not entitled to qualified immunity in this matter noting first that jurisdiction before this court is proper because they raise qualified immunity in the district court at least five times and the district court's decision both this court has already rejected mr barry's arguments that the qualified immunity was not properly re in the district court and in ferguson said that it refused to throw the baby out with the bathwater and that  declined to to go that far noting that references to qualified immunity were mentioned in the first paragraph of the officers motion for summary judgment and also that qualified immunity west pepper the brief right this qualified immunity and then after the district court entered their recommended this position and its objections see again brief the issue of qualified immunity i believe a reading of this court decision in ferguson leaves no question that qualified immunity has been properly raised in the district court i'll turn my attention to the merits on qualified immunity because it has been properly right occurred after october sixth that that is correct your honor ok so if let's assume that they had been aware of these incidents and either did nothing or impose sanctions they'd be in violation of a clearly established right now your honor why not because mr those facts would not support an eighth amendment violation and it wouldn't wouldn't be enough for a failure to protect you know your honor for a couple of reasons urges this court and now answer your question first and come back to this to to ignore the allegations in the complaint an amended complaint even if this court consider the allegations the in the amended complaint post october constitute caught constitutional violations and so even if they were aware of those mr barry allegations we feel fail to rise to the level of a constitutional violation even if this court thought that a complaint about an inmate shaking his genitalia and alone for a constituted a constitutional violation the undisputed fact demonstrate that the officials did not disregard that as your honor mentioned there were sanctions imposed they had no no no i think the sanctions were against the complainant against the plaintiff here  no i understood the record to be that they met with mr barry to resolve the issue issues against the other parties that he was complaining about that's the october sixth meeting yes your honor ok i apologize i was talking about incidents after that for which he says judgment faced with this reality the district court then relied on both the original complaint and the amended complaint as if they were properly sworn affidavits and used that to controvert that they've been a fact and both of those decisions did not enter into the record their own affidavit but as mr berry concedes this case is limited only to the allegations that occurred after october there are no allegations in the record that mr court and group reviewing in conjunction the amended complaint exhibit a attached to d c the motion for summary judgment which is the statement he filed it is clear that all of the allegations that he ma not required to to contradict bert a nonexistent fact new since nonexistent because it's not a verify because it is in the amended complaint is it not in the amended complaint there are no allegations  that after the october sixth meeting he had a conversation with a d c employee who is not a party to the action that on october fourteenth he made some complaints to security members who were not party to this action he alleged on the genitals at him but he doesn't allege that he reported that activity to anyone and then he alleges on october twenty second that brewer threatened to beat him up he doesn't expressively allege that he reported that complaints and what they can consider when they consider not they can and cannot consider a verified complaint and whether they have to hold them to the strict letter of the rule about responding to motions for summary judgment as not something we normally want to get into your honor the district court in its order are requesting that mr barry respond to the motion for summary judgment by that statute that requires that affidavits be sworn under a penalty of argue that notwithstanding mr barry's allegations of crude and rude behavior and the instance of one verbal threat does not give rise to a constitutional violation and that argument is consistent both in the district court and here before this court but he does allege that he was french and and harassed and given discipline for filing a complaint that would clearly be a violation right if he with respect to a retaliation claim but there are no law school student argue on behalf of mr perry we're glad to welcome the court this court should dismiss the appeal for lack of jurisdiction and permit the district court to resolve mr barry's case because the district court below denied summary judgment on the merits under the principles of rule fifty six and such court mentioned qualified immunity but it was not able to apply the broad principles of qualified immunity to the facts of this case because the arkansas officials and their motion for summary judgment did not make either prong of the two prong qualified immunity an the district court addressed qualified immunity only in a footnote to its holding that denied summary judgment on the merits under rule fifty six in their motion for summary judgment the arkansas officials did not argue that no constitutional violation occurred they argued only that mr berry failed to present sufficient evidence to show that the officials knew of the threats against him and most importantly for the jurisdictional issue to say they did not argue that the law at the time of their conduct was not clearly in the footnote the district court went out of its way to address these issues but it did not have a reason denial of qualified immunity and only in a footnote addressed the issue after denying to deciding to deny summary judgment on the merit and their motion for summary judgment the arkansas office szell's the not even expressly raised qualified immunity they incorporated their brief in support which mentioned qualified immunity but again it only set out the qualified immunity standard and made the evidence efficiency argument that mr berry narrative was patently baseless they did not make either prong of the two pronged qualified immunity argument which was necessary in order for the court to deny qualified immunity in a reason argument is directly contradicts ferguson be sure in ferguson the court held that it will not exercise jurisdiction where the district court order reads like an ordinary summary judgment allowing deciding if but the footnote does deal with both prongs of qualified immunity you know i'm qualified immunity as an affirmative defense it was the requirement for the arkansas fish oils to raise both of those argument here the footnote addressed is whether or not the law at the time of the conduct was clearly established but again this is the district court going out of its way to cover cover that portion of the argument which the officials did not make nowhere do they argue even before the court today they did not argue that the time of their call the law at the time of their conduct was not clearly established so in that way we lack a reasoned denial of qualified  immunity and as i was mentioning in ferguson the court held that it will not exercise jurisdiction where the opinion reads like an ordinary summary judgment cooling which is exactly the situation that is before