the taylor case involves facts that are remarkably similar to the facts in this case with one exception that i'd like to discuss later in taylor the supreme court held there is no clearly established constitutional right to the proper implementation of adequate suicide prevention protocols now the supreme court went on to note  but looking beyond is it your conduct is it your contention that a defendant that of the correctional officer who has actual knowledge of a high risk of suicide has no duty to act on it that's not clearly established under federal law  not my position we don't have to go narrowly that far in this particular case in this particular case if we look beyond qualify to be very officer walker did exactly what he was supposed to do screen right that's correct and the district judge found that he knew that and of the of the risk that's a factual determination that's really beyond the scope of our jurisdiction so given that actual judgment we do that but we can't address factual questions and of both both parties both sides treated our jurisdiction is on question here but it's in fact quite limited to legal issues not to whether district whether the evidence for example adequately supported the district judges factual determination johnson against jones as the supreme court case dealing with out and we've we deal with all the time so we have to treat actual knowledge of the risk here as a given now suppose a correctional official has actual knowledge that a prisoner has a is suicide different your honor suicide will be back up the supreme court has made it very clear that there is no clearly established right to the adequate implementation of a suicide prevention right to learn it was not dealing with actual knowledge of a risk it was dealing with a larger policy about whether jails have a duty to put in place of the suicide prevention protocol but in our case laws very well established at least that where you have actual knowledge of a risk there is a clearly established duty to respond reasonably whether or not successfully your honor my position is that this court has handed jurisdiction to reach the question of whether officer walker of response was reasonable and if you so don't care will it supposed that's right how did he respond in a way that was different from the way he would respond to any low risk oh what he did which he would not have to do for a regular detainee is he what mr clark in a holding cell which was uniquely positioned to prevent walker put him in a position of iraq did two things that are flawless number one he put him in a cell where he for all practical purposes couldn't attempt suicide that's the so we know or he did succeed in that that that is not right ok the sequence of events is this officer walker put mr clarke into a holding cell and left the results of the spillman suicide assessment where it would be found in scene by medical personnel those are the assumptions officer walker me and he was right when in the holding cell the nurse who testified that she was trained to make a suicide assessment came to assess mr walk mr clark in the holding cell interviewed him and saw the couldn't commit suicide and he left the results where they would be seen and worst seen by the nurse the nurse conducted an evaluation mr clark said he wasn't suicidal the nurses found no evidence that he was concluded that he wasn't but didn't put him in general population the nurse put him in one of two special needs cells where prisoners with special needs are house now is a nurse testified that she did this because mr  was intoxicated in the detox occasion process requires some time the cell assignment was made by the nurse and the nurse made a perfectly reasonable cell assignment to a special needs cell now one additional foundational for act that i think sets this case apart from taylor and sets in this clark to go to the special needs cell and in the next five days there is no evidence they had mr clark evidence any sign of suicide now that's different than the suicide cases that this court has found in the past because of their ip leave it is entirely possible that they had the assessment by the  officer whoppers involvement ended five days before the suicide occurred the question is whether the prisoner is in eminent evaluation it do i understand your position correctly mr bold you are at this point defending on the theory that walker recognize there was a risk and took appropriate steps  risk so officer wopper responded appropriately but mr clarke said he wasn't suicidal an officer walker testified that he didn't think he was suicidal but he was doing the pr court's precedent there is no way that could have been aware that mr clark was a significant risk of committing suicide in the short term a second she's entitled to both the immunity defense also on the first on the first question i guess a hint you're talking about knowledge of the risk rank i guess the district judge found to the contrary that  f least there were questions of fact as to whether she had actual knowledge she saw the spillman result right that's correct as she put it in his chart it says maximum risk and how do we even have jurisdiction to review that assessment well i think  that risk assessment works out right i think that he doesn't know he didn't do it and nobody did a follow up to a follow up after he was sober no no that's correct so you get a maximum risk assessment l that cell was monitored by video camera by an officer around the clock so mr mr clarke was placed on around the clock video assessments is that there was so in which he committed suicide  that knowledge the first is where the inmate says something that good morning that he might be suicidal for example i don't want to live like this anymore or simply to answering a question than the affirmative are you yes mr clarke in the suicide risk assessment reported that he had attempted to commit suicide i think it was ninety years in the past there's really no detail other than that that we have there are some records in his