county to see sheriff john again is appealing the denial of coffee immunity to him the plaintiff does not cite to any factual disputes and the district court did not find any factual disputes myths that the district court to an agreed upon set of facts and reach the wrong conclusion about those agreed facts with regard to cough and immunity the material facts in this case are not disputed and those facts are that plaintiff was charged with a felony the plaintiff was classified plaintiff was screened under the prison rape elimination act screening procedure plaintiff was placed in a four person cell with two other inmates the two other inmates were charged with misdemeanor crimes plaintiff's two soul mates were not charged with violent crimes and had no history of violence the inmate who assaulted plaintiff was actually charged with a violation of probation and any earlier to appear prior to the assault a never told anyone that he feared for his safety and had not told the correction officer that he had any issue with his soul mates whatsoever so there are allegations are not really plaintive specific  they're just more of the generic overcrowding of the prison and your in your defense to that is that based on these specific allegations you can't show a cause or connection between the generic problems and the specific incident so that since this is an interlocutory appeal i wonder if you could comment on whether we even have jurisdiction to consider this cause ation element because generally speaking you think of as designed to preserve the right to qualified immunity but your your causation argument is less about whether there was a clearly established a right and more about whether  generic problems at the prison caused the harm and i'm not certain that we would have talk of taare jurisdiction to consider that type of causation element of  agree i would agree that there is jurisdiction to consider whether the facts of overcrowding arise to a lot the level of deliberate indifference or if there is a clearly established right about the liberty difference but that's a little different than the question of whether even assuming there is deliberate indifference the sheriff's deliberate indifference based on the overcrowding actually caused the plaintiffs injury and it's not butter one that seems more facts specific case we don't have that we don't know that's not entirely true i mean the case law says that it's the immunity question we have jurisdiction over and the question of whether there is a legitimate question of is not something we hear on into law to repeal i mean there are issues that we don't address on cases holding that the material for material facts relevant to the court's cough and immunity analysis are not in dispute or it were are accepted by the defendants as true then the court should take if an inmate has a sharing their bed some indication that the jail is not able to properly  overcrowded says the cell was not overcrowded plane of can neither carry his burden of proof connecting the assault with the conditions of his cell nor provide a constitutional violation relating to this incarceration  d your honor i would having represented in jails for many many years i would respectfully disagree that the fact that in maine has a shame means that the inmates are not being properly monitored there i mean there's simply no way for a jail to keep every bit of contraband out i mean that just simply doesn't happen of course it's the gels and goal to try to make sure that no contraband exists begin in this and i believe in this case it was a shower tile i mean there's just there's no way for a jail to be able to with one hundred percent accuracy make sure that no contraband such as that exists within the jail it's simple it despite the very best efforts of anyone i mean that just simply can't can't happen unfortunately but again the six circuit is replete with cases that there has to be there has to be causation between the event that occurred and the overcrowding or other conditions claimed about the point if there's another case that we cited dover to solve and county which had which has a remarkably similar facts although the facts are really more in favor of the plaintiff in that case i would argue in the doe vs solvent county case the plaintiff was nineteen years old weighed one hundred and twenty five pounds and suffered from a mental disability in case plaintiff was sexually assaulted and point of claim that the jail was overcrowded the understaffed security checks were not done often enough and the court held that in that case that viewing the evidence in the white most favorable to the plaintiff we cannot conclude that these conditions caused the assault so respectfully on a qualified immunity argument we have a case that is more favorable to the plaintiff as well and it is clearly established law and in that case the court held that the court held that there was not a constitutional violation that was a case and that's something that the court can i can look at it again i think the only thing the court has to be concerned with on a qualified immunity appeal regarding the question of jurisdiction is whether or not there are any facts that are in dispute i think the court can take a look at the facts and draw a legal conclusion related to those facts and this is a prime example of a perfect case for the for the court to consider qualified immunity because the district court didn't find factual disputes plan it doesn't cite any factual disputes and defendant states that we're accepting again all these all these facts are true where we are simply saying that the wrong legal conclusion was drawn regarding the qualified immunity analysis and again i think causation is a very important part of the the court's analysis because essentially you don't think there's any factual com pointed to the causation question i mean it is i agree that everybody agrees that the overcrowding one manifestation of that was that there weren't as frequent security checks as it would have been nice to have but isn't there a spec to the question of whether the infrequency of the security checks whether that and there's no proof in the record that the security checks in this case somehow caused or contributed to this incident again this is an isolated incident that occurs without warning and if the security check that there's not any evidence in the record that security checks in this particular cell in this particular day were not taking place at the time that they should but there is no there has to be proof by the plaintiff of a causal connection between inadequate security checks and what happened in this case in this this is an isolated incident that happened very quickly and there's just simply no proof that if a security check it happened every fifteen minutes that this plane of couldn't have had the same assault happen that occurred good morning may it please the court my name is lance baker i represent zack back for the plaintiff today i want to st start off by just i know the court doesn't necessarily like reading things but i think it kind of goes to the heart of the matter this quote comes from jim hart he's a correction specialist in jail consultant he authored the two thousand and ten