the court today the district court's eight page opinion reads like an ordinary summary judgment ruling and the district court correctly found that the argand sawfish evidence left important facts in dispute regarding multiple other incidents that mr berry alleged after and not addressed at the october sixth meeting by not addressing qualified immunity excuse me by not arguing qualified immunity sufficiently in a way that ferguson held the defendants must do the district court was denied of the opportunit to apply a qualified immunity in a way for each individual defendant as this court held has held as necessary the officials only raised one broad statement of qualified immunity for all officials and it was denied of the opportunit raise qualified immunity at the outset judge her under during counsel's argument you asked if if the official arkansas officers were aware of the risk that mr berry might face and if they failed to respond to those would that make out a constitutional violation and it absolutely would and in this case mr barry alleged exactly that and the arkansas fi three incidents or do you have and maybe there are more but at least the way they were characterized it raises a question in my mind as to whether the rise to the level of putting the defendants on notice that there's a substantial a serious risk of harm here well first your honor on page five of do you have a case with similar facts that say that that does rise to the level i would point the court to young the cell which is in this court's decision where a inmate notified officials of threats against him and because of the officials failure to failure to respond in any way or investigate those written the court held that they violated the inmates ate them in their right to constitutional protection from from harm at the hands of the other inmates in addition the arkansas fish oils on page five of their brief in support assumed a substantial risk of harm to mr berry they conceded for purposes of their moment and for purposes of their motion for summary judgment that mr berry did in fact  face a substantial risk of harm they argued that they responded reasonably to that risk of harm but again that argument in mr barry excuse me in mr barry's complaint he alleges specifically that mr respond with the affidavits or any statements about the knowledge of misspent farland or ms hardesty despite that clear allegation from mr berry in addition even the declaration of mr dawson responded only up to the events of october the events leading to october six counsel mentioned the incident with president brewer and which in this was on october twenty second ms hodge says that there was no no allegations or evidence regarding the post october six times post october thick threat and it's summarizes all of the allegations in this complaint in addition he says the new twelve twelve  he fears for his health and safety but in addition so one of the incidents that mr berry alleges is that after october sixth mrs hardesty and mr doss moved resident brandon who was one of the residents who had threatened him into his pod with him and and that in addition to the incident with brewer feel legis pacifically that he reported it to dawson and that das responded he wanted it squashed also on page eighty nine of the complaint you can see on the side margin where it says mcfarland knew specifically about dos placing the resident brannon in his pod with him so regarding these issues they show that a constitutional violation occurred but again the arkansas socials did not move for summary judgment on the point they argue this point the merits point that they argue that these facts do not exist are insufficient to make out a claim but that's not the qualified immunity argument that was required that the law at the time of their conduct was not clearly established so again mr barry's position is that these kinds of questions are not appealable to this court what's appealable to this court are the purely legal questions of whether or not qualified immunity applies to the facts of this case in addition judge grimes you made the point during counsel's argument that a verified complaint may operate as a verified declaration and be considered under rule fifty sixty and that is absolutely correct counsel stated that the verified the arkansas officials have relied on both the verified and amended from claims in their both of their opening papers and in the reply brief before the court today and to the extent that the district court relied on the amended complaint it was harmless counsel mentioned that ferguson and washington v wilson are distinguishable and do not apply here but here they do the rationale of those cases apply indisputable because the court there held that citations to record evidence to allow the court to rule on the matter here no such remained as necessary because the arkansas fish oils did not cite the undisputed record evidence even once and their qualified immunity argument and again unlike in ferguson where the court found that references to the two prong qualified immunity argument were peppered throughout the motion for summary judgment here the arkansas fishel is failed to make either prong of a qualified immunity argument i am short on time i'll try to address that court question very quickly your honor even if this court considered docket entry number two as a bare fact complaint in order to controvert the motion for summary judgment they are absolutely no allegations and docket entry to establishing hardesty and mcparland knowledge of any event post october well let me ask you this the district court has to take the motion jester and one thread that's not as a matter of law and this court that's not what you argue i mean don't we have to take what you argue and even on your motion for certain for qualified immunity you say plaintiffs do not demonstrate ignored his before addressing qualified immunity the motion first summary judgment brief desert dread that there is no at the moment violation and that argument is taking up far taken up first because if you don't have an eighth amendment violation then under the qualified immunity analysis establish the violation of a constitutional right the lack of knowledge it's still important because if they don't have knowledge of a threat of harm then there is no duty for them to respond and so the argument still is consistent that if they don't have knowledge of any threat or any constitutional violation or excessive risk of harm it has to be a substantial risk of harm which is why this court has opined that crude statements in gesture but for purposes of the motion you assume that there's a constitutional violation yes your honor that's what you told the district court so now you're saying the district court should have taken the motion as you wrote it that this the fact notwithstanding that your honor the facts don't demonstrate that they fail to respond to a substantial risk of harm or an excessive risk of harm and i'm tying that statement to the fact that the complaint d demonstrate any actual knowledge on behalf of hardesty and mcfarland and there is one goal allegation against god and that is that october twenty second into did so even for argument purposes decision of the district court in and award them qualified immunity thank you and spirit i assume that was your first argument well done you get well ask professor lapierre to give you extra credit for leaving time on the on the on the board especially on a long day like today besides good job as usual case will be submitted in decided in