child thank you may please the court these appeals raise what we believe are important issues concerning first the interplay between the prison litigation reform act and the minister of remedies requirement of the pillory and the georgia renewal statute on the one hand and second the standard by which a supervisor may be held liable for deliberate indifference to the safety of a prisoner under the widespread abuse or widespread violence theory of recovery the district court determined that except for three defendants in the case a councillor deborah hambrick a j c o or juvenile correctional officer christopher a sergeant should bond to davis except for those three no defendant was placed on notice of threats to q f by reginald patton and his game if this case were to proceed all it would be limited to that failure to protect claim against the defendants who were on actual notice of a threat to q f but we think there's a more fundamental problem with the case and that's the issue presented in the twelve ninety to be certificat certified question and that's the problem that the p l r a exhaustion requirement was not met before the case was brought in the first instance of georgia court to disagree with your position that's true your honor why shouldn't why if it's a georgia statute that we're borrowing although it's a little understandably a federal question but it's a georgia law that we're borrowing with regard to the refiling of of the complaint why should we create a split with the georgia courts given that ninety three actions can also be brought in state court why why should we do that we should do it i'm suggesting the court should do it because there are two steps to the analysis that have to occur in this case in cases such as this the eleventh circuit in the federal district courts will apply the statue of limitations on the states holding rules that apply for the case we know that's georgia's to y limitations period and the renewal statute once sat analysis is complete the court moves to federal law to determine whether or not did that decide the issue that is before it so that's why i believe that baskin case is not controlling i'll get to in a moment i'm not saying it's not i'm not saying it's controlling i know it's not controlling we have the power to disagree and go a different way that's not my question to you my question to you is why should we do that because that was then given that we're borrowing those state laws in this one nine hundred eighty three action and the georgia courts have interpreted them in a certain way in this particular context the georgia court of appeals has a against the position i'm arguing in this case but it did so contrary to an important principle that has been set down by the georgia supreme court and that's been applied time and again this court said in a case that was entered after the briefing was complete in this case hancock v cape that a lower court opinion although this is a quote from hancock the cape eight seventy five f third ten seventy nine although we give lower state court opinions proper regard when considering a question of state law interpretation the state's highest court is the best authority on that law baskin did not do a critical intermediate step in the exhaustion analysis and that is to recognize what granite state the georgia supreme court decision held and that is that a renewed action stands on the same footing as to limitation as the original case if that is so if that is so then we don't simply say that the statute of limitations is no longer in the case simply because it is we ask why is it renewed action on the same footing as the original action george was removed and if you're looking if you're looking at this from a pure administration perspective why would you want to appeal are a to apply to someone who is no longer in prison well your honor that this court in paris addressed the policy questions behind the p r a and when the determination is to be made when that statute applies to a prisoner confined there is no policy question before this court i am here to ask in i'm asking you why it makes sense to apply the p o array to a person who is no longer in prison because the critical question is when was the person can find the person in this case q f was confined at the time that he commenced his action respond to it on the merits without saying it's untimely then the prison the state has waived the untimely defense the procedural defense that's true and that would be correct your honor and if you win your grievance you eleven circuit case that says it's true unless the state regs require you to appeal anyway every day policy and i read the policy here it doesn't say you have to appeal anyway so here's my question they made the informal complaint they said i need to be transferred i'm in danger you transferred him he's won he's exhausted well the problem out there there is a critical problem with that you're on to the exhaustion requirements absolute the courses the cases say that transferred him that's what he asked for so now he's won so i'm not saying that he doesn't have to exhaust fully he does have to exhaust fully my proposition is he did he fully exhausted because he made the complaint and he got transferred no  so i would disagree with you and here's the reason why the exhaustion defense the evidence that we presented on exhaustion first of all was not disputed in the district court the decision by the district court that there was no exhaustion is not on appeal currently but the reason why you must exhaust all steps in a policy is because we have a complaint that says this is a dangerous facility if and that an administrative remedy had been pursued the d j today could have addressed that issue transferring the fact that some relief may have been given does not answer the question of whether or not all of the remedies must be exhausted under the policy you want to spend all your time on i do not on this appeal i do not but i do want to tell the court what i'll give you an example of why i think commencement is critical and why baskin should not control here take a case that's filed in state court it's pending for more than a year and then it is dismissed voluntarily and then refile out the defendant then removes the case to federal court this is on diversity jurisdiction the problem with the case you can't remove a case based on diversity jurisdiction where more than one year after it has been commenced this is the hattaway case this is a had a way case a federal question this is not a diversity c e now this is the hattaway case decided by judge fitzpatrick in the middle district and the judge found and that in order to determine whether or not the case could be timely removed you have to look at when that renewed action was commenced he did so by going to granite state which says that a renewed action stands on the same footing as to limitation as to reject all action and if that is so then the original action governs the time of commencement how is that because of the limitations period not as to whether or not you have to exhaust federal remedy which is a federal question the limitations question can't be separated because the key issue is when is that action commenced and that act it back cannot be separated from harris we know that because the baskin court look to harris to try to resolve this