next matter is beaten versus franklin tennis how a morning court's appointment order asked us to brief to specific issues on this morning i would like to address those two issues in the order the court offered them first the district court abused its discretion or refusing to allow mr beeton a ten day extension to file a counter statement of facts in opposition to summary judgment without making any reference whatsoever to whether there was excusable neglect in the late filing magistrate judges may fifth two thousand and ten order simply called the memorandum an affidavit in support of late filing quote unacceptable such a motion for late filing is subject to the excusable neglect standard of federal rule civil procedure six b but the order makes no reference whatsoever to rule sixty or excusable neglect  no and there's no explanation was was there any explanation i think there was no explanation of it the the order defend them unacceptable for the reason that the match the judge felt that the the memorandum an affidavit presented in support of the motion stated a different basis than the original motion did this pioneer and this requires that there had been a consideration of certain factors here ultimately the motion for late filing only included reference to oversight by counsel which i believe is why i read a very good excuse it certainly is certainly very incomplete your honor and that is why i the measure judge  ordered a memorandum an affidavit that memorandum an affidavit included a sensually that the pro bono counsel was working with a hundred and eleven i believe paragraph statement of facts and was having difficulty completing it on time facts had been given weight in summary judgment alice's those were the three points essentially made by this record counsel can i ask about the the finding by the district court that the withdrawal was not a result of misconduct on the part of the defendant's evidence was put in the record as to how plaintiff thought he was deceived  here and how his men his condition may have led to you know his lack of clarity understanding and yet that the district court made that as a as a factual finding seems to me your position on that is is pretty strong but can you find in the record a justification for that determination just occasion for the determination that he did not  i mean obviously it's more of a question for you or your opponent but i thought i'd give you the first crack to know that's where and that's that's one of the essential issues with regards to with regards to exhaustion and to move on to to the summary luckily for my position the corrections defendants included as an exhibit to their motion for summary judgment which already includes a many points of mr de to be times deposition that create genuine issues of material fact and but page two sixty two sixty one of the appendix testified specifically that he was tricked with thousand paperwork with one set of documents being placed on top of another in order to have him sign the bottom one while thinking he was signing the top one  and starting at page one sixty eight on the appendix are several letters that he sent through the grievance system which specifically allege this trickery starting about fifteen days after the withdraw and continuing for several months  process it's clear that the there is a clear that the housing grievance and the hand and the and the other grievance relating to the assault and deliberate indifference who are and tiredly different regarding a housing right transfer but that had nothing to do with that had nothing to do with this incident and as i believe we acknowledge in our brief that actually had been resolved a week to two weeks prior to the opportunity to have the merits of his claims heard on a fully developed record i distribute on in his trial counsel let me just ask you question because that the district court observed it says it further appears that beat  protect claim i'm wondering if we were to send this back because the district court misconstrued the factual issue that we've come up with that again do you think there is a cognizable failure to protect claim here with respect to the padlock and the have all of the answers that we should be tom was deprived of an opportunity to present additional evidence that would have made this even clearer that we said find out an abuse of discretion i mean i'm not sure which way we go but what if one were to say the court was within its discretion and doing that is there enough evidence i believe there is enough your honor and i think the heart of it again is in mr b times deposition which is already in the record as a judge this is just investigated there is no prior grievances so again we have to look pretty much just to the deposition but mr beeton testified that the innate notice sharif had a history of violence particularly a history of violence against white inmate figure out what you owe your showers and means this may have some particular meaning to the prisons and ng i think the prison setting is the key to that your honor i certainly am not going to to stand here and argue that those fo in that context that they were temporal the two instances were temporally remote they were the christians and i just referenced was i don't think we nailed down the date but it was several months before the assault then mr beeton did testify to a more much more specific and violent threat approximately a month to a month and a half before the assault but what was in the record is that what he told prison officials about this in the