assess mr gordon who had told registered nurse finley that he was a three grams per day heroin user twenty eight hours later after having been inadequately monitored not placed in the proper medical observation unit he was placed instead in general population and after suffering through excruciating physical pain another disability because of his opiate withdrawal robert downey deputy who was  was conducting safety checks that evening discovered mr gordon in his upper bunk bed which was contrary to registered nurse finley's instructions that he be placed in a lower bunk bed he discovered her is discovered mr gordon unresponsive literally blue in the face lying in a pool of sweat ten inches in diameter and completely unresponsive later that evening  eleven thirty mr gordon was pronounced dead at western medical center santa ana this case this appeal requires this court to determine as an issue of first impression whether the supreme court's a similar objective framework for failure protect claims are due process clause this court should we believe along with the the recently decided second circuit opinion in darnell the pinero which extended that objective framework to all conditions of confinement claims under the due process clause we believe the court should extend that objective framework to mr gordon's failure to provide proper medical care and monitor properly that medical care under the due process clause now there are several reasons  why castro and kingsley should be extended to this court to this case is context the foremost reason i would submit is that castro involved the failure to protect contacts and in this case when you look at this case in specific factual circumstances the individual offense particularly in registered nurse finley and see tank eleven at eight thirty one pm and nine twenty nine pm during the evening of september ninth mr danny deputy danny conceded that he was conducting those safety checks from a vantage point twelve to fifteen feet away outside a glass window elevated six feet from the floor of  the what was called the tear area the the floor of the tank where mr borden was was stationed where he was laying in his bunk at counsel if if we agree with you and extend castro in these particular circumstances shouldn't a case be remanded back for evaluation by the district court since that is not the standard that was used in iran are we with yes we agree that that would be an acceptable outcome if this court word to remand word determination under castro both for the claims against the individual offend its and the mon el claim because castro had some significant legal developments in that area as well but we would submit your honor that it would be even more desirable given how long this case is has been litigated more than more than three years thus far that it would be at least appropriate to to instruct the district court to reverse the summary genuine issues of material fact regarding not only whether there was a substantial risk of serious harm to mr gordon being placed in the incorrect protocol and being inadequately monitored but also regarding whether a registered nurse finlay and deputy got subject were subjectively aware that mr gordon could face a substantial risk of serious harm if he were not adequately monitor place in the well he he indicated to nurse finley i thought the form indicated that he was at a level three out of ten that's not such a high level that would necessarily on its face seems to me require that someone be placed in a different protocol if if he were actually an alcoholic i would agree with your honor but he was actually assess with the seaward form used for people with alcohol withdrawal instead of the cow's form which was which is th the appropriate form to be is for persons suffering from opiate withdrawal so in that regard the entire assessment process was flawed from the start because there's been they was even using the correct form or much less is correct and it's a procedurally speaking of this court deems it appropriate only to vacate no rather to vacate and reverse their move with that is a remedy that we would be prepared to accept we were very confident that if this case evaluated from objective framework then the summary judgment would not be appropriate for all the individual offenders but particularly with regard to deputy danny there's been like did you  framework set forth and castres should be applied to all the individual defendants in this case were reminded but with respect to the menow claims that was an object it wasn't an objective framework applied in the first we're simply using the violation under these specific circumstances to show that a customer policy had been established that was a deviation from written policy in this case not only section ten twenty seven but also  policy section seven hundred sixteen point two of the sheriff's manual so that was the first reason the second reason he offered was that we had only articulated one violation  those policies namely what happened in this case as we've discussed in our brief castors specifically mention in a footnote setting to brown the county commissioners and makes ninety seven supreme court case that even one unconstitutional would be sufficient to establish a no claim so that's why we think it a bare minimum your honor that remained would be appropriate so the district court could assess the no claims of it under castors language but with respect to that last issue in terms of the entity defendants the monella claim there certainly was evidence in the record of a routine practice of inadequate safety checks by checking from the court or as and and that was the testimony of the officers themselves but not with respect to the failure to use the cows form into it isn't that right you