voluminous jail charged that he may have attempted to commit suicide at a different facility and that was i think a year and a half or so before his successful suicide attempt so those are the those are the other two but none of the information was available at the sound to actually at the time when he was in the jail though the the  more suicide attempts approximately one and a half years prior was mr clarke's voluminous jail records but there is no indication that either the nurse or officer walker reviewed all those jail records before they they treated mr clark wouldn't that be sort of normal followup given a maximum risk assessment somebody on every depressants who can't provide the identity of the drug or the doctor no follow up at all so the district  through i believe mr clarke's record for four to five hundred pages something to that extent to do that for every inmate who presents us well we've got his or anybody else who is of maximum risk that we can and i don't believe that that evidence is in the record ok  and we've got i'm just looking at the district judge's opinion of pages thirty one thirty two or he's basically reviewing the questions of fact that are replete in the record were guarding  and i maybe i missed it but i didn't hear anything that actually specifically rebutted that well i i guess i don't recall specifically that portion of the decision but inconsistency as regarding who was responsible for placement and protection after clark was determined to be an extreme risk there's a contract that says not mental health but walker in kunar pointing fingers at each other here we've got you need to sheen she remember name no current prescription after that no action taken with respect to these red flags concerning mental health no evidence she attempted to ascertain the name of the current prescription or otherwise consulted be on call nurse or doctor so that in effect her failure to do so means he's off his meds right yes that's and conflicts with her testimony regarding luke towel and then she says she started the alcohol withdraw material well i think the focus of our argument here today is that if there's no if there's no knowledge that he is in that risk of suicide then that is a prerequisite to pursue the claim and that's not shown by maximum risk i believe in this case it is not just you want to talk about a second issue of the indulgence of my colleagues i just like to ask you briefly about this certainly it has to do with whether nurse kune as a private contractor is governed by richard some or full i think i wouldn't go that far i think it is definitely it contradicts it to some extent but i think that the richardson court was very clear to emphasize that their decision applies only to private correctional guards working  the kinds of contracts to reach here and frankly throughout the circuit for all health care to be contracted out well i think that i think that you're correct i think that they would apply however in  i agree i think they would apply and the implications of the argument you're making would apply to every state the health care for every state prisoner in indiana wisconsin illinois this morning because they all use sixteen because the court said quote qualified immunity does not apply to private medical personnel in prison and call it thirty six f third seven twenty two at seven thirty four  s two proof of knowledge i agree with judge hamilton that is an issue of fact over which this court doesn't have jurisdiction and judge clerks finding that there were at least material issues of fact the record as true both defendants knowledge of substantial suicide risk is beyond the jurisdiction of a qualified immunity  has talked about the importance of these suicide assessment instruments he wrote in his report the following well the fact that suicide is a relatively rare occurrence makes it a challenging event to predict this is one reason jails and other institutions responsible for the safety and care of others routinely use screening tools to identify persons who have risk factors that put them at elevated risk once that identification is made the knowledge of the risk is a stable and he response to this identified by her ability to suicide must fall now the defenders say they don't go along with the assessment instrument and i suppose they might not but we think a jury could find that they do if it jailer has just seen an inmate's temperature taken with a thermometer and observed a reading of one hundred four degrees but still testifies that he doesn't think the inmate had a fever the jury could disbelieve his testimony that he did not think the inmate had a fever well that's a little more plate of does not need to show that you officially intended harm or believed that harm would occur this court put that in slightly quoting farmer whether approved prison official had the requisite knowledge is a question of fact if the circumstances suggest that the defendant official being sued had been exposed to information concerning the risk and thus must have known about it then such evidence could be sufficient to permit a trier of fact to find that the defendant oficial had knowledge of the risk what were these individual defend ts exposed to the opinion uses the word exposed while they were exposed to ryan clark such a whole file which contained the records from his recent incarceration nine months earlier artist of two thousand and eleven in the winnebago county jail where he tried to commit suicide by cutting his wrists not a year and a half earlier not may have tried to commit suicide nine months earlier  in the neighboring county from which he was transferred back to greenway we've discussed in our briefs many get out his roles and that that that's information they could have found right well the jury could find don't know what i mean the the the adjoining county attempt was that was that that was not evident right away to the nose right it was s access to the information the finder of fact could find that they had knowledge of that sounds pretty