indifference which is that the fed it was subjectively aware of a substantial risk of serious harm and that she disregarded that risk that decision was an error because multiple points in the analysis that issue court either disregarded evidence that was properly important to place this case in some context in this court's recent decision and marbury really helps with that and that decision was came out last august and what that decision does is it distinguishes between just the in the court right now i'm talking about the subjective problem of the deliberate indifference and houses what marbury does it talks about there's two different types of threats and risks that can be posed in prisons one is a general general prison condition cases judge focused more on the objective problem the deliberate indifference and that's where i'm having more of an issue and so i just only tell you that to maybe focus you on that but i don't want to cut you off from the argument you're about to make sure i mean if the entire panel is aligned i can only speak for myself trust me he does i think that below she's done the exact same thing that the defendant caldwell did and basically said that i would have done something different if i had no that's not my question because that doesn't go to the objective standard objectively titchy do nothing objective the she did nothing i mean she how is that the case where she seemed to credit what they said suggested she will look into it told them that they were already thinking about doing a move said please go back to your cell which he knew was a lock cell and where he was individual other words they weren't in the same cell so that she can complete the count and conduct an investigation and ninety minutes or so later the incident happened how was that nothing i was at and ignoring like happened in caldwell and rodriguez the cases you're discussing so in rodriguez what the prison official said in that case is that somebody tells me that my life is in danger that there's a death threat against us and that what i'm going to do is i'm immediately segregate that inmate and until i can resolve the threats not quite my question though how is that doing nothing how did she do nothing with and with if the facts are as i just stated and she she could then there's no way she could have done anything that was less helpful than what she did of course you can't we know that because the cases say some of them laughed at them and said no i'm not doing anything or completely ignored weeks and weeks of of of of in treaties to help this is not that this was assault one time my wife and teenager said i got your back so they're going to credit it i'm going to look into it go back to your cell where you're not with that person so that we can conduct the count that i'm in charge of right now and then within that time frame the incident happened that's not nothing isn't so i mean she sent him back into the prison population with an inmate who was under trained and available to attack and this is what has count down right it is i mean they're selling this as a controlled this officer would have every reason to believe that there are officers in the prison who are supervising inmates as they return right so the it's the assault did not happen during count time it happened after count time and that's there's some ambiguity in iraq i mean but her but but but the order to go back to your cell during this countdown that's a reasonable response in this circumstances and that this is this is something this is a controlled event and a prison go back to yourself that i mean she directed him to return to the do and count times taking place i mean she didn't do anything to protect and to keep him in confinement african time concluded that i mean there was a point when she had to do something more than i mean say hey while an investigating this you can you know wait down there in this room dorm where you know inmate taylor is available to us all you and then let me try to get at what they're getting at in a slightly different way what evidence is there in the record to show that it was an objectively unreasonable for her to wait until after the count procedure had been completed and i understand you're making an argument that she waited again after that but what is the evidence in the record  immediacy of the threat that required her to suspend everything and to handle it right that her own admission i mean this is her declaration in the district where she says if i felt that mostly safety was at risk following the hearing i would have immediately investigated that risk and arrange for a move separating taylor mosley and was it what is it that that's big what does it mean to immediately investigate i mean the same thing that he she did immediately investigate this is what they said in the defendant and called can we break that down a little bit even further to hone in on that she said after if i felt after the hearing right see what she says right now that she hadn't heard yet about the threat after the hearing the hearing with perfectly fine she didn't think there was anything wrong after the earring if she felt that the hearing there was an issue she would have investigated that is far different from what we have right here right you know that could be the inference that i mean if that's what it says and i think that's drawing inferences in favor of the move it in this case i think if you draw the inference as in favor of an object of standard we've got to figure out whether it was reasonable here so i mean if you look at rodriguez and you look at caldwell i mean this is this would be the st case th defendant in this line of cases involving specific threats where there's been a specific an argument by the movement that not taking immediate action and by immediate action immediately segregating the two individuals but there's a few facts that separate us that make it a little different from a what is the time gap so it's such a short time unlike those cases where there was over and over and over again requests that's more than the other is again it doesn't seem to me and again this is only i can only speak for myself but this is a do nothing case because if she did something now is this was something effective obviously not you got injured but effective is not the standard the standard is did you act reasonably under the circumstances and given the timeframe given the impending count given that she didn't think originally that there was an issue to