morning your honor said my name is linda sheffield and i represent patrick patterson i believe the most important aspect of this case is the lack of counsel from mr patterson early on he recognized his inability to actually present his case without a lawyer this is not something where somebody knew what was going to happen this is a case of him being in a high security prison there is hazard there is risk it's pretty much under spewed from it's it depends on which order your reader which stately read but basically he had had a scuffle with mr black earlier that day he said they thought everything was fine they went to bed in the middle of the night black attacks them and take called sheila campbell from the crime case to find out exactly what it is that you would need to prove in a case like this and that's why i filed her affidavit she explained all of the different areas that a lawyer would be allowed to go into which patrick patterson recognized in his motions for counsel if you read his motion the first motion he says i'm never going to get granted access to any of these interviews and then it is his next motion he's basically saying the same  thing and the government was playing games with him they weren't letting him see the video it took him five months to get the c n n complete video so based on what sheila campbell told me and based on what was presented in the crime case there are getting themselves they don't get to see the design of the present there is a security problem with that so when you are trying to figure out what happened in an incident like this and when you have guards who are trying to look into different barracks in this case there were fifty people barracks the guard was at one of his stations which was a hallway he had to bear it's in a hallway which he had to monitor but there was no indication in the record as to exactly what he can see and there was nothing in the record as to why whoever made these staffing requirements decided that one guard could adequately  well i believe he tried to do that but one of the problems in this case also for mr patterson was everything that he said from what he claimed has been misinterpreted and not everything he said as some of the answers that he gave were misinterpreted by the state saying that he would had to personalized the state of the record is that there is a tape i understand that it's from what i read it's possible that the tape is not complete from what mr patterson routes  i don't know the answer to that question i don't know the answer i do know that mr patterson as to see the tape i don't know if it was monitored there was testimony that nobody saw the incident so if whether the tape was supposed to be monitored we don't know that this all has to be developed and based upon what what i learned from well talking what i mean didn't he have the access to discovery in i mean he could have you know submitted in iraq the tories are asked for diagrams or things like that well he he did send out in iraq a tour is very in artfully and he got you would ask his compound questions and then the warden gave an answer yet and that was that that was that he didn't know how to do it and when you think of they keep saying well he had access to people he provided affidavit well like he says if somebody came by his cell who was there that night he would ask them if they could give an affidavit and then he would get it he did not have access to interview and if the officers in fact one of the state's problems when they said this was such a complex case was the fact that these officers five of the officers who were still current employees were other prisons so mr patterson he didn't have access to interview officers five of them or gone by the time this was was ready to be litigated and one of them excuse me was no longer an employee so he did he did not have access to anything that involves security and he said he didn't have access to interviews it in fact in his motion he says he didn't have access to those things turning to the merits what what evidence is there that the defendants were subjectively aware of a substantial risk to the prisoners well they they would only be aware of a risk based upon the fact that they have a bunch of high security inmates there is me and based upon the fact that they're they're all there and they're not very well  monitored but if you can you tell me why they're in what's the evidence that they're not very well monitored that's the problem with the record that is the problem with the record we only have what mr patterson is saying but we don't have to shift assignments and we don't have any diagrams don't you know that some of it sounds like your whole argument as the attorney the appointing that an attorney can start are you willing to concede that the record as it stands summary judgment was proper i'm willing i hate to concede that your honor because i feel like the summary judgment was so improper because they never gave the man a chance to prove everything the findings of the court when you take a look at this order that the appointment of counsel did not provide a sufficient reason for the court to reconsider that ruling after paterson and a second motion go through everything he hasn't been able to prove so the court had they had to know that there was not another half of the evidence in the record because patterson was telling them that he was saying i can't get the stuff i can't prove my case i mean obviously he couldn't prove his case because he didn't have a security expert he didn't have access to the staffing of the reports or the interviews or the videos he couldn't interview anybody when you look at how we prepare cases today and how patrick patterson got to was one i now you know he could have gotten the reports  discovery request in here he did discovery motions he says and in fact he says in his counsel request it's a no brainer i'm not going to be given access to to do any interviews of eyewitnesses so he's not going to be given access to these reports and his second request for counsel he go through that document number sixty nine he goes through where they're saying that he admitted to different things he's saying i didn't admit to different things and i don't know exactly where it says that he didn't get reports there was which they refused to give him some information because i kind of information would not be given to in may that's what i recollect yes that is correct i think that had to do with the number of assaults the frequency of assaults and things of that source my recollection magistrate judge also intimated or said directly that it would be speculative to conclude that some particular level of staffing would have prevented this incident anyway so what's your take on that i mean as i recall the record is that this gentleman was attacked for about two minutes and then left to his own devices and then the attacker came back and attacked him again and that the entire incident took monitoring a barracks there is a monitor there even if they're not physically present there should be a monitor somebody should be watching constantly they're called yeah there's a requires constant watching the constitution requires that these if you're going to lock them up that these inma don't know that you can say that this is helpful isn't there evidence in the record showing as far as the affidavits are concerned that the officer on duty could not even see the side of the attack from the observation that's correct unconstitutional unless they are visually monitored twenty four hours a day something this court has never required and something the