close to saying we should have looked at it right but should have is different from what chose not to were deliberately indifferent didn't care i mean that that's the kind of language you have to get right right and paul merson so what what what about what are the facts here that you think show deliberate indifference to that information paul versus ryan gets to that very juncture and says if if they knew about this indication of suicide risk and they didn't even do the basic things are supposed to do things like looking at prior records they had it itself can be deliberate indifference so it's the failure to follow up on the maximum risk  now walker misrepresents the record when he says that he did anything that he would not have done with any other  he did he put it there there's the special needs cell area and there's the booking area there are two separate areas of the prison he put ryan clark into a holding cell in the booking area that's exactly what he did with every prisoner after intake and every prisoner after intake was seen by the jail nurse so he did nothing that he wouldn't have done with any other  that any adequate response would have included referring to a mental health professional if he went on to say that it would also have placing a person under adequate monitoring or supervision ensuring that the person was not isolated from other people and limiting access to the means to injure themselves or commit suicide  meetings it looks like sheen for example actually engaged in what the dissent in the piece case called a harmful intervention when she isolated clark in the special needs cell where he would be absolutely alone twenty four hours a day seven days a week and where she visited him only a couple of days before she went on vacation for the long weekend and when she visited  she had him just because her mother through the food slot in his cell door to take his blood pressure and pulse that's all the attention that he got in that special needs cell so it's a little disingenuous to say he wasn't exhibiting strange behavior because nobody knows what he was doing in that special needs cell where he was isolated and all the stress from one of the challenges that seems to be on your side of the case is the delay here you walk  deals with him but on may twenty third rain in scheme the least those the initial evaluation or failure to follow through around the same time the same night he doesn't commit suicide until may twenty eighth could you address you know since this issue of imminent and causation sure walk her to the very simplest comments sense thing that walker could have done to try to avoid a finding of deliberate indifference would be to just tell the other people involved in ryan clark's care that he had scored maximum video monitor was because he didn't know about any suicide risk sergeant flaw who walked by ryan clark sell a little what didn't five minutes before the final operation and hung him and saw the rolled up mattress would have made something of more significance all of that rolled up mattress ed she'd known that there was a significant suicide for us there so there is causation from walker's failure to do anything here's the part of the argument that i'm the most excited about  finally you might get an idea must a plaintiff show for a team that he had the right to be free from deliberate indifference to his risk of suicide specifically by hanging or specifically no because no reasonable officer could believe that the means by which an inmate commits suicide has any constitutional significance no reasonable officer could believe that it is unconstitutional to be deliberately and different to suicide by hanging but ok to be deliberately indifferent to suicide by poisoning closer to disc peace must a plaintiff show case authority that he had a right to be free from deliberate indifference to his substantial suicide risk where an officer has learned of it in the same manner as in the plaintiff's own case in this case the spillman assessed no we don't have to show that authority because we're an officer has come to know know all of a substantial risk of suicide no reasonable officer could believe that the manner in which he or she gained bad knowledge has any constitutional significance in other words no reasonable officer could take that he has a duty to take reasonable action to prevent suicide where he or she has learned of a substantial risk through an inmate's self report but not where she or he has learned of the risk in some other equally reliable manner such as the reports of multiple family members and whether the officer harris learned that fact rogers i'd like to make two points number one officer walker's conduct cannot be criticised he did what he was trained to do he put mr clarke in a place where he could not commit suicide and he passed the information he had along to medical staff the issue of qualified immunity is whether a reasonable officer in officer walker's position would have known beyond debate that he was violating a constitutional right it simply cannot be said that a reasonable office or in mr walker's position would have known beyond debate that he was doing anything wrong at all his conduct is appropriate how long was it before nurse kune found the spillman results hours your honor i don't i don't have the exact number it's in the record but it's very shortly there after like five hours something like that but it's a it's a plant needs to show there was significant likelihood that a person does he would imminently take to take his life i judge that's my second point five days went by that sets this case apart from the separate circuits other decisions and it sets this case apart from taylor it is not farfetched to say that nurse keane's assessment on the twenty third that mr clark was not suicidal was absolutely accurate mr clark was put in the same a reasonable way to view the evidence i represent officer walker but the evidence is that mr clark didn't know the anti depressant that he was on and that he was also drunk is that