good morning i name is christopher rule and i represent german virally the fundamental problem here is that the district court did not consider the type of circumstantial evidence  in requires to be considered circumstantial evidence of what circumstantial evidence of mystery arose state of mind circumstantial evidence that she was deliberately indifferent to mr vireo leads the risk to mr virally and the people in his position so in other words in there's that i think there's an important passage in farmer at page five hundred two in which the court says this question of whether at prison officials deliberately indifferent is fact that the risk was obvious and that is not what the district court did here well what i mean by risk is obvious obvious to whom well well first of all if you know what is the risk in this case the risk is of an inmate being beaten while after he requests protective segregation and with an at risk inmate can then why should i be it's obvious here because for a number of reasons first the basic facts of what was placed in a cell with thirteen other inmates of different types when he requested protective segregation based on a very specific need the articulated to the prison officials and it that you're not so in a position a director of department you have to establish a culpable state of mind on the part of this human being that is correct at trial we have to show up so we have to prove her subjective state of supreme court remanded because there was a question of fact you know we know what happened in farmer what's the evidence here that she was deliberately indifferent there's real meaning to both of those words absolutely and first there's the sixty seven is not what really controls this case because this is an intake case these people had been classified yet there was a different policy with respect to somebody who's coming in for classification you asked for protective cause the first thing we did was we put it all together that the other policy you're talking about is the second step in the way the process work that's the way i understand what you're classified with respect i don't believe that's correct i think that it was what was the policy and people such as your client that they were supposed to that because he was not classified that's right he was supposed to be isolated and he was an isolated example i carried it under the governing regulations it doesn't define isolated and that is a question of was it mean to be isolated again our experts that isolated means put him alone put him at least the very least put them with someone who has the same sort of protective sergei she needs other words at some point mr bradley was put with other sex offenders and we what context in her in her deposition she testified that she believes that isolation she said eventually inmates won't be placed with all sorts of other inmates when they request that's what your case really is you're trying to tag out the director with responsibility for a policy that she didn't have anything to do with only eleven weeks after she was in office and you've got to show deliberate in difference do you what's the jury instruction that defines deliberate indifference if you looked at that now i don't know what the what the jury instructions see that practice player the first thing you do when you file a case is you read the jury instructions because that tells you what the elements are and if you look at the pattern jury instructions and i circuit nine point two five you'll see that there's a lot more than just well she's responsible you have to show that the the official knows of and disregards an excessive risk the inmate health or safety  both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference i don't see where you have anything even remotely close to that in this case dealing with a director know anything about mr barly personally he never had to meet her orders and she never did know about his circumstance which he needed to know what we need to prove issues aware of access to risk the person of mr crawley's position and that's what the test so day one polo you're the director she's immediately responsible personally for all policies in place if this had happened on the first day she was the director i would even if she had brought in from been brought in from outside the department of corrections yes for two reasons one she had thirty years of experience in corrections so it wasn't like they brought in hopefully they wouldn't bring in somebody who had no idea what they were doing and second i would hope the official would understand what the policies are and there was no quite no dispute here in the record that was inconsistent with the policy she did not isolate prisoners in the alhambra facility who needed to be isolated who wasn't of touch you if you had just project process to go in there and they were in the process of doing that when it just happened right judgment and endurance has to be drawn in our favor your own expert says that there are people who drive who lie falsely to get p s status so they can beat up other people that's one of the dangers on the reasons why you should have been put in that cell that's correct well  don't so on one hand you're supposed to accept what he says at face value on the other hand you're telling us they live which is it's it's well it's both however there's no allegation mr barly lived here and they already knew he was a sex offender he every state of number of people who knew that about him that's deliberate indifference now what's your response i think that's the thrust of his argument why was that not and that's pursuant to the boston within different that would assume your honor that that interviewed by a correctional officer that particular correctional officer he told two things i'm a child molester i've been convicted of town hall station and i am afraid of an individual who is a member of the mexican mafia who was at the maricopa county jail officials at the time of his intake like all other inmates who are being processed they are totally generally when they come into process if you have a problem if you fear for your life if there's a situation please eleven weeks we also acknowledge that one of the things she knew of is that proximately a year and a half before that dui sixty seven her director's instruction sixty seven which her pertained to segregation had been implemented implemented as a case that was ongoing litigation for a number of years as the record reflects for approximately i believe it was seven eight years prior now we also know that director sheree row the individual who's been sued here had no knowledge whatsoever that from the time this policy had been implemented and the manner in which it was practiced at the alhambra facility that no other sex offender said we don't care under this policy you don't qualify and we leave you out in general population with the masses of inmates who'd been coming into the facility that day that would have been a substantial risk but what we have here is we have an individual director so when you gave your representation that there had been no issue had there been convicted child molesters included in the population previously one can only assume your honor that and eleven weeks or in the year and a half proximately twenty i sixty seven that given the number of cases that come in and out of the arizona prisons of child molestation that that at one point or another someone had to come through that there was no evidence that would  fact because then i will go under the words that we find in the ninth circuit model civil jury instructions there fishel them would be aware of the facts from that which the inference could be drawn and i must also draw the efforts but that's not we don't have that here what was what was she before she became the acting director your honor i believe my recollection serves me correctly director streamer ok from the state of missouri where she was the director so she came from outside the department she not the director that's correct and in fact as director she wrote during her that position indicated the actual implementation and our practice is even further down from that actually the warden of the complex which would have been the phoenix complex in this case alhambra being a sub unit of the phoenix complex where out of this court must affirm not only on that basis but also on the basis that there was no substantial risk in fact the lawsuit reads that the policy itself was deliberately indifferent the policies of weight was implemented d i sixty seven interestingly enough a review of the record shows that placed with males with that person who considers himself a female so that was a pretty obvious risk and that i think that the space for that particular statement that you're referring to we don't have that he was a transsexual never complained about being put in the prison or the cell but what good does the case have any evidence and it that this  status had been attacked before now there's no evidence on the record i don't believe on either point and selves to i'd have to assume this is the first time well yeah on summary judgment there is a lack of evidence on that point and if there's other evidence