court is aware of this is the nd time that this case has come before the court this case came before the th circuit on a prior summary judgment in that case the court affirmed the district court's summary judgment on the episodic claims that plaintiff had raised and then remanded the case to the district court to determine whether in fact issue existed as to plaintiff claims on conditions of confinement the district court then granted summary judgment again on pla claims for conditions of confinement and here we are there are several errors raised in the briefing but today i would like to focus the court's attention on two of those errors one is the district court's finding that there is insufficient evidence of causation to raise a fact issue on the de facto policy that the district court recognized was appraised by the evidence and that is a de facto policy of failing to complete this suicide intake forms and assess suicidal tendencies at intake the nd error i'd like to talk about is the court's narrowing of that claim and failure to find evidence sufficient to raise a issue on a broader de facto policy of a systematic failure of the on county jail to properly assess and evaluate the mental health and medical needs of intoxicated detainees coming into the jail court talked about and the fact that these were really just matters of foul documentation the court noted that there was no evidence in that record that had for example what's called the continuity of care query the  matters of fall documentation so while the court did find evidence of a pervasive pattern sufficient to raise a fact issue on a defacto policy it found there was no evidence that failure to complete the screening form  of there were a couple of additional documents but the record before the court below contains three additional depositions of the jailers who were at the young county jail when this incident occurred it c declarations are reports from expert witnesses it contains transfer of the actual phone calls of mr simpson to the young county jail and a significant import here videos videos were produced footage from mr ms simpson's arrest as well as her time at the young county jail so all of this evidence is significant and it's enough to raise a fact issue on causation so that's that's one manner in which the court's analysis is flawed this is not a matter of follow documentation and the nd the nd point i want to make there is that this is not not even not just a  clerical issue but this is a failure to actually properly complete the assessment and it's not just a suicide screening and if you look at the consistent testimony of all of the jailers of the in the record before this were not answered on this form have to do with the mental and medical state of the pretrial detainees for example the very st question on this form is does the arresting officer or any other person believe that an inmate is at risk due to medical condition mental illness mental retardation or suicide concerned that question was not answered the additional observations that were not filled out were not only not filled out but they were not considered in the assessment process these have to do with things about pertaining to misunderstands demeanor her speech whether she's observed to be under the influence of drugs whether she's a verb to have visible signs of self harm and whether the screener suspects mental illness now it's not just a matter of feeling as these out it's a matter of taking these observations which are critical into consideration and that's critical to the causation analysis and to respect one of the overwhelming uniformed testimony of the jailers in this case as stablished that they accepted these self report answers from mrs anderson at face value regardless of the fact that she was intoxicated and clearly impaired and regardless of the fact that there was ample evidence at t jail to the contrary for example on the record before this court jailer rich testifies in her deposition that she was in a sense an injust and medication yes she spread i'm out on the broken table right across from missteps and jailer it walks over and she actually observes and handles some of the medication and yet i am says no and what her testimony was is that i except what she tells me i go by what she tells me that was also strikingly consistent with the testimony of jail in jail or byrd who said yes mr simpson did call me he did call the jail before even arrived and told us that she was missing she was located pursuant to a missing persons report and that she had threatened suicide but i don't know if i told  jailers i think i would of this was this testimony it doesn't really matter because the evidence in the montana case involve a failure to to then fill out the bottom form of the check in suicide form or not ye that was never confirmed they didn't fill out the assessment at all i don't even know that it was the bottom section but there was there was a definite failure in that case to screen him there was also some are felt will years in that case of that case was not running a record that it should have been considered before she was put in a jail cell but there reason that it wasn't was because she answered no she had never received prior mental health services and the clear custom and practice  was to accept those answers at face value despite the fact that she was intoxicated and despite the fact that there was overwhelming evidence that she was in the midst of a drug overdose now one thing i want to point  and bringing up another similarity in this case in montana is the fact that the custom and practice the clear custom and practice of the court is directly contrary to the written policy and i think this week's to causation because if you look closely at the written policy of the jail that wasn't followed these critical observations have been made truthfully made and taken into consideration i mean you can see her on the on the video what her her physical status was the detail would have been under a duty to take additional action they would have had to do further assessment or to classify her differently district court erred because if we accepted the single day fact the policy that the district court found the failure to complete the thing the court erred legally as to its causation standard by embracing sanchez one is that raises a fact issue on causation in its conclusion that there is no evidence in this thread and the fact issue is that the failure to complete itself caused a lack of medical care because it's designed to get medically or it interacted with other completed it would have if the observations had been made and the assessment had been done properly it would have led to her being properly casa fide more closely monitored likely receiving medical treatment however additionally this policy of not completing the form the constitutional violation of causation is exasperated by additional de facto policies that weren't considered by th which was a