg lieutenant who was in charge of the jail and the official claim he is a party to this appeal he has individual claim was separated and separately docketed so we could proceed on this appeal and there's been a motion for default judgment granted against him but separated and separately docketed so that you could proceed with the subpoena that on the face of it that sounds like it was something was done to avoid the final judgment rule well i first of all i think that that probably was the effect of it it was separately docketed but i mean was he originally a defendant in this case campbell and he was how did it end up getting separately docketed your honors i think i set that out in my brief ok after in the statement of the case piece of my brief that after the motion was granted with respect to this case and he was in default of answer that it was determined that it would be separately docketed so that the default could be entered against him and so it was and so it was set out separa and my appeal came so that is i just wonder if that creates a jurisdictional problem now that you explain it that way that there is still a pending defendant in this case and whether the separating him out as you put it can really avoid the requirement of a final judgment as to the whole case before you appeal well i don't believe that he is it as an individual in this case any longer he is at a separate docket and page it was not we normally wouldn't allow i don't think a party to just separate part of the case into a different docket number in order to avoid the final judgment rule and appeal partial judgment i do understand what you're saying did you file a motion to separate in your honors i would have to i'm going to study that well oh other side will be suggest in federal court or did you move to state court or something like you know he's in federal court and he's just before judge cup he was in this case and now he's before a judge cup in a separate case because you somehow got him separated out after this order was entered that would be true but i believe it's in front of judge to ard all right it's in front of the us do that it is in front of the u s district court for the district of nebraska that is true and there is a default  against him now with respect to the issues in this case as i indicated this comes before you and a motion for summary judgment wherein judge a magistrate swart initially found that there was no material fact and that the defendants were entitled to judgment as a matter of law and all of the claims except for mr compact compact me a individually and  submit that that is in error and the best case that we have toward that end is the colleague case cali versus leonard in that case the defendant in that case  argued that they were not subject lee subjectively aware that the plaintiff was being sexually assaulted and the court this court the eighth circuit court of appeals found that you don't have to be subject billy aware that a person is being sexually assaulted but you have to know that she's at substantial risk of being sexually assaulted we believe the evidence that this case is indistinguishable really he was not with women and by that i mean corrections officers who are required to be tending to the women in may he was there on his own accord he was often outside of the area where a person could see what he was doing he wished flirtatious with he and made they would make reference to tooth brush shoulders that they used as objects to masturbate with and he would would not react because he knew what they were doing he was seen to be too short months before my client was sexually assaulted he was seen to be looking at women in their woman walk for a period of time of forty five minutes that was reported to penny greg and she basically chided the corrections officers to attend to their own business and not worry about what the other corrections officers are doing that i'm paraphrasing there but that is what was done with regard to that we submit that there is no it was least appaloosa report of the first physical contact between a companion and that put the leadership in that facility on notice that he was a threat physically to inmates well in july there was an inmate that came forward that was released from their jail and she said she let them know what was going on and that's when they knew the full extent of it however it had been reported that he had put his hand on the inmate shoulders all the flirtatiousness and the fact that he spent a lot of time in the inmate self's much before that and so we submit that there was a substantial risk that a woman would be sexually assaulted that ms gregg and mr samuelson knew of that certainly before before long before that inmate actually came forward and said there was a sexual assault going on also with respect to this case your honour's it is our contention that  mr compact mya having been made into a corporal in may and was the head shift supervisor he was an agent of the county and he was honor it's it's honest day because the court decided that it should be stayed until this issue is decided to see if there are other defendants who might be financially responsible for this to my client as well final answer on them the litigation they're just well there's a default judgment against mr km hagia because he did not answer in the the lawsuit and he had been criminally prosecuted for doing this there's little doubt that he did it it's just whether or not it the other parties are liable or whether the county is liable and i stood meant that the county is liable for what mr compact and that ought to be connected with your client pardon or how that happens to be connected with your client what do you mean well you're you are as i understand you you are saying that she should prevail because of what mr companion did and there is no i'm confused about how he fits into your scheme here he sexually assaulted her and he had her stand at the med cart and he put his he did usually penetrated my client when she was an inmate at the jail when he was a corporal and you're trying to say the county is accountable for