sergeant mishal michel and sergeant war as you know the district court dismissed this case on the merits finding that there was no material dispute a fact regarding the failure to protect climb and that there was no underlying constitutional violation this record did this by relying primarily on very isolated snippets of testimony from james daly the jailer and his deposition specifically the court relied on daley's testimony but the sheer volume of the incident reports prevented him from reading all incident reports and the kind of depth in the nd thing that the district court mentioned was the daily relied on his supervisors to bring not be applying the kingsley test as opposed to the farmer test i think your honor that the ultimately the burden is going to be the same on us we have to show a subjective awareness of a risk posed but under kingsley it's an objective standard that we agree for purposes of this case that we meet those standards and i think the record meets that judge judge bertelsmann applied a subjective standard the former  test and so we feel like the record is sufficient to meet that test certainly it's sufficient to meet any kind of objective test is all explained here shortly the records reliance on those two isolated comments of mr daly during his deposition fail to include in the analysis substantial and robust body of record that we submitted in opposition to the summary judgment that would meet either  case he agreed that that is the responsibility of the jailer he assumed that responsibility and he agreed that violation of that policy could result in harm to inmates and thus he in fact he himself and he's a lawyer and he him so he didn't make classification systems as the defendants point out in the brief he did make classification decisions himself he did say that ultimately he had responsibility for that and if you chose to he could get involved directly in classification decisions and i'm struggling to understand why your arguments are different yesterday or because what we're arguing is that these three individuals and right now i'm focusing on daily were specifically aware of the risk posed and that in this case daley himself being the highest kelly to lie below the for his knowledge significant incidents so can a jury fairly conclude from the record that we submitted regarding ca himself whether those constituted significant incidents that would be brought to his attention remembrance of the jail by an inma that would be brought to his attention so what with daily whatever you do if we hold him to his word would have included nine separate incident reports that were lost where the three days of his stay there basically within a month and a half he would have noticed for example that within a week of ca's incarceration there were two violations within the st week the set of fourteen and that the nd one prompted sergeant michel defendant and our failure to protect claim to states that the jail had constant issues with him that obviously she's on issues many of those issues apparently aren't reflected in the answer courts but the ones that extortion and threats came up to him and said i know no one else in the cells works to this effect i know no one else in the cell would tell you this because it is threatening and extorting commissary items from virtually all inmates in this in this cell no action was so thank you so my recollection and correct me if i'm wrong is that michelle did recommend reclassification she did ultimately on in her may twenty incident report cuffed and o c sprayed was applied to to separate him from another inmate he was fighting with and she said at the conclusion of her report that she recommended reclassification quote due to multiple incidents with jail staff and othe required officers to forcibly cuff him and remove him from the situation on at least four occasions as i say on may th they required o c spray and cuffing there were the other thing that the daily would have noticed if he actually looked at the significant reports would have been that there were three separate occasions on may th one where two of which he required cuffing and the rd incident where he was so aggressive and physically aggressive toward guards that michelle required that he be put in a restraint chair when she ordered back up and the bringing in of the restraint chair cause said it's going to take ten deputies to get me into that chair when he was finally placed in the chair and restrained he continued to yell at a loss or so and in the words of caution move in a physical manner even within the restraints against the officers this is a man point out on may th michelle recommends a reclassification that never occurred prior to the june th beating of robert young and so he was allowed call was allowed to remain in what is essentially a minimum security so all you did not see were any of that classification deputies or the people who would it had the power to classify correct that's correct and it's it's important part of the reason for that your honor was that in our pursuit investigation we looked at officers who may have been directly involved with young's care and those are the people that we targeted  judge moore is a person by the name of lieutenant palmer and she testified that there is no real three classification system in fact we cited the postal order that mentions classification or reclassification and all it says is author should be aware of potential reclassification of inmates where there's a change in behavior there's no objective criteria and that it all and his plumber herself testified it was essential a a subjective system and she said it was pretty much in her discretion now she's given no guidance to request occasioned by jail who he admitted he is responsible for that in any event and that and i you know the bottom line is your honor as to daly's both individual and liability as a jailer there's no question that if he actually lived up to his word and reviewed significant reports and quoting once a recurring jail violations he would have looked at cause history and he would have looked at the number of times that he had to be cut off once had to be placed in a restraint ch r once o c spray had to be used to gain control of him and would have known that this is not an inmate that should be actually sharing a cell with a with minimum security people  happy or argued that kingsley applies in this context secondly i'm aware that this recently just last month and the griffith franklin county detention center case i believe judge bush wrote the opinion but i'm not one hundred percent certain they were given the opportunity to decide whether or not change we should be applied pretrial detainees in the context of a prisoner in need of an immediate needs medical needs and  my understanding as of maybe late september is the last time i followed that when i read the griffith case griffith versus count right and so that that's that's our position with regard to  your position is is that it hasn't been decided it has not been decided and if if this panel believes that it does apply in this particular case you concern i have is we've not been given an opportunity to argue those points because mr young never advocated that it applied and we believe that the former versus grandstander and deliberate indifference both objective and subjective component still this case and i'd like to a little bit about what the defendants knew and when they knew it because i think that's important for looking at the objective component of whether or not my clients specifically sergeant michelle sergeant lohr in jail or daily knew that mr young faced a substantial risk of serious harm and then disregarded that risk if we start  sort michel because she had the most interaction with mr young according to the record in terms of disciplinary incidents what this court season what judge earls and saw was an inmate who cursed the jail june th and