motion we did not agree the motion to amend or to alter reconsider and then bringing that motion and the purposes of that was to ensure that we had a final judgment because i thought under a circuit president there was some question about the order that the court had entered and subsequent judgment since it was not clear on whether or not we were given the opportunity to men and the court to dismiss the complaint and not the action at this point in time we did appeal from all of these orders and it's properly before the courts and there is no argument to the contrary so your honour's the issue before you is this we plausibly alleged that a minor was involuntary leads saying at a juvenile detention center where she was sexually abused in addition to suffering additional violations of her th and st amendment rights we pleaded the th amendment as well the denial of the motion to alter judgment is not before us but not to the extent we're seeking to amend your honor her act we're looking solely for the twelve b six for the courts of earth the initial twelve the six motion  color of state law for purposes of section one thousand nine hundred and eighty three all authority reflects that private prisons and similar detention facilities act under colors of state law the plaintiffs as me begin with a simple question as i looked at your complaint there was no contract least you don't plead that there's no contract between your tones and the state right your honor we did not allege specific contract but there's two points for that one we allege that gaijin concerted action and we allege facts that show that jane doe was in the legal custody of khanabad county and then and agreements between the stayed and between the entity that's taking two hundred and forty seven control over the mine well then then you would concede because you know i'm sorry i don't know i think about minnesota but but in missouri at least juvenile i think that in each instance we have to weigh facts right so i don't think it's fair to say just because it's a treatment center they're not acting under color of state law you know your honor his own opinion and americans united you know discusses a rehabilitation program that takes place yeah but that's a part of a prison council that's completely different right but i don't alter that comes dulcet part of a president that's contract not one contract as part of the prison at and i don't believe it is your honor because here we have alleged that she was maintained and sexually abused in the correctional unit which is for all intents and purposes a jail cell as we reflect ok so so so you say we don't have to talk about treatment trying to get you to say that i states supreme court makes clear that providing medical services to inmates is a public function and that rests purely on the notion that providing incarceration or detention is a public function and so if we're talking about detaining someone in a correctional setting your honor i don't think we could get past that understanding thing with the at and the th or you know has noted that  you know and infer that the supreme court has acknowledged this public function and i do think the public function is what's critical there you know i know judge benson was discussing the contract issue that really just goes to the question of joint action which i well i think it's settled here it doesn't go to the public function question and all authority that we have as sound  juvenile detention centers are providing the public function of detaining use now i've argued this issue three times now and the st time the result was a remarkably different judge schildt basically discouraged the defendants from even carrying on with the argument at oral argument and denied the motion and found a virtually identical institution in minnesota x under color of state law and that would be youth services international which is the high point courts in south dakota actually cited to the american united to take in to say youth services international engages in joint action because the only way they can detain these youth is through their joint action which almost never happens in minnesota and he denied the motion finding that here and generally the question of state action requires a sifting of facts which the court has long told us since lugar  that was just settled right that's set in this case yes it was settled several months ago your honor it was february rd according to the court record is that correct that may have been when the stipulation for  but yes your honor so that matter that matter was resolved but that in that's the critical question for the cool words in looking at either the public function or the joint activity to us are there facts that need to be sexually abused by a correctional officer at those there's a mistress george was in play she was there because she had been a judge to blame winter convicted of the crime or sentenced to some determination to place her in the correctional unit so they chose to detain her in the jail cell through the authority that was given them to the state and as we have ledge they obtain that authority  various court orders which would be explored further in this case on discovery your honor so her while she was placed five the state and again not her parents she was in the legal custody of the states and then they made a two hundred and forty seven transfer of her custody to north of us and at that point in time north poems used its authority given to it by the state in precisely how to be discovered further in the case so hold this girl in a jail cell where a correctional officer abused and assaulted her as if the fair in ca isn't a fair understanding your complaint that she was sent to the d h s the human services unit and then the north the home sorry then they're the ones that put her in the d l c that the correction right exactly or hon and north tombs pleased her in the do you see and through again through its authority with court