so the district court could apply the proper legal framework to the facts of this case specifically in that rematch and this court explained that the actual knowledge standard required for a deliberate indifference finding may be demonstrated through circumstantial evidence and that a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious this court also provided guidance to the lower court in how to apply the legal standard to the facts of this case this court said that the defendants did not initially poe quoted extensively she know the legal standard below us to know what she wrote can you tell yes i believe she knew the legal standard from what she stated i don't know lee had the right legal standard you just think one of the saying she knew the right legal standard on this point yes she had a particularly the legal staff i show you say she was wrong so you say that out of the appropriate legal standard she just could not have found a come to the conclusion she came through on these facts yes that's right your honor i think that she she did not take into account substantial at all and i thought that would be your answer if that's so then why would there be a yes two three days of legal hearings all together right in total yes yeah so is the gist of your argument in response to my colleagues to questions is it yes the correct legal standard was known and was applied but on these facts you can only go one way after application of legal standard therefore judgment should have been granted and could only be granted but the facts are the same and we saw them last time then why wouldn't we just direct judgment for you there have been some additional facts that were developed on remand that the district court did not properly take into account that i would like to go over with this one and have you have you do that do you ask us to direct judgment for your client or do you as it is just send it back i requested this court direct judgment for m some of the facts that were developed on remand as well no i'll be clear on that you say under these facts as a matter of wall you win yes no other possible conclusion honor despite her credibility determinations it just doesn't matter under these facts she had to fine and all you want is the damages hearing that's correct your honor i would also like to talk about the credibility determinations because i think they were based on mistakes that the lower court made and i'd like to go through those first i wanted to go to this institutional classification form that was moved into evidence form authored by a captain in the prison geoffrey kaiser one week after the assault in this case and i think the language in this form as written by the prison goes among staff and other inmates and that's from the beginning he was on my caseload from the start and his first words to me were i know where the drugs are in this pod and he has continued to exhibit this behavior further down towards the bottom of the page again says he is well known among staff and inmates for being a snitch as he does not try to hide it and it says he has not been a reliable information giver but other offenders only know that he snatch risk that makes him a vulnerable inmate so he's vulnerable to attack from other inmates particularly gang members such as his cellmate the prison defendants in this case testified that their responsibility was to be aware of security issues in the prison that if there were security issues they would be brought to them those who marched and these are troubling that a question that it could go in your  evidence indicating he's a snitch on one hand but also rebuttal testimony saying lately the opposite and makes that finding a fine how do you thin of how do we then say that's clear the the documentary evidence rebuts that rebuttal testimony it's not plausible it is not plausible backed these defendants did not know he was vulnerable to attack based on the record evidence and so that finding a fact is an error it just is not based on plausible testimony and it's not just that we have this one document saying that he was well known to be a snitch we have the history of grievances we also have the fact that he has been paired with an inmate who has a history of the writings evidence in the record with having to win on that record know that just because there's evidence in the record which would support that doesn't mean you you win as a matter of law i think that the findings showed a clear error and judge should to go to for instance the credibility determinations that you discussed that a pelleas place a lot of weight on the magistrate judge found that her her finding was based quote in large part on her finding that mr make us he was not credible and then she went through several examples of why she believed mr mcduffee was not credible in the district court adopted this without any real agree judge that it's not clear from the tape that the opinion for instance the magistrate judge wrote that it was a contradiction that mr macbeth see said he screamed loudly during the assault but also later that when  attempted to scream his inmate punched him and made it hard to breathe so the magistrate judge is suggesting that he was not actually screaming and that he could not be heard but another inmate curtis thomas testified and said that he could hear the fight and that the magistrate's own findings show that because he testified he was first screaming for some time and quote after a while he was held face down on the bed so that he could not scream so that that would not go to credibility the magistrate also talks about these offender locator cards and  he was placed in segregation when he complained about being assaulted in two thousand and seven she says that he testified he was there for thirty five days a locater cards contradict that but the locator