she and my knowledge she had no further interaction with mr coffee until after the assault when he came to earth attention she conducted an investigation ok so so into that  with the when the fight occurred with the other inmate ok but was there any evidence presented that michelle knew that power had not been reclassified even though she had recommended re that's the only thing i can tell you based on what's evidence in the record and i can just reiterate that you know she saw what was happening and made a recommendation the classification officers have the obligation to not that reclassification does occur re classifications based on the conduct the inmates the behavior of the inmates and other factors that enter into that equation with regard to sergeant  e was not aware she acted reasonably in response to what she saw she didn't disregard it she didn't ignore it with regard to jail or daily which seems to be the focus of mr young's argument on appeal i think that they are taking liberties with all due respect and looking at it and cherry picking certain parts of his deposition testimony jailor daley's testimony was that he was not aware  incidents involving mr khosla before the assault he did testify that it is practiced and try and review incident reports but he clearly said he doesn't review them all he relies on his staff bring significant issues to his attention that was in this case that this was a significant issue he got but it wasn't brought to his pension so he was not aware of any facts personally jim daly personally was not aware of any facts that would put him on notice that mr young faced a substantial risk of serious harm from papa claw before that assault occurred so there is no what they really better off most times with an objective standard you know i think it's art in all candor it's our standard for them to meet under former view granted because of the subjective component but as of the moment as a this point in time way these cases litigated what the current state of the law is in the six circuit with regard to sergeant lawrence like to mention him because he's the the rd defendant on appeal that they're trying to say his deposition testimony but other than the specific incident involving inmate may accusing cop threatening him he was not aware of any other facts which would put him on  lying unconscious for three days so when he was being checked on so i wonder if you could maybe in your in your last three minutes or argument talk about mr denny and why mr denny incident and  knew to be a his meals and he stayed in his bunk so in those particular situations deputy danny said that he usually tries to speak to the inmate he didn't say did he specifically did in this case he gave his general practice was his testimony mr young in turn said in his deposition testimony during that period of time when you assault in getting medical attention i never spoke to any deputy i didn't try to i stayed in my bunk that's was his testimony so i think i know it's hard to bear or being our way to know when when when this talking but with respect to denny denny had a number of times where he did counts in make counts and we'll passes it separate during those three days and and mr young had a black eye and was essentially staying in his except for the back and why isn't that on notice putting denny on notice that there is something wrong or else denny was really not getting in the vicinity in order to see the black eye so if you could respond to that concert here sir certainly that young's own testimony was that he didn't get out of his bunk now that's not uncommon in a jail inmates stay in their box they stay in their place that's not uncommon inmates sleep they're not it's not like they have a regular to not being up walking  is me for a nd let me ask a question at this point on that is it a usual practice for them to have their blankets covering them during the daytime when apparently the rules are that they're not to do that  judge i'm not sure what the evidence reflects that regard to the blanket i just know that and whether that's a standard practice or something that would put a deputy on notice that there's a problem i just know that i don't think that that's sufficient establish that that particular deputy is aware of serious injury to requires medical attention and it's certainly not sufficient to say that that particular deputy was deliberately indifferent a black eye in and of itself does not indicate that someone needs immediate serious medical need in your checking numerous inmates during the course of the day you check and i'm being a deputy jailers a difficult job and you're checking in and you're just trying to make sure that they're the there were in there you're trying to maintain control and security within that facility so it's easy or it's easy i think for her to nd guess what they do but i think that's why the supreme court said we have to give deference to these jailers in terms of how they need to security and safety within their facility thank you so trying to make sure that the inmates are not beating each other up and wouldn't a black eye suggest that yes they should make sure that they don't get beat up in this case densmore it's important to recognize there's no evidence of any pattern o sorry now addressing the medical issue the medical and differences you regrew the dunny him the most exposure to mr young during the three day period that he was allowed to language with his injuries to address judge rogers point that he made earlier the video was reviewed by michelle when she did her investigation i think a day or two after  his injuries were discovered and she described his injuries as including a bloody face and limping two things were important especially regarding then when you do meals you're supposed to have the inmate come to the door the meals are passed through issue in the inmates are banner is checked they're not allowed to they're not allowed to give trays under the policy they're not allowed to give mil trace to other  s to deliver to an inmate if an inmate doesn't respond or come to the to the gate to go to get his meal that should be noted in the incident reports and it was not enough so you take the meals and is just more as you indicated earlier the headcounts also under their policy requires officers individually to go into cells  check armbands and scan them for a period of time during this time period the young was in the jail they actually use scanners that the officers used to scan the armbands it's impossible to think the denny and some of the other officers who did the head counselor sent out a brief would not have noticed his injuries if they had complied with the policy regarding head count so i think there is substantial evidence that judge bertelsmann overlooked that would support easily supported eleven men amendment deliberate indifference crime as to the medical care for the three days he was essentially ignored and had to suffer with a broken the hand contusions to his hat as the evidence showed that the scanning used was operating off and on but they would still have to perform that physical function judge more they would have to go in and check the armband whether they scanned it or not when they did the headcounts otherwise there's no way of telling whether the person assigned to a sells actually in that cell so i don't think there's any question that they in fact would know by complying with the jail's own policy regarding head counts and meals  michelle just very briefly michelle on the st incident that you know it's an er incident report i think it's april thirteen or fourteen made a decision to move call out of a dormitory for thirty days it's in her incident report she had that if she had that authority then she certainly could have done it at the time she recommended request cation thank you for your time and that we appreciate the argument from both sides and the case will be submitted