begin with and only st heard about this is can we say that subjectively reasonable in every single case and if she did nothing to ensure a safe passage back to the cell block i mean whether th timeframe that happened i mean other i mean she said go back to the cell she took no action to ensure a safe passage back to the cell she did nothing to make sure that i mean obviously we know that he was not secured  because he got assaulted didn't she know also that before during a threat the the inmate who the threatening inmate came into your client's cell said i'm going to kill your client said get out and you got out she knew that fact injury so i did not clear whether she knew that or not from the record well she clearly knew that he was threatened and yet he wasn't attacked at that moment why know that she knows that he was threatened then now that she knows that i mean robert leonard was in the cell he had obviously heard the threats as well and he went with her to report the threat and that apparently the records says that at some point after that altercation the morning he made taylor was growing increasingly agitated was spreading around the room like i'm going to kill him i'm going to harm him other inmates are hearing it we have grace and taylor also cements a declaration as bad robert leonard hears it and then goes with him to report said this is actually a serious threat and he he's going to act on it and he went and corroborated the circumstance to her it which at officer hearing that hearing say hey multiple inmates are saying that there's a death threat against him it's life and i actually don't know that you say that count time is a secure environment the government has never made that argument they've said that they couldn't i thought there was evidence that that what the guard did was it here to prison policy and that it would have to be an extreme situation for for the guard to deviate from that policy that what what the guard told him to do and returning to the policy was in accordance with prison policy so with respect i would say that's drawing inferences in favor of the government there's nothing in the record that suggested it requires extreme measures to deviate from countdown policy that says if you're going to depart from countdown policy this is how you do it when you try to keep a constant net and there was evidence that said nothing short we have the guidelines and evidence and if we have evidence that those guidelines were followed those show that countdown is a lockdown situation don't we so i'm not familiar with that i mean i would have to reorient myself to the record but i do not believe that i mean it's a complete lockdown  obviously he was walking freely through the cell when he was assaulted by everyone here pretty like him is unclear whether it was pre or post but before you sit down the concern obviously is that any time an inmate makes of reports a very serious threat if something happens before the prison officials can react then there would be a constitutional violation that's the concern and so there has to be some evidence that it was unreasonable for zachary to wait about caldwell and rodriguez i mean what those cases establishes the need to take immediate steps and that's what i mean the defense in caldwell didn't dispute that once we were made aware of the threat returning him back to his cell or into a spot where he could be assaulted isn't reasonable and i think that that's clearly established that by that time that you have to you cannot put the person in a spot where you can be assaulted once you know that there is a substantial risk of serious harm and you know what exactly happened during count time when count time occurred when he was assaulted is not entirely clear from the record but what we do know is that nothing was done to prevent them from being in a spot where he could assault it may have been for two hours it was a two hour assault it's not like this is just like a minute or two that he was hanging out down in the cell and he was he was beat for nearly two hours and no prison guard was around to do anything and so whether they comply with counting policy or not i  just i don't think that that can be an objective a reasonable response to leave someone in a position where no guard observes a two hour assault with a lock and shank you know in a prison cell ok i was treated thank you you've saved three minutes for  he failed to produce evidence to show that she was actually aware that mr mosley was faced with a substantial risk of serious harm at the time a threat was communicated and that she disregarded that threat in an objective really unreasonable manner according to the district court's order should be affirmed and i want to mention that even if mr mosley producer of this court found that he produced sufficient evidence to raise a disputed issue of fact on the underlying  amendment claim he has not met and cannot meet the demanding standard of showing that existing law at the time of the incident clearly showed beyond debate that lieutenant zachary's conduct in these circumstances was that if if assuming that zachary is aware that there's a serious threat of harm here a death threat so it's clearly serious why doesn't she have an objective obligation to ensure that mosley is protected from the moment he leaves her presen i think your honor that the two those two prongs are connected and i think it's hard to disconnect them as as your honor mentioned she does have to be actually wear of a substantial risk of serious harm well let's assume that she's aware of that ok seeming that she's aware of of risk of harm which i think in this case we can say she's aware of some risk of harm but even assuming she's aware of a sample substantial risk of serious harms the court looks has to look and does look in prior th circuit precedent at the circumstances what is she aware of what does she plan on doing and what does she do and in this case what we know from the record is that after being informed of the threat to mr mosley and again i'm setting aside whether that gave her actual knowledge of a serious risk of harm which which i do not believe it did but even assuming she did not do nothing at all so what she did was she explained to mr mosley here's how many handle it i am he was we're looking his counsel is looking into moving him anyway he i'm going to send you back to your dorm but it is count time so i'm sending you back to the dorm right now which is count time count time in this is