cards show he was there there was this issue of prior so i just get this straight whatever you ask whatever you did ask for in your briefing to us as you stand here now after our questions you're asking for judgment as a matter of wall that's correct ok mckenzie also testified he was assaulted by this cellmate on december eighth two weeks before the assault at issue in this case the magistrate judge brought up this issue of whether he had a stab wound as a result of that assault and she says the doctor found there was no stab them so that's a credibility issue when mr mackenzie was asked about that scar he was not as definitive as the judge reported in her findings he said i believe i do i didn't think so because i was looking in the mirror to see if there was a scar and i wasn't sure and i put my glasses on last week and i noticed there was a little blanket denials it was just there were saying i didn't you know i wasn't aware of this there's no other actual rebuttal evidence besides their testimony but what if that's true what if just blanket saying i subsequent hearing guy wants to use it and you've actually seen your client in see whether he's credible or not but none of us have and that's the whole thing about appellate review we have to take the record as is written and you know in this country the trial judge makes the credibility determinations to determine who's credible or not and one of us might have come out the other way but that doesn't mean that unfortunately doesn't do it for you  thought your answers to the initial questions about whether the correct legal standard was known and certainly applied goes a long way for substantiating what happens when there are these three hearings and there are credibility determinations and there are conflicts between the two sides right so tell me why i'm wrong about that first because the credibility determinations were incorrect they were based on mistakes made by the lower court so they're when you're not going to the lower court you just said i find your client totally incredible i just did not believe anything that came out of his and you wouldn't have any basis for seeing the credibility determinations you know coming up and saying look this is this is a frivolous issue or this isn't important or what have you you would just have you know a two page opinion which we sometimes get is you know so what would you say then they'd be correct legal standard if the crypt credibility determination and they would be finding that the other side had been credible and she did credit and she did believe documents were i apologize the supreme court in the andersen case how the documents are objective evidence may contradict the witness a story or the story maybe so internally inconsistent or implausible on its face that it could not be credited where such that is why they should not be given weight and this court should focus on the factors that it instructed the lower court to focus on which is whether the defendants knew that because he was vulnerable that smith was aggressive and violent and that they were sharing a cell together and the defendants it was obvious that the defendants must have known those three facts and i ask you to go back to this document that you were directed it's to in the very beginning of your oral argument which is i would say a mixed bag for you because what it suggests to me is that your client intentionally put himself in a situation where he could then cla that there had been some sort of abuse and get special treatment can tell you where the drugs are he's not been a reliable giver of information but other offenders only know that he snitches so i guess it's a matter of policy because really really at  issue here or at the core of your case is this is really a bad policy this is this is this really prison handles this kind of person totally badly as a matter of policy should inmates be allowed of make their own terms of confinement you know i don't like to be in a cell with other people and i need to have special cushions because i'm a stream of sensitive i mean i'm just not sure that really follow it the court has said that prison officials may not let the state of nature take its course and if an inmate makes himself into a victim he is no less deserving of protection from the prison guards or no less intitled to be physically assault and sexually assaulted by other inmates than any other inmate at that prison he may have mental issues there may be various reasons why somebody would make themselves to be a victim he may do that because he realizes that he needs protection and that he can't protect himself and so it's a cry for help he's trying to do what he can while getting other in this case and ultimately after weighing conflicting evidence and assessing the credibility of the witnesses the fact found that mr mckenzie had not shown actual knowledge on the part of these three defendant office they were your honor but our general practice and what was on the record here was that the defense were asked if they were aware of mr mcdonough these complaints and they all testified that they weren't and that was credited by discouraging just two purposes don't come back and trace the question  shed the but the point here well you know maybe you can get away with that but i don't think that that's really in the spirit of what the remained was about you judgment we're supposed to be trying to find out if there was a violation of the constitution here judgments all the witnesses on remand from the department testify that they were unaware of mr jesse's greens if we look at the actual record there are really only two that were directed to their attention or could have been there is one that was sent to the defendant dalla hard and stated in two thousand and seven but it's not he didn't sign it there's no