that  guard to the others they were they were aware that they were putting her at substantial risk of what is your theory against the camp because they knew he was going down there against their polic supposedly their written policies but they knew he was spending substantial time in the woman's double locked outside of the area where they could see what he was doing just like in the kali case and so we believe that please the court and counsel my name is brandy johnson i represent phelps county sheriff gene samuelson and it's lieutenant penny gregg who are the supervisory officials named in this matter this case largely centers on qualified immunity this court's review must consider whether lieutenant gregg or sheriff samuel flynn actually subjectively knew that there was a substantial risk of sexual assault to female inmates based on the emperor mation that each of them personally separately were aware of during mr companions employment and that legal standard here is still important i think it adds some clarity to break it down a bit further into its component parts the actual subjective knowledge component of the standard means that we're not here to consider what with the benefit of perfect twenty twenty hindsight ms marsh or anyone else thinks lieutenant gregg or cher samuel saying quote unquote should have known that would be an objective standard that would be directly contrary to the u s supreme court precedent and farmer versus brennan the standard is subjective and one of actual knowledge so it means more than just mere suspicion and the substantial word in the standard is also critical because it entails more than just knowledge of a mere possibility of parma theoretical risk of harm or a slight risk of harm it must be actual subjective knowledge of a substantial risk of harm and my opposing counsel mentioned the  case in her opening argument and that case is easily distinguishable from the circumstances of this one i think the clearest way to distinguish it from this case is that that was essentially a direct participation case where an individual was denied qualified immunity on the basis that disputed fact about when he was actually present and whether he actually saw a male guard go into a female inmate cell and saw him kissed her there were disputed docs in that case in that regard so it was essentially a direct participation case but there's no allegation here that lieutenant gregor sheriff danielson actually had any direct participation in mr  sexual assault acts on inmate that were done secretly and deceptively by him this is the supervisory liability case and the supervisory liability standard is governed by a precedent of this court and  supervisory liability there has to have been a past pattern that's known to the supervisor that's individually named of conduct in the past by this subordinate employee or other employees that was that is very similar to the type of missed misconduct that alleged in the civil case in this instance sexual assault and it also has to be sufficiently agreed just this would have to be actual knowledge supervisors this was going absolutely the standard entails actual subjective knowledge of a substantial risk of sexual harm is there any allegations here that they knew that this was launched turned over to the state patrol within forty eight hours and resulted in his germination and that immediate action taken by lieutenant gregg and sheriff damaeus and is part of the evidence in this case that justifies the summary judgment because it five and in that case it very clearly lays out that supervisory liability standard in the requirement that the supervisor had been aware of past misconduct by the subordinate that is very similar to that alleged in the present case and before in that case which he's apparently ex accepting the allegations being true play out in terms of knowledge of the people that are  that are named actually subjectively know and they didn't know the fact that he's deep altered in this subsequent case and admitted what he did after the fact after investigation has no impact on their knowledge at the time that he was in play and that knowledge no i don't believe that's a component of the case against mr companion that's just been separated and deep altered out there was a stipulation to sever that case which i think is permissible and that's how we end up where we are where only the supervisory officials are involved and in the appeal what do you mean it's permissible it may be permissible in terms of what we mean is permissible i'm concerned about whether you're suggesting that parties can after a district court resolve certain claims in a lawsuit stipulate to sever the remaining claims in order to facilitate an immediate appeal of a partial judgment and i was like what may have happened here and i wonder whether we should allow that as best i can recall when we we did enter into a stipulation under the federal rules  period here is the knowledge that lieutenant gregor sheriff samuelson had during the time period in mr companions employment and prior to his suspension obviously they can't take preventative action based on things that they factor information that they don't have at that time so the fact that he later admitted that he engaged in this thing conduct or at least deep altered in the separate case against him would have no impact on those supervisors scope of knowledge during the time period  that are part of the evidence here but it i think it's important to point out that some of the evidence in this case is outside that scope of what lieutenant gregor sheriff stan wilson knew during the time period of mr companion employment because there are investigative reports in the in the record that were generated after he was suspended after mr component was suspended and those facts were not some of the facts you mention like the flirtatious conduct that occurred is a correctional officer abetted an email to lieutenant greg steyn essentially she had seen on surveillance camera and may doing inappropriate things she didn't mention mr by name she just insinuated it well anybody who was on duty