primary claim in this case against the prison counselor who failed to protect him when he reported threats both orally and in writing in april two thousand and fourteen delegates and lives in an open repeatedly then after the incident two guards show up there are some bars separating these two hundred fourteen man dormitory so i believe you got one guard from each side who showed up and they didn't show up for three and a half minutes after the attack when they showed us they pulled out the video and watched the video along stand and the other two white inmates who'd been systems who they handcuffed they hadn't done anything to anybody else but while they were handcuffed watching the video together they all identified the black guys who were milling around as members by force and called them by their nicknames but the guards roger hopkins because it was close to the end of their shift so they didn't want to happen with doing anything they didn't put that he wrote in response he didn't have a separate category in the brief called qualified immunity on the other hand he went through the case law he went through the fact he talked about rogers and hoskins he talked about the supreme court case and farmer versus brennan and i think it covered and particularly covered it well enough for purposes of judgment on the plate because rogers and haskins were put out on the  i the brief that you just pointed to mr since response no one filing on may second of two thousand and sixteen i appreciate you know your candor that it could have been briefed a little bit more directly but was there not another round of briefing on motions to reconsider that occurred as well the end didn't matter lead the district court judge if i remember correctly to say the real problem on the qualified immunity issue is that there is no specific briefing dedicated to the problem to question that is what last clearly established and that appears on page forty four of the appendix in that motion to denote that the ruling on the motion for reconsideration so isn't that part of that what we consider as well yes you're breaking down the motion to reconsider yes your honor and i guess and in response to the initial brief with the reference to farmer versus brennan which is the seminal and also with the reference to the a federal jury instruction i believe there's a reference to that as well seven point one six which the standard is well been around for a long time so yes you you are certainly right about that subsequent three things will turn back to the person that i think is most responsible for dropping  that would be mr brush after being looted the second open dormitory of guillen approached the councilor mr brush they talked about the situation brush already knew about it twenty sixth don't put his report in writing to brush whom everyone including the superintendent agreed with the person that dillon was supposed to make a report to and he put the letter into to brushless mailbox  filed a grievance two days later when nothing was done he knew it was coming he told brushed personally put it in writing twice then the attack came on april thirtieth and it's leg was broken in two places his job was fractured his nose was guard around and like the first time no guard shows up for over three minutes and in fact as he watches that he yells that the video runs out so it could have been a lot longer three minutes before anybody got there at all the point can i can i ask you a question  is it possible you're understating the record on and you said you know there's no specific reference to vice lords that's literally true but what in the letter he said i'm evidence and he says russia knew how things work that had to mean he knew how the games work and the superintendent testified moving somebody wasn't necessarily enough to protect you from the gang as i said you don't need to show exactly the person that you expect to inflict the serious harm in fact in farmer versus ground that the victim is a transsexual he didn't complain at all and put anybody on notice person but the court found that the risk was obvious and here the risk had to ban obvious and when you're talking about summary judgment all the entrances are supposed to be in favor of the plaintiff if you're on your hon move that also distinguishes this case from the other one primarily relied on by the app police which is lewis versus richards there lewis goes five months without anything happening he never told anyone that he was threatened after he was moved to different locations so than reported to guy white guys after the move and that he was next level ok am i correct pardon me six days between did to or to ask correct your honor greg ok we do have in addition to the guards two administrators in this case they were dismissed on summary judgment have appealed their dismissal on the basis of their lives building a supervisors in their individual capacities because they're liable if they know of and disregard of risk inmate health and safety they  there is well known gang activity in conditions that foster this sort of violence then the administration can be liable to the the primary source of the factual information for really the little pinions at the end of the report it's a long report full of fast and at the beginning he lays out all of the different of the documents that he looked at in reciting those facts so if all of those facts are considered we believe there is enough evidence to keep those two administrators in the case and that they should also not have been  to respond to their qualified immunity argument the judge me on the bleeding edge now mr mr kraft not enough for a prisoner to say  i have been attacked by gang members and you can see which ones in the videos that you have and they have threatened that other gang members will attack me in the future but i don't know which one of them that will be in fact not a specific enough and if not how could a prisoner ever get protection an employee and the two some planks together would be specific enough he still loses because he didn't make the complaint to the same person yes that is our position because under armor it's a subjective standard it's what the defendant actually knew it's not what he should have known and it's not whether he should have investigated to find who is in which gang so that information would always be or would normally be should i say within the hands of prison and they  a gang hit and that on the day of the second assault she received a threat from the gang members who ended up assaulting him again in this court said that without those extra pieces of critical information there was nothing that would have led the defendants to believe that the plaintiff himself wasn't speculating based on the prior assault and i think that's what is missing here is that nothing in the letter says she has a game out on him nothing in the letter says that they're after him because