record again is only the deposition testimony your honor but at this stage is certainly sufficient he testified that he told first about the shower incident that he told defendant porter i'll quote this look at this dude in here is talking about kicking my ass if i don't get out of the shower you are in regards to the second incident a month before the assault mr beaton testified in his deposition that he told again defendant porter as well as two other defendants are that quote this man is going to kill me he also testified that on that same day he requested a cell transfer this was an oral request there is nothing else in the record but it is in the deposition mr beaton has not and cannot prove that he has an eighth amendment claim there was no previous is risk of serious harm to mr beaton you cannot prove that  of that harm and most significantly he cannot prove that they drew the inference that he faced a significant harm welp if you see did testify that he told them and he testified that he requested a cell transfer so that put them on put them on notice oh of fear yet for his life right he put them on notice of the threats to him but my contention is that those on the merits can just about anything be fashion into a weapon in in the prison setting absolutely certain and i'm shocked to learn that prison and ministry just choose to use padlocks of seems to me not to be terribly surprising so do i understand that this may be a question i should have asked of a plaintiff's opponents counsel but are really two risks that are at issue here one being the risk posed by the exchanges between sharif and b and the other being a risk posed by the presence of have equals yes or i believe that to be the case and in your position is that with respect to sharif these even if there are threats are not previously were frequent enough that there's a risk there that would rise to a level that would put were aka put the prison it ministry toure's on notice of a significant danger that is correct sir and the other being that concern of well maybe maybe they should have done something about it we don't know the total level of the problem well we have his testimony to that and then we also have that person's signed declaration where he said he had no knowledge of the padlocks being a problem that they did not discuss padlocks being a problem at their meetings and if you'll notice mr beaton had this conversation with major morris after the fact major morris has to know of the problem prior to that well but you assume if if he had acknowledged that they were a problem maybe it's wrong assumption that it persisted but these are fact issues aren't they if they should go to a jury well perhaps or i do not think so i think i have very strong arguments to say that it is not a factual issue that should not go to a jury because again even even if he says that they were a problem what's the problem well that could be further developed we've already have his testimony your honor discovery has closed how are we going to develop it at a trial that they are a problem and presumably develop these things at trial somebody says not a problem he says it is a problem we have every every person i believe every person who signed a declaration said that they were not aware of padlock padlocks part me or any of the problem mr beaton's in testimony can at best be taken to be his argument or replace his case and then i have refuted that or my clients have he really must go beyond then of just saying well that's not the way it happened or right i told somebody he has to demonstrate some type of substantial sure if i'm going a few up i believe if i were standing next to mr b and i remember sharif and as described if you as a gorilla and if he was looking down at me and said i'm going to fuck you up sorry i have to say i'm going to fuck you up like perhaps be seen as a threat but even if even if he said that in that manner if you take that to be true it's a little disingenuous that he said that to mr sharif when nothing happened at that time it was a month and a half later that mr sharif actually assaulted mr b but as he and and and there's no evidence that we told the correctional officers about that said no sir none in fact all the corrections officers that mr beaton says he claims to have mentioned this to they they say it never happened even take the threat if you will on its face doesn't the prison context even require more from pointed on that because as you point out this is  people are often not pleasant so we does every single threat of that nature require that an over the warden represented some kind of immediate threat being carried out just something with the words i believe so your honor and i think this court has held that similar standard saying that it cannot be just a verbal threat there has to process i filed a brief arguing exhaustion and also arguing that there was no eighth amendment claim in that brief i made significant references to and included the statement of facts that in and of of itself should have highlighted opposing counsel that perhaps i should include a statement of facts or i should at least respond to those statements two extensions of time later opposing counsel files his brief in response making absolutely no reference to his statement of facts not he included references to the amended complaint and he also included exhibits with his brief in response now if he were going to provide a statement of facts if you truly thought it was included with his brief in response with the a statement of facts so the district