behavior and conduct he ended up being involved with the juvenile court system from two from june of two thousand and thirteen to october two thousand and thirteen he had about three separate periods where he was periodic lay in institutionalized there and in october two thousand and thirteen the mother had taken him out was trying to get him some inpatient rehabilitation and for reasons not really relevant to our people today he ended up back at the juvenile detention center on november th twenty thousand  center in which there were no cameras and he was left alone with an untrained employee the other employee who was there who's supposed to be supervising left the facility and he was sexually assaulted two days that was on a saturday  me granted qualified immunity to steve mcmahon stating that there was it was not clearly established so sorry under the solitary confinement we had looked at cases the davis biala case which was of course two thousand and fifteen and a couple of years after this occurred had really justice kennedy had really put the focus back on that the the situation in solitary confinement really need to be reviewed and really cited some very historic cases the united states supreme court had found that children were different than adults in a correctional correctional setting such as a question about how you define the right at issue  here you're not arguing that solitary confinement is unconstitutional well it's it's the toxic conditions of confinement of which we raise the issue on saying that it was atypical and significant harm to the this case this young man was kept in a solitary cell by himself sometimes twenty three hours a day he states that when he was put in taken outside and put in other areas of the facility such as the rec yard the t v room he was still left along he had very confinement or juveniles or or for retirement so solitary confinement for juveniles yes the rule yes in the pretrial setting and that court ruled that it had been established that it was cruel and unusual punishment and they relied on the same authority we relied on though which was several publications that came out before then such as in two thousand the prison rape elimination act had set standards for confinement that restricted solitary confinement in two thousand and four particular to ten a say the department of children services under policy twenty five ten had said that seclusion as punishment was prohibited and and they juvenile detention center worked under the supervision under the direction of the department of children services and then twelve thousand and six the washington law journal two was really a very broad dissertation of the damage that was done to a child that they should never be alone for more than twenty four hours but the best authority for us to look at publications journals as opposed to court precedent which is the united states supreme court that says that and that's where that was a talking about obvious cruelty and it relied on something other than case law ok all right i want i want to talk about health care and failure to provide health care and also we had an amicus brief that was submitted on that and i'm sure you've had the opportunity to review as well talk about the failure to provide health care the district court granted summary judgment on health care which we believe needs to be reverse because it was a very fact intensive inquiry that has to be done in this situation unfortunately it just appeared in the final ruling many of the facts kind of got jumbled up for instance what the district court relied upon one of the things was she said well the juvenile detention center had transported him to get an m r i showing that they had sought outside medical treatment well that was in october of two thousand and thirteen it's not even the relevant time period what was what was obvious in this case with this was a young man who was suffering from anxiety depression paranoia they finally started documenting the behaviors that they observed in the facility and then in december  th when he was sexually assaulted they basically put him away and did nothing and kept him silent for the next twelve days they even cut him off from his appearance at that point but they finally documented things like he was walking in circles he was throwing x circuit case in two thousand and seventeen that talked about observable systems within the facilities were never reported that's on page fifty of the brief that they had observed things that were indications of paranoia anger and depression and did nothing and did not report those observations to the mental health provider which is specifically one of ours the other one is the burns case which actually was a middle district case in two thousand and sixteen but it quotes an relies upon the shattering case which is a two thousand and fifteen a circuit court case and they talked about that that prisoners had a right to qualified personnel and timely treatment and both of those cases basically start historic precedent cases as well is that answer that question to you though sometimes the case law talks about are objective standard in a subjective standard of what might apply here right yes well the objective standard is what's a basically what's observable whether it's plainly obvious or somebody else had reported to them that they had a serious medical condition in this case we say it was plainly obvious the subjective part of that is whether or not he had a sufficient only culpable stare at the defendants had a sufficiently culpable state of mind i mean these are i have reserved three minutes i want to touch on a couple other things here one quick question yes can you point me in the complaint to where you've pleaded to procedural due process  under and i bring that up in page forty two dollars of the brief i say that that he was put in after he was accused of making an assault on somebody it was an administrative diff decision to go in in violation of the i say korea and the tennessee department of corrections minimum requirements which of course the defense say priya does not apply but the tennessee department of corrections minimum requirements required that if there was a move that there would be a into solitary confinement or segregation that they would have a right to a hearing so i do say that there was an event that occurred that he was an administrat n to move him they violated the tennessee corrections standards and then but they never charged him with a crime so i believe for the just for the pleading standard it was sufficient to allege the procedural due process also  in a few seconds that i have left i want to talk about the supervision lack of supervision in the rape that occurred this sexual assault that occurred on the plaintiff and how the  dangerous situation this is a situation where they put him in single cell to keep him safe they put him with an untrained supervisor allowed him to be out of his cell in an area that was not controlled and considered to be safe and secure and not where there