good morning i'm it please the court sara hunger on behalf of appellant timothy barry i'd like to reserve two minutes for rebuttal this one time in order to prevail on his claims mr berry must show defendants knew that forcing him to be on the asphalt and leaving him there for nearly an hour would cause him harm in order to prevail on summary judgment he must show there is a genuine just feet of material fact as to that issue we submit the mr barry has satisfied that burden evidence shows up on a go himself sent him to kneel on the hot asphalt he admits it was very hot that day it was ninety five degrees outside in the prison open yard in the middle of a desert we with the facts here his problem appeared later is that correct that's not correct and he was wearing pants that that's on the record he says that he was wearing kind of then pants that were issued by by the president in terms of what happened afterwards mr ber did go to the infirmary the nurse notes that there were scratches and abrasions and then later that day it says that he actually had deep second degree burns now the other side you know says well we don't know what happened in between there but but that would mean that mr anyone who's accidentally stepped on hot asphalt knows just how painful that is in the summer so he sends him over to kneel on hot asphalt then very cries out for help and he falls over from the pain and neither obama nor bishop help him they stand idly by instead an officer picks them up put them back on his knees and makes him stay there for forty five minutes until albannach o comes back and releases him so i panic was there at the beginning and he's there at the end now obama says that he didn't hear any of it but there's a record and there's there's been subdued that's and the weapons had been found under mr various version of the facts the two weapons and obama coast says there were only two weapons he was looking for the second one so there's a genuine issue of material fact as to when the weapon was found was it before they sent barry over or after so so under mr barry's version of the facts they have had the yard to do it all the inmates are lying down and the weapons have been found and that's when they go and they send him over to neil and even if that initial act w constitutional then when barry is crying out in pain he's falling over at that point certainly when everyone's ignoring him that's a constitutional violation even if the initial act were not councils or anything of the record regarding with  and the same and the same goes for a bishop in addition to all bondage co you know bishop says that he wasn't there mr berry says that that he was and again we have a genuine issue of material fact on that issue and so mr berry is entitled to a trial and and in fact this case is just what trials are for you have the officer saying they weren't there they didn't hear it you have circumstantial evidence and mr berry's testimony saying they were there and they probably you know they did hear it because it was only thirty yards away and he's crying out certainly so with respect to excessive force in the context of a prison disturbance this court has addressed it in furnace martinez and johnson and there are also similar facts and the supreme court's decision and hope in which the the prison officials send an inmate to be tied to a hitching post in the in the hot sun and the supreme court said the eighth amendment violation there was obvious even though there had been no similar facts but in those cases the riot was still ongoing for example in torres there is an eighteen inmate fight that was just you know the guards had shot off warning shot to use pepper spray and they were still attacking each other and that is when they applied force and the court said that's ok and similarly in jeffers an inmate was shot but that was as he was being stabbed in the middle of a riot by another inmate this is very different this is actually a lot more like johnson johnson there was a riot outside on the yard and the guards used force the court said that was fine and then the guards subdued everyone and then they left the inmates outside in ninety four degree heat just left  there and so so they left him there in ninety four degree heat and the court said that once that one thing made her subdued then it turned into excessive force and that's a very similar situation also cried out in pain and if they were being hurt in that same way then yes they would have a claim if the court has no further questions i'd like to reserve my remaining time the morning may please the court actually harlan representing sergeant on a continent bishop in this matter your honour's every issue in this case from the excessive force claim the deliberate indifference claim even the qualified immunity issue can all be resolved indifference claim which requires a showing of subjective awareness of the risk of harm and deliberate indifference and counsel argue that some point he fell over in pain and cried out and they one of the guards came and actually put him back in place when that provide some sort of notice even if even if the initial actions in forcing him to be on the asphalt were reason one of the circumstances no would not your honor and that's because there's no showing in this record that mr barry has presented evidence that either sergeant lead sergeant tenet bishop knew that he fell over knew that he cried out mr berry never says they looked at me they saw me they spoke with me i spoke with them said he makes allegations that pertain to three other correctional officers who were charged with supervising him in two others while they knelt but does not make a similar showing as regards to these defendants and the the overall loose in that area and one of them could have come into contact with this second weapon and they had a duty they had a duty part to protect the yard to protect the inmates to protect the staff working there and secure the facility  so what they did was they issued an order that three other correctional officers would escort these three non compliant inmates to the opposite end of the are to kneel and face a concrete wall until they could be dealt with but there's no evidence in the record that shows that they stood nearby and watched that happen mr perry fails to make such a showing and therefore he he should not survive summary judgment but bottom line from your perspective  deliberately indifferent to number one his pain or that there was anything really that's correct he sort of in vague sense says that you know the defendant supervise and that's the most promising allegation made anywhere in the in the declarations or the deposition of these individuals supervised but there's no detail as to what that means and you know i've been supervised often in my career i've done some supervising as well and i'm sure the think of the seventy three individuals your honour's and i'm sure it's well settled that that doesn't necessarily mean that you're standing over someone watching them do a job that you delegated to them there's a dispute as to when the weapon was found well the claim that mr barry puts forward is that a weapon had been found before he was ordered to kneel but he doesn't base that claim of competent evidence he doesn't tell us that he saw this happen it doesn't tell us that that either of the defendants told him that this happened and so therefore he's basically asserting some sort of blanket allegation without actual evidential support and therefore it's not down to have the inmates searched and therefore knows the purpose behind that order he has personal knowledge of that fact where mr barry does not i had asked posing counsel about the concept of qualified immunity at least for one of he right was defined as such a police officer may use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others and the supreme court rejected that definition for the clearly established right in that case and supplanted it with the following officers acted reasonably in fronting a reportedly intoxicated fugitive set on avoiding capture through high speed that he killer flight who twice during his flight had threatened to shoot police officers and who excessive force what's more appropriate is something along these lines can an officer order an inmate to kneel for the duration of a prison yard sweep in order to neutralize a potential deadly threat and during an ongoing emergency when they are reasonably believed to be in possession of a deadly weapon there are no cases cited in mr barry's brief that support such a contention because that that is not a clearly established right and therefore the officers have no notice that their acts as they pertain to the specific  and to point the officers involvement first simply because there were also three other officers on the yard does not somehow absolve defendants obama cohen bishop of responsibility there could be five liable defendants in the record or the context isn't clear it's because defendants did not follow the local rule and lodged with the district court the entirety of the deposition transcript and we filed a motion to the right that's correct the supreme court discussed in that case all of the cases that had gone up to the supreme court on that issue the court had denied qualified immunity and there were no lower court cases stating that and that's in that situation where there's a high speed car chase and there is someone at risk there's a police officer at risk on the ground that that is an unreasonable use of force here by contrast the only time a similar case has gone up to the supreme court hopefully pelter where an inmate is tied to a hitching post and left out in the burning