clear policy of we don't consider outside information we're not going to contact him h m r if you're intoxicated and you say they were considered i thought in you i'm sure you know the order pretty well i thought in footnote eight he actually lists the jailor testimony and suggest that it isn't their policy to just put people in the bubble and wait till they sleep it off in this case i don't think the court considered the entire round of evidence before it the court did consider and dismiss some of the testimony for example the expert witnesses the court knowledge there was expert testimony in the record that a that jail operations expert that the protocol here resulted in the jail ignoring critical information and not properly evaluating classifying her and b that there was medical expert testimony saying had she been attended to with medical treatment sooner she would have custom or practice of this court scuse me of this jail to not consider outside information jail or dance and sign the arrest report but said he did not read it jailer bird got phone calls from a family member under the suicide's of the jails in britain policies that information is supposed to be considered but it was their clear policy not to consider it a jailer rich testified very clearly she would not have a considered even seeing the medication all  jailers testified we took her word for it that was their custom and practice so to the extent that the court below i found the evidence insufficient to meet that pervasive standard there is plenty of evidence to raise a fact issue and let me ask you one thing before going your time's almost  out what is the most meaningful distinction in light of the court's prior rippin this court for pinioned what's most meaningful distinction between the episodic act or omission claim and the conditions of confinement claim and you just went through the factual considerations right your honor well the conditions of confinement claim here it's aimed at the systematic failure of the jail to complete a proper assessment and evaluation of the mental health and medical needs of the intoxicated detainee once they arrive at the county jail before they're placed in a holding cell to sleep and the episodic not i mean those are individual failures of the jailer's you know episodic by definition means started to try to take this case take a square peg and put it round hole as the expression used in the city have done it and it doesn't fit doesn't fit it all but there isn't there can almost identical jail or testimony as there was montana in other words rich in cook and the others said we let our we have a sleep off policy so we really don't even fill out the intake forms and if the husband calls and says she needs care the deposition says she has been a jailer in young counting in jack county right next door for fourteen years she said mom i approach is to fill up the entire floor and then proceed with the rest of the book in if they are able but if they are so intoxicated that that's not going to be effective i sometimes let them sleep for a while in this case she was back in so many times and she had conversations with ms simpson according to the record and that evening well let me let me go back one step so if you look at the  form as judge o'connor has a succession of of other judges you might ask why would this jailer not fill out the bottom of the form it takes just probably couple of minutes so she was asked said in her deposition  position is taking place more than five years after ms simpson got it she says i don't remember when i was something must have come up i thought on remember just did find there was a policy of whether that was really the policy but the testimony of the jailers indicated that they did not fail the fill out the bottom of the form all the time in the jail standards commission came in as you've seen in the record on the very day that ms since an died and they did a random sample of those suicide form and and reported that there were various forms that had not been so and please you know start filling out the form in its entirety to back up a little bit what if what type of information specifically is the bottom of the form designed to collect and who sees that once it's filled out and that judge that that is the reason that the answer to that question presents them a real red herring in the case because the fo bottom of the form is just recording what the jailer's observations were at that time and in this case we have the same jail and we're not talking about a jailer for several months later who looks at the form and can't tell him what did the jailer rich think other jailers that are on duty at the same time do they have access to that information or they are they have direct interaction with the in in this instance in this instance there are three jailers on duty for eighty six in that which was the sufficient number according to the rules and if there was one in the control jailers taking care of eighty six inmates and processing people as they come in so when you look at the record and say i wonder why misess rich didn't fill out the bottom of the form it seems so when all of this this incident happened is church night in the jail ms rich testified that a jailer has to go around and ask all eighty six in if they want to go to church sunday night is the th of all of the cleanup of all the book in the area sunday night is the night when the female trustees go in and clean up the kitchen so there was a lot going on in that jail with just two jailers out on the floor so perhaps that explains what happened in mrs rich that night but in the end judge will conner's conclusion that there's no correlation between this and what happened to the lady she was intent on taking her own life she lied to the jailer she lied to the police she lied to the e m s so i to mention a much younger ask about that in particular absent an inmate claiming to be suicidal what would trigger the transferring of an inmate to a hospital on a potential suicide watch well for suicide watch absent as a direct statement right to the testimony would be if they were really acting strangely for example if they're acting strangely even though they denied that they were to distinguish between about the someone's merely intoxicated or suffering from a drug overdose if there really was which would then require hospitalization testimony and was completely consistent with all three of the employees whose depositions that they took to remit that those people who are really highly intoxicated they will send directly to jail they will not allow the arresting officer to didn't record their personal observations and that he said there's a genuine dispute of back as to that so that we were given that and then if the jailer testimony as in montana is really with people that come in intoxicated who deny that they're suicidal we let them sleep it off and in that context i guess it's a variation of the question was asked before how would this