were cameras and they knew this was a child that has actually acted out and got some rebuttal reserve thank you thank you go district court's order granting summary judgment in this case there are certainly a lot of disputes in this case but to preclude summary judgment disputed facts must be material and they must actually be facts and not characterizations of facts that are not on the district court time that there was a dispute of material fact over whether jay was placed in the single cell i was punishment or for safety reasons you're out of that the finding of the court that is the finding of the court your honor as plaintiff's motion for summary judgment the court actually found that they were disputed facts that precluded plaintiff's motion for summary judgment on that issue of course the district court went on to find that mr mcmahon was entitle to qualified immunity as to that issue because there was no clearly established law and the citations that counsel has just made to the court i think support the district court's conclusion that there was no clearly established law no controlling law of any kind that related to juveniles being there there is case law that indicates that procedural due process is required before using segregation for punishment but in this case the plaintiff did not plead a procedural due process claim while ms regularly points to having reference to generally the t c r regulations in her complaint the complaint actually references the regulations for local correctional facilities for adults not anything that would have applied to juvenile facilities at the time the complaint references very specific provisions of the t t c i regulations none of which have anything to do with a notice in an opportunity to be heard the complaint does not really understand the juvenile detention center policy manual  manual has a detention center incident report and that's to be required to be filed when you're restricting privileges as a result of a disciplinary procedures that was the document that was filed in this case and then there is an action taken line is our understanding on that document and the action taken was to move into a single cell doesn't that documentary evidence show that this was punishment your honor the undisputed testimony in this case was that that incident report was used in every single circumstance where an incident report was called for and that's borne out by the record there is no if it's used in every spot that an incident report is call for  an incident report is called for when you are restricting privileges as a result of disciplinary problems then your written documentary record establishes that this could be within a disciplinary proceeding and leaves frankly leaves the impression that it was well how can i mean i don't understand how someone can testify at variance with if you can't dispute your own records in your honor i would agree with you if that were the if the testimony of the defendants was the only thing that supported that contention but there are incident reports on that same form for example that relate to calling a nurse because the plaintiff had a lesion on his genitalia and the action taken was called the nurse that clearly was not punishment but that the same form was used the testimony was and it was unre that in every instance when any kind of incident was documented that is the report that was used and the record can become what was used for in this circumstance and in this circumstance you've got you've got an amounts to punishment there are essentially twenty two dollars ways that can be proven and expressed intent to punish which did not occur in this case or a an action that is not justified by some other rational purpose related to security of the administration of the institution in this instance j h was not only reported to have threatened three juveniles and all three juveniles were in unison undisputed all three g if juveniles were in unison about what they reported he threatened to harm them threaten to sexually assault them j h admitted to destroying items in the cell and as a result of that the detention officer who was on duty at the him but the detention officer who was on duty at the time immediately moved him to a single cell for safety reasons this was a young man who was in detention partly because he had assaulted his mother he had assaulted his brother on multiple occasions and threatened him with weapons of going with is this creates a dispute and this is this is an individual who would who say i was moved for disciplinary reasons  i understand that that safety may be a motivating factor but so is discipline because what you're saying to the child is you may not do that in our facility and here's the disciplinary response that we have when you take that sort of activity you are putting a kid in time i mean that's the discipline for the action that he undertook so so you have discipline in the case clear i mean since the idea hundreds you cannot discipline pretrial detainees they've not been convicted of anything and if it was just to see if it was not just punishment or if it was punishment then he should have had a hammering because the policy manual say is you will be provided a right to a hearing before the disciplinary committee but he wasn't provided to hear your honor respectfully i st of all would argue that all of that may be a genuine issue of fact maybe as to a procedural due process claim which just simply was not pled in this case in fact the plaintiff attended to him in the complaint twice right to be free from punishment solitary confinement that is a constitutional violation and that's the allegation in this complaint your honor as to the substantive due process violation makes clear that for a pretrial detainees being segregated there is not necessarily unless there's an atypical hardship a a right not to be segregated under any circumstances and more to the case the segregation was because of the concern about escape that could very well also be viewed as a punishment were punishing you for plotting an escape but the th circuit found that that was not something that implicated due process rights substantive due process rights in fact i believe in the more t the court found that it did not implicate procedural due process that i guess i'm struggling with the question is not what happened in one particular case the question is is there a due process clause that is appropriately before the court and the position of the plaintiffs it is the placement in solitary confinement with punishment in violation of a constitutional right not to be punished so why doesn't that study a climb your honor because  the case law in this circuit and the case law from the united states supreme court would frame the substantive due process claim in a different way there must be more than simply a decision that a pla young man was there but at the time that he was actually moved to the single cell there was no other dorm that he could have been placed in this was the record shows a very small facility