assessment on the hamelin county jail in two thousand and eleven assessment on the one county jail he stated that no one knows the jail context better than those who manage an operate the jail but sometimes those who operate the jail lose sight of more staff is not always better when compared to working smart make no mistake about it the hamilton county jail is an abysmal decrepid overcrowded enqueue main condition that is dangerous and life threatening to essentially every inmate that walks in there at this point in time  i would st like to start off by addressing the factual disputes because nothing could be further from the truth the record is replete with several factual dispute first officer corps addressing the security issues there are at least seven years of tennessee correctional institute reports that address the security issues escobar and again the sheriff has been sheriff in hamlin counting since two thousand and six he continues to run for that job he's had the benefit of having at least fifteen letters addressed specifically to him by the tennessee corrections institute that shows that his jail fails to meet each year on an inspection and then reinspection the minimum standards set out by t c i the what's what's your limiting principle then as under your theory of this case because i think you would readily concede that the sheriff had no interaction personally with this with your current is it your view that any time there's and made  assaults the sheriff is essentially strictly liable because of the crap at state of this prison or jail judge murphy of course that i am not exactly arguing that in this case but isn't that necessary classification that he should be liable for your current injury i would think that that kind of legal analysis would apply to any and made on inmate kind of violence i'm so do you have a limiting principle that would somehow show that it's not going to lead to essentially strict liability for every incident in this jail well the judge in this case i would like to make clear that's that's not the argument that we're making but under these specific conditions the fact that it's overcrowded understaffed these aren't just missing fifteen minute interval security checks right i mean for the better part of a decade the sheriff has been on notice that it's anywhere from two to twelve hours i mean there are quotes in these reports that ultimately state that their own the chief deputy the jail administrator they're advising correction officers you know not to go in savile's if it's just th i mean essentially these inmates are running this jail but to go i mean that that response basically is a concession that yes you think that he should be liable because of the jails i think the argument could certainly be made that under the this is one of the worst jails if not the worst in the state it's still one of the i think it may be the only remaining underground jail in the state when you go down into the book in situ and when you go in to b booked in the lobby area where parents family friends would st come you've got inmates you've got a restraint chair that maybe somebody who's on suicide watch is shackled up too you've got other inmates that are both male and female changing to go to court so i'm not that's not our argument that it's a strict council what is what is your argument what is your causation argument how did these conditions cause this injury by failing to have enough staff just because a cell is not overcrowded does not mean that the jail is not overcrowded right so if you've got other portions of the jail that are extremely overcrowded him county jail is certified for two hundred and fifty five people around this time there was approximately three hundred and seventy five two thousand four hundred folks in this jail so if you're putting out fires over here you can't be proactive over here so just because the cell was not overcrowded per se doesn't mean that security checks were being done i mean judge white just to address the shank that you brought up inmates are sleeping in the showers when they're having to put people in the showers so you would think that somebody at some point would be going into cells and throughout these t c r reports they periodical you say this jail needs a shakedown there's contraband everywhere the inmates have this the inmates have that we've got to do something to be proactive to make sure that inmates are safe to address the classification issue for saying that one of the documented deficiencies is that in bates routinely have contraband in the cell because no one is checking that is the inference that one can draw from those statements there from two thousand and ten to two thousand and seventeen just those seventy c i reports that i've reviewed yes from two thousand and ten and all the way through two thousand and sixteen or seventeen every one of those reports seem to mention something about there needs to be a shakedown inmates of contraband this that and the other so if you're proactively going in there having infrequent checks this potentially could have been found if you have even video cameras set up if you don't have enough step that's one of the issues in this case that goes to the deliberate indifference i think it's the loeb case i think it's an th circuit case that the appellant cites too and it ultimately talks about how the sheriff implemented was there at the jail on a daily basis this sheriff isn't at the jail on a daily basis there's no educational programs there's no counseling programs there's no sexual assault counsellor present so you can see how more or less the sheriff has actual knowledge he knows he's admitted this he's admitted each one of these things that the jail is overcrowded that it's dangerous and  right to be free from the very different sexual abuse was clearly established but the supreme court has instructed circuit courts repeatedly that you shouldn't phrase frame the clearly established law at the highest level of generality that strikes me as the highest level of generality for purposes of this type of coreen so i don't know that that is sufficient to put him on notice that this overcrowding is actually  constitutional violation i think you would need to have the way that supreme court at all is that do you have analogous cases from the score that would put the sheriff on notice that if he doesn't fix this prison been on notice under the clearly established law that the overcrowding was actually a constitutional violation but i don't think that overcrowding in of itself is a constitutional violation right i don't i mean that's not my position but all of these taken in conjunction for over a decade when he starts out there and then come forward to two thousand and nineteen nothing has changed every year it's the same thing we're going to build a new jail we know about this we're going to go to you know we're having budget constraints all these issues farmer versus brennan six circuit case makes clear that the plaintiff doesn't have to tell anybody specifically ultimately that he is going to be harmed or he's going to be sexually assaulted so all the injunction it's just this is just an in my mind an atypical claim and the reason i say that is most of the crimes in the failure