orders and exactly what the circumstances of the dense were that gave them the authority to do that is something that's borne out on discovery and i understand your honor is asking that probably along the lines of a joint activity which is different then obviously a publisher is a big gap i think paragraph thirty one and thirty two your complaint and how do we interpret the movement of her d h asked which probably wouldn't be too bad to be more like the treatment stuff to deal c unit well i think what we have to do your honor is not necessarily look state and so i think generally when we look at these are a matter of jurisprudence if someone's being held in a correctional setting as the courts have repeatedly held in the juvenile context that we're talking about the public function of attention at that point now the high point colored sort of touched on and built on your honor's opinion the americans united it and said well it's really like a joint activity issue you because they're using the power vested in the state go  ahead and to detain the you under those circumstances ultimately i think it's important that we're not rigid about this at this stage in the proceedings the courts told us in lugar and brentwood that we don't necessarily have great line tests that we have to follow the critical question is we have to sit we have to sift through facts and then are we plausibly alleging that someone acted under color of state law and here we have an entity that is  licensed by the d e s c to detain you in facilities that as your honour's can see from the materials are clearly akin to jail cells we have bars on the windows we have concrete beds which is the thin mats on it and that institution is using that authority to decide whether or not to move these youths in and out of a jail cell and then from the twelve the six standpoint where we're supposed to be inferences and apply common sense and reason when we're making those efforts is it is certainly reasonable for the courts i make the inference that there are likely contractual agreements between the county that place this girl there and the institution there a private entity or not doing this for free they're going to expect to get paid and it can affect county is this legal is the girl's legal guardian the only logical conclusion is that and a big county is likely the houses use well another former treatments nursing homes and if they state state puts the band an old person who doesn't know what they're doing in a nursing home you what you wouldn't claim that that jails you know you can't you know i want you well we won't pursue that anymore ok but that but i think that i do think that that's a that's a critical distinction that we have here the court really seemed focused on questions of civil commitment and medical treatment but here we have the critical addition of the department of corrections units and that's where the harm befell this girl and that's the unit that was used as punishment for this i think we're more than that and if you look at the appendix pages one through five which is our north comes web site that was provided by mr storms in this case i think in the court constitutionally protected harms that has not been pleasant let me ask you a question counsel the supreme court has said for sixty years back to burton case where we started all this and lugar they've said that this inquiry is necessarily fact found unless it's really obvious i'm paraphrasing burton but it says nama obvious not paraphrasing must unless it's really obvious you've got to sift the facts and weigh the circumstances gosh this at least gets to summary judgment and leave aside how much we can use that but you're both using the website for the website says you have contracts your prove by your regulated by the minnesota department of corrections in that enough that's in there clearly in their complaint they have agreement with  task for duties or you have been or delegated to north hopes that's not in the complaint and when we look at the how did evolve how about how about saying it was delegated involuntary detention they use that word two or three times si and the court found that there were specific contracts which delegated all of the authority or services to the defendant so again our view judges that these allegations are and so moving on  placement in the security units and the complaint says that she was placed there for behavioral issues so d from our perspective just on its face we question storms your rebuttal yes your honor under the twelve b six hundred my client supposed to be believed and my client has alleged that this is a juvenile detention center that it is a correctional unit that she was maintained in and what the district or did and what i believe my colleague mr wade just did was ask this chord to say well we're really more of a medical institution than we are a correctional and attention center and that's not the type of determination that can be made on a one hundred and twenty six motion that's exactly why the supreme court has said we need to see if there are facts determined state action and why routinely cases hold that detention correctional facilities d do satisfy or are a public function are you familiar with the robert ask a son of the rd circuit i am your honor how do you distinguish that very very easily your honor exactly the way the c k b northwestern human services case your honor out of the i think that is the eastern district which said exactly what we have present here the facility and c k b northwestern human  services was in part correctional and license by the department of corrections and sylvania where is in the robert s opinion was not and the robert s opinion actually had to distinguish itself from the th circuit opinion in malonis which also had noted that its facility was both a rehabilitation and correctional detention center so your honor i believe that the case laws already done that quite well for us and i believe if the board did