on this other shift should have maybe should have done something different or maybe they were watching essentially so the tenant greg investigated that complaint and determined that it was unfounded she looked at the shifter records as to who was on duty she determined that mr component was the master control but she reviewed the surveillance and was able to see that he was not focused in on the camera during the inmate night masturbation  conduct and there were other officers in and out of the master control office at that time they appeared to be performing regular duties the other officers were checking it through the cellblocks and ms knight seemed to be trying to hide conduct so that liability on the county for his acts and that's not the case this court as well where there's no response superior liability under forty two u s c nine hundred eighty three the county can't be held by curiously liable for what mr  only be liable for its own actions and other and those actions have to come in the form of policy training and the county's demitted ample evidence that the summary judgment stage that the policies of the county did not condone this kind of conduct it's because it was prohibited there were professional demeanor policies anti sexual harassment policies codes of ethics case also bears out you're not required to actually put in a policy manual or in your training that and guards you're not allowed to sexually assault inmates that together because it's a matter of state law but the policies did prohibit this kind of conduct mr  actions in the jail that were not able to not ever he was never caught in the act by any of his fellow employees who actually did work shifts with him he was being manipulative and deceptive in his and his conduct and it wasn't anything of which that was it was done essentially in spite of county policies and training and not because of it because of the policies and training and that's why the summary judgment in the counties paper was appropriate now there seems to be some allusion here an appellant argument that because mr companion was a corporal maybe they argument is that he's some kind of a final policy maker but that's clearly not the case the court's precedent provides that final policy makers are determined by as a matter of state law a state law in this case is that the final policy makers that phelps county our county board a corporal at the jail doesn't have final policy making  authority to bind the county to his actions so that's not an appropriate basis for any kind of county liability and the claim against mr component his official capacity is under this court's precedent a claim against the county so that it's it's it requires that county policy training or something of that nature to have been on lawful and but have been the cause of his conduct but again he didn't act because there's insufficient evidence to support that you there of these supervisory officials actually subjectively knew of any substantial risk of harm to female inmates prior to the time that they received the baker complaint on july eleventh two thousand and twelve and immediately acted to suspend and ultimately terminate mr component and there's no basis for county liability therefore on behalf of my clients i respectfully request that the district court decision be affirmed rebel having refresh my recollection as far as what happened with splitting the other cases out it is true that we filed joint motion to sever the claims against defend his individual capacity only and that was separately docketed it's on page one on the jurisdictional statement of my brief with respect to that i at the time i believed we could go forward and get our default judgment and have the judge determine the money damages as to mr companion and go forward with the appeal but it didn't happen that way because judge gerard thought it better to wait for the this case says decision with regard to ms johnson's comments about the difference in the colleague case and our case the colley case specifically had to do with whether or not they knew that the defendant in the cali case was sexually assaulting the individuals and the eighth circuit said you know factually the jury could believe that they did not know but if they could believe that he didn't know that they would have to ignore the fact that he was going into the areas of the jail where the women were and that's the very same thing that we have going on in this case it is not it is on all fours with this case we factually there is sufficient evidence that a fact finder could weigh the evidence and they may decide that it was reasonable but they may decide it wasn't reasonable and submit in this case that there's sufficient evidence to go to a jury and have the jury decide whether they were deliberately indifferent to my client's rights to not be sexually assaulted while she's in jail for a short time  i do said it that that paper vs case from the united states supreme court that discusses the different ways to sue an individual whether your suit someone individually or in their official capacity you know definitely in that case the state was trying to say that the person was only in their individual capacity or they were saying it was in their official capacity in order to try to avoid liability in the person's individual capacity but in this case i submit to you that mr companion had been clothed with the corrections officers accoutrement i mean he was acting in his defendants in this case admit that there is sufficient evidence factually for the the fact finder to determine that they were deliberately indifferent with what they knew they were letting him go in the women's cell block for long periods of time they wrote him up on his evaluations and said you need to watch yourself around the women you need to spend less time there and that was ms gregg that said that so she was  that he was doing that she might not have been aware of every little thing but she was aware of enough to make it a factual issue thank you thank you judge thanks to both counsel for your presence before the court this morning the argument you