to protect context it's it's a  personal interaction between a prison guard and the prison guards failure to like prevent violence when the prison guard have the opportunity to do so this is a kind of at a very high level of generality  senior leader of the counties should have been put on notice that's it's just seems to me that it's a typical that's how the types of failure to protect crimes we see which suggest to me that qualified immunity could be doing work here that it's not clearly established because there's no precedent that's really analogous to this this theory of kind of the sheriff should have done more to fix the prison conditions judge murphy and my position on that would be in maybe another set of circumstance or another jail i would agree with you but i think this jail in these current conditions is unique i mean the sheriff had seven years worth of t c r reports all directed to him he's got a two thousand and ten report from jim hart invited by the sheriff specifically sets out the sheriff is inviting us here two thousand and eleven and he's invited back by jim hard for another assessment the chordal go assessment in two thousand fourteen the two thousand and fifteen national institute of corrections where the sheriff is personally inviting them to come and do a jail study so i guess put on notice our argument is he has actual knowledge of this i mean he knows how bad and decrepit and abysmal these conditions are and still nothing has been done and one thing that i would like to point out before my time runs out is the budgetary argument that the  make that argument in our opinion has been waived at this point it was not addressed in their summary judgment brief we responded to what they argued in their summary judgment brief they brought it up in i think a sentence or two in their reply brief judge mcdonough the district judge made the correct notation that that could be considered by the jury as a mitigating fact but it's not it's not a point here where we're going to dismiss this case based on you know he goes to the county commission and oh we just don't have enough money and the local court sets that same precedent out except in that case the sheriff was much more proactive than the sheriff there are certainly things the chair of john again can do they don't cost him a thing and in fact he's admitted that he's made quotes that fixing the classification system would not cost anything but did the classification system even contribute here in this case the appellant's state that there was not if anything that mr back was misclassified to his benefit i don't necessarily agree with that in fact one of the end mates that actually we allege assaulted sexually assaulted mr back he was a convicted felon he admits that in his deposition so this fact that he's a misdemeanor offend is just inaccurate incorrect he was found guilty i believe out of illinois so he's a convicted felon in this in this particular cell and in fact in tennessee failure to appear on it and even  a misdemeanor isn't a felony on a failure to appear so he's being held on a felony and is a convicted felon the other gentleman that was in the cell with mr beck was actually w robbery not actually and probably not probably would have i would agree with you how i would agree with you on that your honor but the other gentleman was serving a sentence on an aggravated burglary charge so those are all factual notice just a note as far as the t c r report goes there was a report about thirty nine dollars days prior to the alleged assault that stated that there were time gaps and security checks of between two and ten hours they came back nine days prior to the sexual assault nothing has been changed at that point still two to ten hours the sheriff has a responsibility he has a constitutional and statutory duty to take charge and care of these inmates that are incarcerated in his jail he is ultimately failed to do so he's had a decade the budgetary constraints and the cases that the  cites to actually stand for the proposition that it's not an excuse it is just not an excuse that we do not have the money to do this and in fact it's our opinion that the sheriff continues to represent actually that it's not necessarily a budget constraints issue it seems like a good argument for the county right and you're allowed to proceed with the county the county is not here on appeal but for the sheriff it seems somewhat some somewhat of a sympathetic idea that he's not in control of the budget strings  how would you respond to that well as far as the president that we have your honor that's that's still not good enough it goes it goes back to the heart of the free things the things that do not cost any money sure jargon stated it would not cost anything to fix this classification system at all the disciplinary process it's vital they're still through two thousand and ten through two thousand and seventeen they still don't have a proper disciplinary process and reports continually say this is vital to basically it would be relatively minor to hiring you know one thousand and ten dollars new staff putting up some sort of video camera in the places that you know inmates know that they're not being watched or a security officer is not going to come back anywhere from three to ten hours so these are things that could have been done alternative measures that could have been taken for the better part of a decade and have not so that's what we're asking to from the district court's opinion thank you living quarters where people use the bathroom sleep etc so i don't think how do you respond to just the high level equitable point that these two see i reports have been coming out for the last several years and nothing seems to have changed but i would respond by saying that you are correct that perhaps that is a case being made against the county but the sheriff does not control the purse strings there is multiple cases that we've cited that the sheriff can't be responsible for issues caused by budgetary reasons but again i think we can get back to the causation did any of this have anything to do with the the event in this case and i think the the answer is under the doe vs sullivan county case we have an arguably much worse situation so how can the sheriff in this case beyond notice at that high level of generality that  conduct was unconstitutional i would like to also briefly touch on the fact we've spent some time on the nation of course there is there is an objective and a subjective prong to the  jarnagin and or the objective prong there the plaintiff has to be if it's not going to be a case where there was direct interaction which is what the vast majority of these cases are an inmate says i've got a problem and somebody refuses to do anything about it that's the vast majority the only other category of these cases is the class of cases that flow from farmer versus brennan and those cases require a group of prisoners who are singled out in the farm or case the plaintiff was a was a transsexual who was singled out due to his sexual orientation the taylor case that we cited the plaintiff was was mentally disabled and had a seizure disorder and again in this case plaintiff assad to nothing that would bringing his plaintiff into a