representation on the document that he ever saw it was just a notation that he was copied on it and he testified and only part of that he didn't he doesn't remember it he didn't see it there was another so i wondered if you made any efforts i represent the state once one time and state agencies and i'm pretty confident i've gone back and tried to find out what happened what happened to all those complaints but nobody decided to do that right happened to these complaint judgments in the course of a normal case where there's an argument about what happened in this case of all these complaints you have somebody early in the case likely to go pull them but i can't represent to the court one where the other because i don't know the answer i'm sorry i didn't hear i couldn't literally couldn't hear what you  g judgments the normal expectation in a case like this is with discovery in the process leading to the filing of the case that these complaints would have been dug up in a number of them or in the record a huge number but there was no sir there was no action undertaken on remand that i'm aware of that went back to look for further complaints additional complaint verify anything my question obviously has been not been clear the record was clear on that these many complaints how many were there is one of my colleagues twenty is what the sorry more than twenty years more than twenty and that they were files but that the defendants said they didn't know anything about these complaints and what i'm asking you is not to look for other complaints but whether there was any after the remained and after it was clear that they said there were no complaints just as a matter of prison procedure did you try to find out where these complaints were and how they in the future similar complaints could be known by the proper officials you know rather to my knowledge the answer is no but there were only two that were in the record that weren't directed to these officials and with respect at least one of them there is evidence that shows that we tenet fields was aware of the complaint and had seen it was one about a formal complaint forms that came up the same year for the assault happened and there's an e mail we're lieutenant fields was contacted by the grievance official and he responded that he that he had never been asked for one but he would talk to mr mcduff see about it but this take a step back and yes on the appellate side of the issue is the court should take the evidence in the light most favorable to the defendant to prevail after two full evidentiary hearings and i think the department certainly recognizes and agrees with what i think all three of your honor said is there is ever the evidence in the record is troubling it is very regrettable that mr libby i think it's so troubling wanted was to take efforts to do something about it that's what i really i find inexplicable what judge from the department side is mr does he is not credible and the testimony from our witnesses is credible want to appeal that they didn't know that he was vulnerable the day didn't know that he was a  look for example one of the forms has been talked about a lot this morning is it j one zero nine eight this internal classification authorization form and that form post dates the events here but it's also noteworthy that none of the three defendants and there are only three left in the case or on that hope will think alike and then i'd like to unpack if i can the first is he does not he does make a lot of allegation of sexual assault the case and that is one of the more troubling aspects but the facts that came out at trial were to have an insured hearing is that only evidence is really not being investigated how does he how does he prove i mean if that and then you put him in this situation and it's obvious something does happen to him and ultimately something does happen right no one is disputing that he was assaulted judge what happened to him is it mitchell vent he was assaulted over some period of time it was in dispute but he said it was like five or six hours but then officer testified that he went by and there was no issue going on during that and so then for that result would be we'd have to sort of believe what just happened that had no clue this happened at all over his statement this has been going on and i've been trying to keep you from doing this and you put me in this dangerous situation and this happened to me part of the problem here judge went and i do want to respond on the sexual assault allegations because there is only one actual complaint form that ever came up where he identified somebody who specifically of sexually assaulted him that was an inmate in jaipur reds and that was investigated by the parliament it is in the record that they have consulted the judge said he told the doctor i think it's a j seven thirty two right after all this is all happening some are twenty first that he was not raped that's what the doctors testimony will obviously that what it was that might not be a very good thing for him to say and then go back out  evidence and over three days and assessed witness credibility there is an enormous amount of conflicting evidence in the record and i'm the department and i'm not in the standards that you couldn't have gone the other way so that you read this book oh that risk the easier way for the court to affirm is that the defendants were but it rebutted the obvious this rest of the rest were testimony that they didn't see the grievances which was credited their testimony that the characteristics of these two inmates physically didn't raise any red flags and that that's the easiest way to resolve the case the third way the district court analyzed it was the department's policy that if mr macbeth's he had refused to go back to his cell during five one period any time