united states supreme court has never required even considering attacks on inmates in fact this court has held repeatedly that officers are entitled to qualified immunity and eighth amendment cases and surprised inmate attack just just like this when reversing district court's decisions to mess perhaps one of these cameras is that right not to claim no your honor and in fact the record the district court found that the record supports that the officer assigned to thirteen and fourteen barracks can visually monitor and dead visually monitor the bear every half hour all over all over the barrack yes your honor from the control booth and the hallway and what the district court's decision makes clear in the record made i a factual dispute on that question or not there is not a factual dispute your honor read from the affidavit mr patterson maintains that his particular but could not be viewed from the control booth but the undisputed fact in the record indicates that the entire hallway where thirteen and fourteen bear situated it made of glass and that the officer monitoring both of those bear can view each of those barracks from the hallway which is made say and that's that's not an accurate reflection of the record mr mcgann t has not put an affidavit in the record but mr patterson did participate at vigorously and discovery and he propounded discovery with able to view both of the barracks thirteen and fourteen bear either from the control booth or the hallway and that at the time of the incident mr mcgann t was an either of those two places which is where he was supposed to be submitted by the end made are simply irrelevant because they provide hearsay testimony or purport to provide hearsay testimony about other officers allegedly not performing security checks i believe in two thousand and eleven and those affidavits did not were not relevant to the march sixteenth incident they didn't they did not speak specifically to bear thirteen and more important portly the undisputed fact in this case demonstrate that bear thirteen and fourteen was properly that officer medan t was the officer assigned the entire time to barracks thirteen  both of those areas and inmate was involved in an altercation and subsequently killed on that evening and had the state brought a claim against the officer in the control booth alleging that he failed to to take notice that being made with being court granted qualified immunity in that case  whether the staffer who i was were sufficient to meet constitutional requirements that the prisoners be protected from obvious risks and that  that's the whole case is that no your honor and in fact the obvious risk there is no obvious risk here in fact this court should look to mr patterson's testimony where he testified that he has been housed at the bar unit for nearly two decades eighteen years and in those eighteen years with the exception of one other minor physical altercation he has had virtually no problems being housed at the bar unit that's important your honor because that evidence supporting that in fact that i'm well i think that at least some of the inmates said that i don't believe that there was an inmate that said that and that the entire area could not be viewed mr patterson claim well on the monitor as opposed to walking down the hall on the monitor yes oh ok i misunderstood your question ok so what's the source of that oven is it only the inmates will you will you react to your question yes we have walking down the hall is one visual way seeing another is the monitor correct to the cameras of some sort but yes your honor ok i believe there's evidence in the record that the cameras don't cover the entire area that there's a blank area right i'm not sure if that an allegation but the video camera the video that was submitted in the district court shows four different angles of the barents both ways to judge arnold just read from the affidavit a few minutes ago where i think the the plane of himself said that the monitor are not monitor only i can talk i see so it's just from the control booth is the source of that the source of that is the the prisoner's right yes here mr patterson is did the did the defendants dispute that at  all or do they concede that if there are areas that can't be viewed from the control booth i don't believe that was addressed in the district court record i believe mr mcveigh anti the record indicates that he can be collectively either in the control booth or in the hallway that he can view both thirteen and fourteen there on the on the question of appointment of counsel you saw to you were the state's sort of an extension one time citing the complexity of the case yes th this court considers whether or not the district court abused its discretion in the district court given vast discretion in determining whether or not and that is entitled to counsel in a civil case it's not whether or not the  factual legal complexities in fact mr patterson's response to the motion for summary judgment both motion for summary judgment indicate that he was able to make references to the record he provided citations to the law he writes specific cases that he wanted the court to consider and ruling on his claim his pleadings are tight he makes adequate reference to the record the he was not required to present a novel legal obvious risk of harm to mr patterson on the record before the trial court and so appointment of counsel is simply not necessary he thanks no procedural hurdles he was able to file many document that had been considered and ruled upon by the court magistrate's recommended just position of this case in footnote six it says for security reasons a correctional officer is not allowed to enter a barracks alone wouldn't that show that there's an obvious risk here that was well known to the defendants not to mr patterson to staff because the security officer would be outnumbered that if a maximum security facility with open barracks was actually not conducting visual prison does not necessarily mean that there is an obvious risk of harm there has to be objective knowledge of a risk here there is none at that prison officials were not aware that violence wasn't granted mr patterson did not report the previous altercation between himself and mr black there was no way for any official to know that he faced any risk of harm on the day of march sixteenth and your honor i'm out of time but i am happy to answer for the question i thought there was  i think that was an excellent point that judge greg made that if officers can't go into the barracks alone obviously there is some kind of a danger that exists in a dormitory situation then they call a lot of force in to take care of it yes well if there was a monitor if there was somebody monitoring what was going on in the barracks then somebody would have would be able to see what was going on it was an the one point i really want i wanted to make also in the opinion when the court criticizes mr patterson for not producing any evidence that subjectively the defendants were deliberately indifferent that is the whole problem here that no he was not allowed to put in the evidence in the record because he didn't have access to the record he didn't have access to anything that was important where he could have proven his case so saying well you can't answer i'm out of time  we didn't put in the evidence well he the evidence he was blocked from in the evidence so i hope that you will find in his favor thank you very well thank you we think you appreciate your taking this case and and both of your arguments today the case will be submitted and decided in due cour