twelve beds so there were better quality of children there but at any given time he was also there there there were not ten or twelve different children there at any given time but there were other children of both genders and a female doormen a male dorm and four single cells so the but the three people that he allegedly threatened were released the next day although those particular individuals were released the next day and your honor frankly if the record were only that he had had a contentious relationship with those three individuals then there probably would have been more extensive evaluation about returning him but we had that in the context of this young man having a history of violent behavior of his mother telling detention staff and the juvenile court that he was completely unable to control his behavior when he was the th amendment not to be punished you may have a response to that yet but that doesn't mean it's not an appropriate klein for a court to consider it i think that it is an appropriate claim for the court to consider  but i don't think that the deprivation in this case rose to the level of creating a constitutional right your honor the bill that's the question to this court did it or did it and if it did and there's a dispute of material fact and there's a claim that can go forward wouldn't that be correct if this court department's prior precedent about what is a significant deprivation that would implicate a liberty interest in that situation i would agree i would submit to the court that  jurisprudence makes very clear that lots of things that feel like hunnish went to a pretrial detainees are not i'm certain that when one cruise our codefendant in this case sat in pretrial detention for a year and a half because he couldn't from the from the other side or rd option was it sort of a either or it was an either or your honor because the judge had made clear that she was not going to release him until arrangements were made for him to be safe because the previous time that she had released him as the record shows his mother represented to the court that she was taking him to get treatment and a month later the court found that he was actually in kentucky at his maternal grandmother's house had been the entire time and when he returned to the juvenile facility he reported that he had been drinking champagne and smoking marijuana and on other occasions when he had been released into his mother's custody he still vehicles and wrecks them in fields and thank goodness no one was ever seriously hurt but after the  nd time that that happened the court was very concerned the court candidly probably kept this young man in this small detention facility too long because the court was offering mother options to try to find residential secure placements for him so that the court would not have to put him in d c s custody and the mother was trying to make that happen i would agree your honor the expense of those places and the ability to get in psychiatric care is very limited well your honor just to clarify there were actually psychiatric facilities that may have been available the record would indicate that the mother was not comfortable putting the child in a residential psychiatric facility but was insistent upon a medical facility that would treat this this pandas diagnosis which i think made it more difficult to find a residential placement certainly but we don't dispute that mother was looking for a residential placement we're not faulting anyone on that but i think the parents and the court and certainly the juvenile detention staff that had no control over him being there they simply had to address the issue while he was there and the bell versus wolfish case we're looking at whether something amounts to punishment insist that there be deference to these decisions in less there is not some other rational alternative to punishment that is a viable explanation and here there must clearly is a rational turn to this was a compelling safety issue this young man's own psychiatry is would not allow him to go to public school because to use her words his behavior constituted quote a very real risk to other children we based you so many question do you have reached your medical care and would you address that i will i will address that very quickly your honor in the medical context the plaintiff must identify serious medical need of course and that the defendants recognize it and disregarded it what this record shows is that there is no allegation and no proof of any custom of inadequate care by the county and as to met my hand in action in their vidual capacity they can only be liable for those things in which they were individually involved or are directly over lot with regard to this young man's medical care he made sure that he received both his psychiatric medications and the medications that his doctor treating him for panda's prescribed and he i am struggling with that because i look at the record and  i'm looking at the factual factual admissions that it was that the judge on november twenty six said that anything associated with the pint of drugs after trying to get the date straight after miss harris had brought medication for pain and she was arrested and then the next day she and the doctor immediately writes a letter that  struggling with that because before the doctor had given the mother the medicine and subsequently wrote a letter that said you can't stop giving him this medicine it's really important that he stays on his medical nobody does anything until the mother calls on december two and says you aren't given him his medicine i mean i'm struggling with that because magma hands answer to her was will you bring it and her very reasonable answer was no i won't because the last time i brought medicine you arrested me and then they get the madison tell me how this is taking care of his doctor ordered and he needed medical needs well in your honor the only medicine that the record would indicate that there was that kind of gap is is the clonopin and the testimony from the detention staff is that this particular medication which the court has reviewed enough in made cases to know that those types of medications are not on a detention facility or a jail formulary they're usually just cut off but in order to accommodate this young man's medical needs he was allowed to continue to take that it had been brought about prison cases in which the prison medical staff has taken over the responsibility of the prisoner comes in and says here's my vial of medicine  prescription and then the medical the prison facility takes over that responsibility and make sure that those meds are provided unless of course the prescription has expired which here it had not so help me understand why we have a potential deliberate indifference klein your honor that the testimony i believe will show that when the medication got low that the parents were contacted about providing more and i will agree there were no record if they had i did not see that i understood that she was the one