deal ever catch somebody that wanted to commit suicide but denies it if they're not going to fill out their observations and then the husband the outside information calls and says watch out she is no matter what she says she's seidel and the response is well we'll wait and figure it out after they sleep it off and then they're not monitoring their troublesome prove that the or our supposed that lack of that door we shut that door in montana right the court was quite explicit in the conditions of confinement case you don't have to show another violation you don't have to show that there was another death ok so that's not an issue that is crucial at all we've said as a matter of law you don't have to do that but but manteno showed that there was a consistent policy in the jail to ignore people once they got in the bulbul and that caused the harm to the prisoners here we don't have evidence of ignoring people when they're in the hol and moreover cheap the appellant's want to argue the judge that we that we failed to monitor that we closed ourself off from outside information what happened to the  investigation was well underway by the texas ranger tried to transfer the video from one place to another place to give it to the ranger and he succeeded in musing a administrator who thought he knew how to transfer some of it got lost the critical part about her coming into the to the jail they say and the part about being in the from two am on regrettable we're very sorry it happened but it doesn't influence the outcome because for example we still had electronic evidence of jail cell checks being conducted back to mother point counsel is going to get up and say that is just what we have and then quote administrative cook administrator cook and jailer rich saying that's just what they did they had a sleep off policy but you'll say that's not what the evidence shows each of them testif these questions they call the emergency medical people and they come out and there's videotape of this area out there for an hour they released her to go to the jail then the jailers know that she has seen the iem lives the testimony from this rich was i knew the policeman police officer for very trusted god he's not say that when they do certain in their brief repeatedly that poor jailer rich the woman at taking all these pills based on her interaction with officer forte that in the record that's what she actually knew not that she had and that the arresting officer told her this woman has taken twenty five finally there's a there's been a lot of discussion about this mysterious c c q the continuity of care aquaria that they're supposed to do so much confusion about that texas law requires jails to run this test to see if the arrestee has been treated in some mental institution the comes back positive or probable they're supposed to tell the ma e who is going to have hold the bail hearing the next day look at this c c q result because you may want to sack to her mental or his mental condition into your bail decision that's all they're required to do that's that's what the law requires them to do with a c c q a mish rich testified she would do more if one she read the c c q considered good if it was positive she called a mental health people and have them come out in this case it's sunday night and we have an impaired person in the testimony was consistent never rebut it by the appellants the male health people questions at face value and the answers you wouldn't they would not be able to the overwhelming testimony established they took those answers and face value and did not make other critical observations the nd question was or there was a question about what what would transfer what would trigger transfer to a hospital so this is an interesting question before the poor and it would be critical observations that were not made in this case that should have been under the written policy of the jail if a person comes in exhibiting symptoms of serious medical needs they are to be taken and given a medical treatment or to be clear about this mission if the appropriate observations have been made in this case that should have been done and was not so there is a clear written policy on what triggers taking somebody to the hospital now in terms of alcohol intoxication i think there was some some reference to testimony well you know maybe of this or that's going on they'll take on the clear testimony there and it was in line with for the most part with the written policy is that if someone isn't intoxicated on alcohol we know there be a c such as an  very critical another question was what does the forearm designed to do what are those observations designed to do and the written policy makes clear that the flu arm the screening form is a starting point it says indication of suicidal and mentally disabled inmates commences with the filling out of that form but the policy clearly states if a pretrial detainees is incoherent or unable to answer the pursuant to their their custom in practice not to do so so the purpose of the forum is posed to be a starting point in the assessment had critical observations been made additional steps would have been needed to have been taken and classifying  case in montana and frankly none that are meaningful to this court's review one thing that is significant to note is that mn tauno was an appeal following a jury verdict there were a lot of witnesses in montana oh this is an appeal following summary judgment the plaintiffs were not required to conclusively prove their case we were required to raise a fact issue and we have done so with a very consistent pervasive testimony just as an montan the defendant stated that calling a medic is one of the things that distinguishes this case from an tonto i would disagree with that i think the fact that the officer saw signs and symptoms that that he felt  such a nature that this particular individual needed medical treatment should have been a huge red flag for the jail because she was not released to go to the jail she refused treatment all they did was take her she refused treatment refused to go to the hospital when he got to the jail and told and then he called a medic to raise the huge amount flag because he's all signs and symptoms of a serious medical need which triggered their written policy disagree with so much of what was stated in regards to the record no he is incorrect there the video evidence only establishes two checks there are six hours and missing video footage we have no idea what happened with miss i'm sitting at the jail between the hours of eight pm in two am during the actual times that we have video footage available which were between the hours of her original book and and then when she goes in the cell from six fifty two to seven hundred and fifty two there is when check now the one system reports more but you can see on the video when the door opened when the window opens and there is only one and then between two am and three hundred and thirty there's