for a prison official to be liable to prevent a future harm prisoner must essentially prove two things the first is that he was incarcerated under conditions posing a substantial risk of serious harm and second prong that the prison officials knew of and disregarded that risk i think the first pong is probably the less contentious from all parties would agree that we have a situation here where clearly the inmate is incarcerated under conditions posing a substantial risk because rival high security prisoners who are in a special segregated unit meant to tell them apart apart are permitted to leave their cells without any restraints i definition work what faith of mind you need for the second prong second prong is the subjective standard and i believe we have that your honor with respect to some objective we're able to establish that by wa let's let's say he had an up electric set and he fell on the keyboard and started punching much of buttons that wouldn't be good enough right no of course not there he will be involuntary that that he we have no statements by office that he held that he had it in for glamor right we did we have no statements of that sort so what do you have we have three i believe three objective facts one we have the visual cues we know that officer kelly saw the inmates in the shower and we know that officer kelly could seeing that the two cells that he opened were full so there's no painting a logical purpose in opening cell doors to allow glenn or the other inmates were turning from the child into those cells if those cells are already thrilled and we know that after kelly had the visual cue right to see that those cells were filled that's right and if if you was deliberate that would show that would show that would why he was opening cell doors for cells that are occupied by the maximum number of occupants for that cell i think that's one of the fact i indicated that there were there were three i think that's one of jack in fact i think once you look at the fatality of the three one of high desert state prison a maximum security and a pelican bay supermax his entire job with all due respect to him is to sit in to in a booth and push buttons and let me ask you this i'm tempted to what do we know anything about the door with the other officers were waiting and their capacity to enter on their own without waiting for kelly to come in well let me go with your first question your honor i think you're correct works essentially that wasn't a question we don't know much we do know that about at about believe it was six thirty five is when the office of the inmates were turning from the dining hall at that particular time the doors were open perhaps at long but they wait for a time until kelly comes and lets them in that's correct did they have the capacity to open that door without waiting for kelly to come i believe my question and short answer your question and i believe that's a material fact and disappear we don't know if they have the have the ability or the capacity to open that door the fact you don't know doesn't make it a material fact you have evidence that they could have opened from the outside well the evidence is this it makes no no peny logical sense to have only one officer particularly officer in that unit with the capacity to open the door think about it from a prison stam point if that officer is injured for any reason then if the police are correct they know other officer would be able to get into that unit it's a logical to have only one person be able to key in to that door specially officer who's in that unit up areas recently in front rather than just moment at least positive knowledge that yes they can get in because somebody came  that is correct the only other thing i might add is we are dealing with thirteen correctional officers it's not just one correctional officer responding to that c section refund we have thirteen officers involved so i would imagine that  the entire sort of battalion of this segregation unit of officers responding to the l a if not a single one of the thirteen officers has a key to get into that section i think that's highly suspect he saw that inmate paused he mistakenly opened up that cell door in the ensuing melee he inadvertently opened up a second cell door cell to thirty two and so what we have is we have a declaration from the and let these guys beat up on him lessard for whatever reason he had that isn't that exactly what he'd say he'd say well the way i'm going to get away with it is by claiming that all one was an accident and the other one was was and i was a different kind of accident inference that the court is implying here if there were other similar incidents if there were instances in which this officer had said well i want to get these guys what we have here it looks like is the instance that the court talked about in  case of jefferson versus governments where we have constitutional we have a situation that occurred they could be a constitutional violation and it depends upon the motive and i think that the court in that instance talked about whether c or y and if it were one motive it would be not a constitutional violation if it were the other motive it would certainly be a constitutional violation and what we have here the only evidence we have in this case is officer kelly saying i made an egregious mistake there's no dispute about that what we're talking about is that there's a there's a fundamentalist didn't and the question is whether it's a mistake that's correct your honor but there's no countervailing evidence apart from what but but my point it may be possible for a jury to look at this and say this is so improbable that the jury would be within its proper scope to conclude that they don't believe and i'm not saying i do or i don't i'm saying i think it may substantial efforts they undertook to quell the disturbance it again if we're going to be talking about inferences i think a different inference could be drawn if these two if these two cell doors were opened up and nothing immediately  order officer kelly to open what's called the section door that's the section in the area in which this in which this fight was taking place and kelly didn't open the door until ordered to do so that's correct your honor did it only and respond that's correct your honor do well it's not in the record i do know that at the at this time in two thousand that the procedures for the secure excuse me not the security has a new unit the administrative segregation unit provided that if an incident is occurring that door is not to be opened unless it is ordered opened by a supervisor such as sergeants america i mean we do have evidence in this record that officer kelley immediately open the door once he was ordered to do so by sergeants america that's in officer celebrators declaration however there is there's nothing in the record that shows that that in fact was the procedure discovery i don't believe that there was any honor in other words there may be a fair amount of evidence available mr glenn now counsel depositions to find out a fair number of facts i mean what we have is evidence put in by your side that's correct that's correct  keeping in mind that in the order of service mr quinn was advised of the provide other provisions of ran versus roland where he did have an obligation to obtain this kind of evidence there was no stay on discovery there were no stay out no stays on the proceedings tories or requests for production of documents in short your honour's the evidence that's before this court is officer kelly's declaration saying i made a mistake and i inadvertently well he mistakenly opened up the first cell door that's clear from his declaration when he saw the inmate was in front of the south of the cell he mistakenly opened it up believing that that inmate i believe it was mr valencia could enter into that sort of should enter into that cell when that door was mistakenly opened before he was able to close it two inmates did come out and start running down the tier there is no evidence that officer kelly was able to see into that cell determine whether or not the cell was occupied the bare facts in this case or that officer kelly in ad instance made a mistake and when he was trying to stop what was happening he further declared that he and he was asked by an officer who had responded to this incident why was sell two thirty two open i told her i don't know why i had opened it the only explanation i can think of is that i press this button while i was pressing another button so it's inadvertence he inadvertently opened up that second door so what we have before us is we have a stake and we have inadvertence and we know from both farmer as well as a stele that neither of those can rise to a constitutional violation thank you