during the five month period he was housed with smith that they would have been immediately segregated and that was sort of going to farmer's idea that there are just reasonable prison policies they can be put in place to try to overcome situations like this one and so that the district court said that you know it his ability to refuse credit testimony that this was an accurate statement of warren's words policy he had said i'm not going back to my cell he would have been segregated and he could have taken that act at any point over the five months that he lived with smith during the before this unfortunate event occurred court i think had three different holdings but only just given the standards that apply here on appeal i think the easiest way to resolve the case is to look at it as a rebuttal case that the defense rebutted it just in light of the fact that these were experienced corrections officials who testified so that you couldn't a subsequent incident where somebody would file twenty complaint more than twenty complaints and the people that could do something about it didn't know anything about them judgments like i said i don't know the answer to that question but if you if you did look at gal horse testimony on rebuttal and it went on to remain in this case he did say that it's common for at least in his experience a woman's ridge for people to see transfers between cells for any number of reasons or to seek segregated housing by alleging that they are in  threat of serious harm that this he said in his experience this is a way that inmates manipulate cell moves and so you know if you're really telling me if you don't know that they didn't think but they really didn't have to do anything because this isn't a problem well i don't think so judgments to my answer earlier about the reasonable practice that's in place if there is a legitimate threat if mr mcdevitt he had truly believe that his life was in danger on december twentieth the day before the assault all he had to say was i'm not going back to my cell and he would have been immediately segregated and i know that's a little bit unsatisfying but the prison is full of intractable problems and ones ridge in particular has a huge gang population of three or four hundred gang members how's that it's a very high security prison i think a prison twelve hundreds it's about a quarter of the population go far back and kind of he said that this was a problem because he was an arab that he was particularly picked on so what it was if you is with that basically a real minority but half the prison but you don't know anything about that i go ahead mean less importan first your honor it honors a founded it's kind of incredible that the state questions whether or not mr because he was sexually assaulted on this date december twenty first when the state itself lost the evidence that would have answered this question for a second difference is that i mean if they knowledge with salt that's that's correct but they use it to attack his credibility i think and and they on the december eighth assault mr mackenzie had bought a bloody t shirt and bloody underwear which he put in and on below that was in his cell that he claims shows that would be evidence that he was actually assaulted on that date the state collected that as evidence and also lost that on follow so that it could not be tested so it's kind of kafkaesque to hear these credibility determinations be made against mr mackenzie when the state is the one that is losing the several i apologize in the past i'm not aware of any pending ok i thought they were all part of the suit but a bunch of defense you know there were additional defendants yes yes that's correct there were additional that summary judgment should not be imposed again we have evidence of this we have evidence of that but the dish reporting knowledged summary judgment standard you summary judgment should not be in or the games issue there the most when you can have when you have evidence that shows that the testimony was wrong and that's when it doesn't count and there are a few as when you have somebody on the test test you off never cross examination and that point is that they have something wrong maybe there is something wrong but we get these when you charge a jury you say you may believe any of the testimony you want to or none of it and you may believe any judge accepted lieutenant fields testimony that he quote had no reason to believe it was particularly vulnerable or had been picked on by other inmates prior to december twenty first two thousand and ten but there's ninety eight classification form seems like it would be an important piece of evidence that would go to the knowledge of these defendants the magistrate judge did not discuss it in her analysis at all the district court did not discuss it in its analysis this and then the district court in its original opinion brought up the snitching question and in the original opinion the district court said quote it dismissed the idea he could be a vulnerable because he was a snitch saying quote there was no admissible evidence supporting a reasonable inference that any of the defendants knew of snow such rumors snitch that said j one zero zero eight no admissible test testimony supporting any supporting this and now we come forward with evidence showing admissible evidence showing the defendant twelve this court said we may discern clear error when a court makes findings without properly taking into account substantial evidence to the contrary so the district court doesn't have to discuss every piece of evidence there's certainly a lot of evidence in this record but when there is substantial evidence to the contrary that is not taken into account that is clear and i believe that's what happened here thank you very much and i understand your court appointed