the evidence is in the record the s o p s to what count time amounts to count time it says in the s o p during count time inmates will remain locked or under close supervision in the area in which they are counted in till the count is clear an inmate shall be required to stand at attention by their bunks or cell doors during standing counts so yes she had a response a responsibility to respond object reasonable manner but she sending mr mosley back to a dorm in which count time is about to began so there will be a significant officer presence and she's aware of that what about his argument that the assault occurred for two hours and it was ninety minutes unclear from the record how far after count time occurred because it's unclear whether there was exactly when count time started case it seems to have started shortly after their conversation it's unclear how long  lasted and that as far as the length of the attack mr mosley testified in his deposition that it was between an hour and a half give me a two hours and that inmates kept shouting that the cell door repeatedly to avoid officers from noticing that anything was going on so although he pressed the button apparently to leave the cell other inmates in the dorm kept shouting it for him so that's the testimony so it is  clear from exactly how long elapsed how long the fight occurred and how long a lapse between the conversation to sack rehab and the start of the fight and it seems to be anywhere from thirty minutes to an hour but but there's but that's not all she knew when sending him back to the storm she also knew that this storm because mostly testified as much this storm is a dormant helo's self locking cells in mr mos testify in his deposition that an inmate can generally go into so and activate the lock and that other inmates aside from their roommate of course are cellmate that precludes them essentially from coming into th e and i think there's a few other things that are important to point out in terms of her reasonableness and what she knew because her reasonable guess and her response is a function of what she knew at the time and she also knew that approximately an hour and a half had lapsed since this hearing that according to mr mosley was what sparks mr taylor's anger and nothing had happened in that time she knows that mr mosley is approaching her walking around the facility he's not locked in his cell he didn't he didn't lock himself in his cell and her perception likely is that he wasn't afraid of an immediate and substantial risk of harm for mr taylor because he didn't act as if there was one so an hour and a half passes he approaches her he doesn't lock himself in the cell he and i think importantly both to whether she perceives a substantial risk of serious harm and to the reasonableness of the of her response to whatever restraint did perceive importantly when she did speak to mr mosley and say here's what we're going to do we're going to send you back to your cell it's count time you're about to be late for count time i'm going to look into it and it looks like the council is already thinking of moving to him he did not push back on that and so what was clearly established by rodriguez and caldwell was it that when there is again subjectively knows that a prisoner poses a substantial rick yet fails to take any action to investigate mitigate or monitor the substantial risk i think certainly caldwell sets forth that standard and i think caldwell if you if you look at the entire case and you look at what caldwell relied on which is catone in finding that qualified immunity was a political it's not such a broad finding it's not such a broad standard or even if that is the broad standard but even that which i know you can test you think it should be more spec specific i understand that but even that doesn't state that it has to be immediate it just has to take anything that the failure to take any action is what causes the th amendment is clearly established right i agree with or without your honor without conceding that there might be certain circumstances where taking no action does not violate of course absolutely yes so to call and i'll commit over there for a minute because i think qualified immunity is an important aspect  nine as expressed in the tone in the case you talked about clearly established that the defendants total failure to investigate or taking any other action to mitigate the substantial risk of harm posed was what caused the th amendment violation what would what would trigger a deliberate indifference finding right yes the court did state that and i can understand how you again you think it should be more drilled down to the facts as opposed to the general but but even under the general there with the facts here have triggered that we don't know what officer clearly have known that doing what what officers actually did here would would be would be deliberate it would be deliberate indifference absolutely not and again i don't think we have that total absence of doing anything in this case so just on using that language it doesn't apply here but i think the other thing that that is a critical distinction between caldwell in this case is that the officer who know that there isn't has to have be actually aware of a substantial risk of serious harm what we in caldwell was a situation where any officer would be actually aware of a substantial risk of harm for numerous reasons that don't apply here mr pence an inmate penson who who ultimately attacked mr caldwell was a known violent offender he was housed in a special unit for known violent offenders he had a history of assaulting other inmates he had told the defense one of the defendants i don't want to roommate to which the defendant responded defend guard responded i don't care than kill him he started a fire in the cell in the presence of mr caldwell which threatened his life and another critical fact when after mr cole was rescued from this fire he stated to the defendants i will be killed if you put me back in that cell i'm afraid of him i'm afraid for my life none of that is it is parallel with this case at all we don't have a is aware of any even mildly violent behavior on the part of inmate tail and that is a distinction that's very important between caldwell and that distinction also applies to rodriguez because in a robbery guess we're dealing with threats from members of the latin kings a gang which the prison in the record indicates had it's a terrible problem with a terrible problem