i'm sorry the master judge says that i'm sorry procedurally then i after about ten days far my brief in reply and in that i make note that he has not responded to my statement of facts then and only then does opposing counsel say i'm sorry it was an oversight i forgot to respond to the statement of fact he doesn't say that he misread the rule he doesn't say that mine were too long and he doesn't say that they were half done i just  was there any prejudice to accepting late filing i think there is prejudice yes or you're on i'm glad you asked that it would seem innocuous you know what's another five or ten days to do statement facts first off there is a it's already been approached me three and a half years for the case to proceed this far memories fade evidence windows is lost people retire  but that would have been the same if it ten days earlier no sir actually the superintendent tennis was in the process of retiring at that time also it's a disservice to my other clients many times we have cases where i'm a strop everything for an inmate who the judge has vacated the order and he should be released immediately i don't think it's fair to that it ain't then for me to say oh well hold on spend another couple days in jail and i'll have to get to you in a moment we also have that sure that argument carious it may not be my strong but it is true that we have guardianships were inmates are incapacitated and incompetent that i must then attempt to get a guardian appointed for them that's very spur of the moment as well i drop everything else and try to save this inmates like we are just two weeks ago we had what would commonly be called compassionate release technically there is no such thing as a passive compassionate release if you read statute forty s ninety seven seventy seven if an enemy is terminally ill or seriously ill he can be released to a hospital hospice or a long term care center i had to attempt to have th image released through compassion to have him released outside of our custody to a hospice so that he could die with dignity all of these i do all of these things so it's a disservice to the other clients to say please wait and i think that client or i'm sorry opposing counsel did show bad faith and making the motion we i ask you quickly about one other point and that is  he didn't exhaust you could find that he actually did withdraw the grievance and he was under no undue pressure from defendant petitioner he didn't exhaust and you could find that he didn't foll the proper procedures if you look my argument against what you asked me your honor would be if you look at the process he withdrew the grievance whether he did so of his own accord let us put that aside he withdrew the grievance and then he writes a letter to superintendent tennis saying i would like to refile the grievance well but the presumption you're saying when he withdrew the grievance he says i was tricked all right i signed a paper and i was tricked i mean that so i don't think we can conclude that he voluntarily i mean we'd have to be totally making credibility determination at this stage and i believe that that would be  any anything else no sir thank you very much that you rule in our favor thank you very much mr holmes hallo you hear me just make three very brief points the first to address issues about misfiled paperwork or untimely filing i think as we as we brief those issues despite the plenary view at this stage  do not weigh against my client first of all though counsel raised that the grievance was originally filed on timely there's no question that it was accepted for final review that one of the guards was directed to investigate and that's the incident with the withdrawal was part of that investigation so i think it's clear that that has been waived furthermore the issue with mr b tons grievance being kicked out for a lack of compliance with what needed to be filed is really a matter of the state the last letter from the office of the grievance office denying mr b towns appeal to refile essentially apologize for that the reason for this denial is that you cannot appeal withdrawn grievance so i think i don't want us to get caught up in that the second point is i think the opposing counsel's discussion high writes the fact that this is a fact driven and fact disputed case i also know that as we preach that discovery regarding padlocks was being pursued and not completed at the time that mr b times counsel  sent his brief in opposition to summary judgment obviously the discovery deadline had passed but both sides acknowledge that it was ongoing that they expected additional depositions to be taken furthermore depositions taken no n evidence that mr b time had informed the guards about his second threat i believe it was a counsel started with no and then proceeded to acknowledge a factual issue he said no because these three defendants all had affidavits that said they weren't aware of it meanwhile mr beaton has a deposition in which he specifically said he spoke to all three of them about it finally my last point is that i'm not here to say whether mr b times counsel at the trial level did a good job or did a bad job or approach a summary judgment in a right or wrong way but the question here is whether mr b time should be the one to pay the price the reasons for late filing n itself is enough because that formed a basis for summary judgment that isn't often enough itself to reverse a growing on summary judgment thank you very much the way we thank both council for very helpful arjuna take the matter under advis