didn't have evidence beyond the one instance with i would  that definitive concession or admission like we did from the day we do have evidence that the callous policy changed in october of two thousand and thirteen in that the jail then made it mandatory for there to be an assessment of this point we know the district court did not reject that evidence on that basis and indeed i believe i recall the his memorandum opinion correctly i believe he did discuss it as following from the the tragic incidence of this case and whether it's ultimately admissible this case goes a trial like a can of pine and that right now that we would be prepared to submit supplemental briefing for the court deems it appropriate i see that my time entity defendants the individual defendants raise the issue of qualified immunity and it was under the two step rubric that i'm sure this court as well aware of that the district court determined the the fact that that finding was made is no longer an app finding well if the court finds that the new standard under castro is a political i would submit that the evidence is still clear that the individual defendants were also did not recklessly disregard mr gordon's medical needs and the progress of the record is ample in terms of evidence of the treatment that mr warren and in fact received don't you think that the district court will have to determine that in the first instance since if we if we were to roll up castro if this court were to find that a new law applies in terms of the constitutional right here at issue that six precisely work well funded in the addresses in the second step if there is new law that you know deemed with being able to predict what new standard might apply well the constitutional right hasn't changed correct your honor but that the standard by which they would be gauged you know would be would be different right but that's just a legal analysis the constitutional right itself has existed for over three decades yes your honor and the constitutional right here i would submit is the deliberate indifference to the medical treatment or castro require an objective standard innocent looking at it in terms of the interests of the county itself what i would like to know is is it your contention that the county of orange is better off having a subjective standard for its employees there or would be better for all concerned to have an objective i don't think that the issue is should be framed as whether the county is better off under either standard because under either standard in the under the facts of this case the county and its evidence in the record that the administration of the one test over the other caused any substantial risk to mr borden he was evaluated his vitals were taken  and he was given appropriate medications at the jail had available to it for purposes of treating heroin withdrawal so i'm curious when one thing this decision was rendered june briefed to judge carney at the time castro came down about a month maybe two after the court had the in front of it so castro was not briefed at the time the standard was the close your case which you know applied the subjective chest and that case  there relates back all the way to former versus brennan and authority prior to it where the deliberate indifference to medical care cases the the long line of cases in the ninth circuit that deemed things acts like negligence medical malpractise those types of claims were legally and adequate to prove or to demonstrate deliberate indifferen argument with regard to the manaul claim he repeatedly points to alleged violations that occurred under the facts of this case and even if we were taking that to be menow and its progeny is the the the law is clear that in order to have a entity responsible for a constitutional violation there must be a custom or pattern or practice that is the theory that miss gordon pursued in her underlying lawsuit and that is the theory that that the district court ruled on when it determined that there was simply an adequate evidence of repeated constitutional violations even if we take as true that multiple inadequate safety checks were done in this case which i'm not conceding that you know for purposes of a judgement standard that in and of itself is not a proven pattern of a constitutional violation sufficient to the court citing two i think the city of canned case was a failure to train case and it was one and they hypothesize that there could be the possibility of one instance being the basis of a monella claim if the consequences of a failure to train were so obvious in that one instance that constitution repeated constitutional violations were would be predictable that is not the  its policy after this event occurred that the that evidence is not admissible to prove repeated constitutional violations which is what we have to have in order has to demonstrate that that cause a constitutional violation that evidence was also lacking in the record so that at least create a genuine issue i mean a genuine dispute a material fact i don't believe so your honor because ultimately there still is not a repeated pattern of constitutional violations sufficient to satisfy him and i'll claim under the custom practice theory that was pursue that a getting party raises a general claim it is sufficient to preserve the issue for appeal on appeal the party is then welcome to make additional arguments based on the general claims so that's what we're doing here we made a general  suggested that although kingsley was decided before their date of the ruling the briefing may have been written and submitted to the court before was i believe your honor that the summary judgment motion briefing was finished in may of two thousand and sixteen and kings it was a twenty fifteen decision