with violence so so that is a factor a general factor i think these cases on their on that on their facts are clearly distinguished but even if you look from a broader perspective you have a situation of cases where you have defendants you know you're dealing with a violent offender so that informs what you need to do and doing nothing in the face of a vata threat to kill someone from a known violent offender is a totally different situation and it's what we don't have here and the nd way  think that these two cases again from a broad broad level cannot clearly establish the law in this case and are very distinct is in terms of the the threat that was expressed to the defendant to the defendant official in both caldwell and rodriguez the defend the plaintiffs made clear i will be killed if you put me back in that cell i will be killed if you put me in general population in rodriguez on multiple occasions mr rodriguez said i need to be transferred or i need to be placed in protective custody or i will be killed and he in fact was attacked within fifteen minutes of being released into the general population it was i understand it you would say that absence in this record of officers response was reasonable yes i think that informs both of those elements that are required elements and i think in this case the absence from mr mosley i go this case as the ma observed in the order this is a case where the evidence isn't even sufficient to show that mr mosley felt that he was an immediate risk of substantial harm even vote mr mosley wasn't she told he told mr taylor whatever sean get out of here  clear it up later he hung around in the dorm for an hour and a half he had he goes up to paul and happens to seem a sacr coming out of her or her room so he approaches her at that time whether he would have otherwise it's unclear from the record and with and w says here's the plan here's our approach he doesn't provide any any pushback he says nothing similar to what caldwell and rodriguez say which is i am afraid for my wife doesn't the record indicate that when she sent him back he did say something he did say when she she did say to him i've got your back don't worry about it he said well how can you have my back when you're here and i'm there right so i did only that may show she and he was a risk of it was aware of some risk of harm but an awareness of some risk of harm is not sufficient for a deliberate indifference claim it has to be an awareness of a substantial risk of serious harm and mr mosley's actions when you look at the rest of that interaction show that he did not he even he did not have that appreciation of any substantial risk of serious harm certainly to then say that lieutenant zachary should have been appreciated an arrest that that mr mosley did did not appreciate and he's the one who received the threat he didn't communicate that to her the main caldwell did in the main rodrigues did and i think that is a substantial in an important distinction a material distinction between and among those cases and it goes both to the fact that there was no wait the moment violation shown here and it also goes to the fact that there is no clearly established law that shows and these circumstances  actual knowledge of risk of serious harm so we would ask that the court from the district court thank oh you've saved three minutes crony i had an extra three on top of that quickly in three minutes i do think that the argument that we've heard is perpetuating a lot of the same problems that we believe that the dish of court is committed in terms of drawing cell probably sometime around one thousand and thirty dollars and he reported almost immediately after that and said you can draw that inference on whether or not he gave pushback he did get pushback as appendix page three hundred dollars he said if you send me back there how are you going to protect me and she says go on back in we talk about whether this is a do nothing case and so i know that i've argued that this is a do nothing case even accepting the premise that this is a do something case what she did was she sent him back to his cell and it either does assault happen before count time if it did there was a two hour assault in the middle of count time account time isn't very good so if it's after count time then we're talking about a period of about four hours but to get there and not say that i believe that's reckless disregard how do i find then that's intentional and knowing under the laws exist and at the time based on those those general statements from caldwell and rodriguez that i quoted earlier so intentional knowing is not standard in the standard is you have to it has been clearly established objective we had a reasonable response on qualified immunity is talking about is that she knows that there's a substantial risk of serious harm that there's a real death threat and then call rodriguez are going to stablish that you cannot put the person in a place where for two hours you can be assaulted without any prison guard being within earshot  them and that's going to be an objective in reason or sponsor but i would also say that you look at back at hope and i recognize that you know hopes as you can also have situations where the constitutional rule applies to a set of facts with obvious clarity and prison guard and rodriguez said if a prisoner tells me that their life is in danger i'm going to say immediately i'm going to segregate them from the us from the assault and i'm going to investigate and make sure that that risk has abated that's what the prison guard s rodriguez that's what miss lieutenant zachary said here is that if there's a risk i'm going to end mediately segregate them and so nobody know l say with obvious clarity whether there's a material or similar president whether we want to you know quibble with the facts of caldwell rodriguez no prison guard reason a prison guard in the to zachary's position could believe that sending him back to the cell and we know she didn't investigate because there she certainly didn't do anything in that three hour block that he was assaulted for two other repeatedly with prison apparently people outside the cell shutting the door on i would say that's an objective and reason more sponson any prison official in that position would know that  that time thank you mr hatchett and as you mentioned earlier you were court appointed and i want to thank you for accepting that appointment and discharging your responsibility very ably this morning