they believe he's a snitch or for some other reason nothing in the writer says that look when i got moved to this new dorm and i think that's an important fact it's different even nothing in the letter says when i was moved to this new dorm other gang members came up to me and said you're not safe anywhere we're going to get you for the pirates  let them out of prison i'm sorry you cut out a bit there a lot i'm sorry i don't know where i ended but i mean they they they they they gave identify   i do want to clarify a point on the on that latter point but first the fact that rogers and hoskins were able to identify the attackers after the first incident and let's keep in mind that's going off which we accept as true testimony because they did not designate any evidence from rogers and hoskins ok but the fact that rogers and hoskins knew says nothing about whether brush knew again we're not talking about imputed knowledge a negligence or an objective reasonable nacer even an object of recklessness standard under farmer it has to be actual knowledge by the defendant and it also has to be personal involvement that's the fundamental principle of nine hundred eighty three with regard to the sentence modification i would just like to clarify for the court that the department of corrections attorneys don't handle sentence modifications in state court those are handled by prosecutors and so that is not some sort of concession by the department of correction and i don't take mr singh to have argued that any point on it certainly not on appeal and i don't believe the argue that below mr kraft can i ask you a question about the letter that went prisons and you can't infer just because he's black inmates did this to me that they're all gang members or this has something to do with a gang he didn't specify that there was a he didn't specify that he was being threatened and again he had been moved to a new dorm so there's no specificity in there to suggest that he was in danger in his new dorm now if he had stayed  eleven south if he had not been moved then that might be enough to make it a jury question but the fact that he has been moved really brings this case close lewis because it would we be wrong in your view under the standard we have to operate on appeal to read the sentence i'm not affiliated is tantamount to him saying i'm worried about the vice maybe brush probably brushed should have investigated further but if this court explained and also in failing to investigate further to acquire the information to know that there's a substantial risk of harm defendant notice that he's actually at risk and the sort of underlying premise of that is that all black inmates are a danger to me because i'm white there's no support that's entirely speculative or what's worse all black inmates are gang members which there is no support in logic for that and i think that's just speculation and i don't think that's a reasonable inference roger with regard to the claims dunham quit his employment in two thousand and twelve and work out was employed in two thousand and sixteen despite the arguments there in the clear application of the legal rule then fails to respond to that even in his reply brief and in fact doubles down and full legal conclusions he can't come now on appeal and get another bite at the apple and start citing all these other parts of the report with even if you put that aside those parts of the report never identified a concrete systemic deficiency at most it's the sort of speculation you know the story should have known or this could have been avoided or this is likely to lead to violence in the future it's intended to snuff out gang violence and other gang related issues proactively they have a gaming membership monetary each disability they train their employees on these policies and i'd also just remind the court that had twenty second ranking the superintendent testified that he tries and he can't say with absolute certainty that there is never just one guard per dorm but it should always be two and in fact on the da another dorm he had this says nothing about the threat in the dorm that he is in and you know the dorms are separate this isn't like they were in another side of the dorm they want a completely different dormitory and i think or in their five month wait motion to correct error all they argued was that took all or i'm start trombley netballer satisfied they didn't argue to respond to the argument that even if we accept the allegations  that was a reasonable response and for that reason rogers and hoskins would have would not have known that they were violating clearly established law in the end mr spence arguments depend on what he thinks the pendant whenever you have a subjective standard where you have to determine intent nobody you have inside somebodies head and figure out a plan they actually do that but recap you infer that from actually pretty articulate for a prisoner he writes a pretty good letter at least he testifies pretty clearly this is that page one sixteen of the append x he says when he talked to brush he already knew about the situation didn't call me out and so on and then this happened i kind of some animosity toward that i mean i feel in some type of place that i reached out to him he knew what was going on and he was fully aware of all of it before he even talked to me and then afterwards he didn't do anything about it as far as he knew the system well enough to know what was messed up about it he knows and then i guess the bigger question i think is your honor was pointing out is what else could i don't simply have done that he got a letter being you green with that well yes and so the superintendent goes on to talk about knowing that there are gangs in the prison and knowing that moving them moving someone is not again when you were talking about the standard and whether the law was clearly established whether someone acted reasonably i believe that that was appropriately briefed it just wasn't briefed in the context of   in talking about qualified immunity of course the whole issue of deliberate indifference and qualified immunity in acting reasonably overlaps or if somebody is deliberately and different they're not going to have acted reasonably for purposes of qualified immunity and i think that that is demonstrated plain you look at this court failure pretty failure to protect jury instruction because  words deliberate in deference it it's not going to confuse jurors with a word like that but it sets up the standard in pretty common language so our position is that dylan did everything he could by reporting in the did a pretty darn good job of that for a prisoner and that if this isn't good enough our fear is that you send to the  that it doesn't you don't have to do anything that the gangs are really have free rein and that we're not going to do anything to try to protect somebody from a very serious assault thank you