who st said oh my goodness it's december two and since november twenty five or twenty six he has been out of this medicine please get it from the record is not entirely clear as to why ms harris made the phone call that she did but the phone call that she made was actually to the administrative office of the correlates to tell he to obtain the medication there is general testimony and i apologize i cannot remember off the top of my head which detention officer testified about their person calling the parent and ms harris that detention officer testified that he or she had called miss harris as to the twenty six and the twenty said i cannot say that with certainty your honor however as to the clonopin there must also be a showing that there was some harm that resulted ultimately to the child and he was seen by his own personal psychiatry east on december th just a few days after the was was back being administered on a regular basis and she indicated that he was doing much better and the officials that he was screaming and yelling hitting himself in the hated acting out in sexual way stripping it was clear her psychotic december nd there's no indication that not receiving that single medication resulted in that he was actually receiving all medications prescribed by both of his physicians during the times that those behaviors were documented although his mother reported similar behaviors when he was outside detention and the detention staff reported similar behaviors in previous instances of detention as to what his psychiatrist knew this is a different situation then the case that was regularly talked about in which the treating provider was left ignorant of what was going on with the child or with that in that case the inmate in this case j h was face to face with his treating psychiatrist and her record documents that he talked about his sexual obsessions to her that day that he talked about the size of his cell and his boredom and tedium from being in that single cell that day she did have information about what was going on with his conditions of confinement and she also had  that williamson county reported that information to her it does not your honor we have seen county reported that information to the guidance center psychologist who evaluated j age in the facility four days after he made the l it evaluated him for competency to stand trial the yes and this this court has consistently and post kingsley decisions appear to apply both prongs of the test and in fact the plaintiff in their brief conceded that both prongs of the test should be applied and it is clear from the record that neither mr matt my hand nor ms agent recognized a serious medical need that was going and addressed in fact what they did was in this very small facility that candidly it's clear it was not equipped for this of long term confinement and long term is relative a little over a month confinement that this judge ordered with regard to this particular individual they were doing the best they could and they tried to comply with the doctor's orders amidst receiving very unreliable information from mother and when you apply the subjective test as well there's the there's simply no proof in the record that would suggest they deliberately disregarded the serious medical need and in fact when he was released  detention and saw his doctor the day after she felt he was doing better if any treatment that he was receiving was a serious medical need or was not receiving as a serious medical need it's it's questionable as to why after he was released from detention his parents for months did not seek any counseling and did not change his medication regimen his mother did testify that on a number of occasions she completely taken him yes st of all i have to say that the statements made of fact by counsel as is one of the reasons why the facts are so critically important and disputed in this case for instance she talks about all this horrible aggressive behavior of this child previous to this one incident and yet this is the saudi had put him in a dorm for twelve days in october and with no incident very she talks about that what what was the facility to do they had the option of oh yes maybe you can tell me there's a rd option but they had the option of placing this juvenile with other juveniles were you to demonstrate record of threats of violence to others or putting  other kids there are other but a number of other kids there are other juveniles there is sometimes yes and sometimes no but he had been in a dormitory before without incident for twelve days and there never been a problem you is one of the general population or on his own those right along that the one incident that they accused him is is under dispute that it really happened they had videos they never pulled the videos i mean we truly felt that they did that intentionally to punish him and so those kids left so it could have been just a bad mix of kids i mean they even admit that when they talk about their housing option sometimes we just look at the mix of kids to call them but they did nothing to get him any treatment either if indeed this was a mental health issue which they had plenty every time they had documented this child entering the facility that's an important part of this too by november th he had had intake of four times three times in which every time they had indicated that he had some mental health there's a reason why would why the president your honor i'm not sure i'm i can answer that i do want to say i did look at i pulled a case that was actually put out by the th circuit court on november th two thousand and eighteen which is the same day i filed my brief this is not recommended for full text publication however it does what i'm going to provide a cite reported authority and it says recognizing that officials do not readily admit the subjective component of deliberate indifference to inmate health or safety courts may infer from circumstantial evidence that a prison official had the requisite knowledge the very fact that the risk was obvious may permit a fact finder to conclude than an official was court the judge had said that he needed to remain in isolation during the investigation the judge when deposed that she intended for the child to be out of his cell several times a day the district court granted granted absolute  mehan for leaving him in isolation for the next twelve days and we think that that needs to be narrow and she was very clear the detective came in one day a couple like the day after the court hearing and they kept him in solitary basically twenty four hours a day cut off from his parents cut off from contact with others so we believe that that was too broad that it should not have been granted to williams and county a of their total lack of policies and and procedure as to what they would do with a child in that situation i thank you very much and we do ask that you reverse the district court decision thank you ok counsel thank you for your arguments this morning very much appreciate them the case will be