question it did so incorrectly however because it didn't correctly apply granite state you're almost out of time on the merits but let me let me ask you this question you really think that this complaint is short on details i do forget who was where week or every month but there were that's the allegation in the complaint the allegation that almost daily the allegation with the allegations that are not that the riots were almost daily there are identified riots occurring the allegation is that there were salts occurring almost daily so if you look to when q f had been raped twice q f was assaulted twice before the incidents in may and june of two thousand and eleven there's no indication that any suit that that information was reported to any supervisor so let me if you look to what you must say you're not you're not talking about i speak only for myself but you're not talking about a prison where nothing has been going on and a prisoner of the taney gets assaulted you're talking about an institution that has a very sordid history of serious problems of decreasing the ratio of corrections officers to individuals of almost daily blowups and problems you think that those and put the director of that be alleged and then crude has to be obvious flagrant rampant and of continued duration when you have allegations against supervisors in a complaint that assaults were occurring daily or almost daily as we have here those do no more than state with the elements of the claim are in the same way that in two embley there were allegations in a well pled complaint that there was a contract to restrain trade we can say that that's not a nonsensical contra allegation you actually have to prove that there was a contract to restrain trade in order to prevail on an interest claim but simply saying that without fleshing it out with facts is not sufficient in the same way in ashcroft b if it ball when you say that a policy a person with authority to set policy actually established a policy to put someone behind bars in extremely harsh conditions you have essentially said what you need to say what you will need to prove down the road but what did it paul say they said that's not sufficient you actually have facts need to have facts behind that to show what the claim is all about and that's what's missing here throughout all the allegations of widespread abuse over a period of time based on the image you based on riots based on audits we don't have one bit of information that another youth was attacked if this were a class action were done to relieve that district judge would shut it down because everybody had the understand your case action is commenced under the federal rules of civil procedure under rule three when the complaint is filed with the court complaint in this case was filed with the court january twenty sixth of twenty fifteen it's got twenty fifteen district court case number it's not a twenty four case under plaintiffs under the defendant's argument even though point a fall two complaints one in two thousand and fourteen which was voluntarily dismissed and then another in two thousand and fifteen he only commenced one action that's flatly contrary to rule three that's not how the federal civil procedure works defendants also can't rely on state authority they can't rely on the georgia renewal statute really for anything all that statute does is it tolls the statute of counsel the lowest in case really doesn't change the law at all it just summarizes and collects the well established body of georgia case law to the effect that under the georgia renewal statute the renewal action is not a continuance of the previous action and so it doesn't stand on the same footing for purposes of the statute of limitations as the previous action that's the whole point of the renewal statute is to provide an extra six month grace period after a voluntary dismissal within within which the statute of limitations does not run and within that six month period the plaintiff can file an action that is considered to be a did novo action and that's a two edged sword because if a defendant for example has waived the defense in the first action that defense is now image along with the rest of the case the plaintiff as the supreme court said in a in a more recent case starts over from scratch and so the  that's why they ga court of appeals in the basket case rejected defendants exact argument in addition it's worth mentioning that when the twenty fourteen action was filed d j j's administrative remedies were not available to plants because he was no longer a juvenile he was no longer subject to that agency's jurisdiction at all he was locked up on adult charges in the gordon county jail up in north georgia and there's no juvenile aspect to that case so there's not there the fact that he had been released from d j and then later in a totally independent event got locked up on adult charts at the time the twenty fourteen case was filed doesn't make it feasible that he could file a d j administrative grievance that's not available to him at that point in the p l r a only regardless of who lost but it's not at the point of filing that you determine whether or not a grievance was available it's at the time that the state system requires a grievance to be filed then you determine availability if the state system says within thirty days of an incident or event you have to follow your first level griev that's the moment in time that you assess availability not if you blow that time period and two years later you say oh i'm no longer at that institution i have to exhaust now right well if you're released from the custody of that agency several circuit courts of health know those age those remedies are not available to you or if you're released later even though they were available to you while you were in that's right we've cited a second circuit case in our briefing where a  point is you can't miss the time i mean you can't miss the opportunity and then climb having to fall to your right to file a grievance that remedy is no longer available not if you're still locked up in the same jail that's clearly true you can't  locked up in another jail or or whatever i mean i read this policy on member it's a twenty one days or thirty what the time limit was but if you miss that time limit the remedy does not then become unavailable so that you don't have to exhaust you do have to exhaust and it means proper exhaustion and so you do have to comply with the time limit unless you file an untimely grievance and they address it on the  right in it sounds like i've got two votes out of three against me on that point and maybe three so i'm going to move on to my next point if you don't mind which brings me to your point judge hankel which is that you have to exhaust his remedies he informally grieved on a constant basis he was very vocal about the threats he was receiving the fact that he didn't feel safe in the facility and that people were constantly trying him trying to draw him into fights that he was being assaulted he reported numerous incidents and finally his lawyer when he finally got a lawyer wrote a letter to the d j and submitted a written grievance which d j accepted and acted on and they transfer us out of the facility they transferred him to another facility which is also not very good but but it was amazing and so his remedy was granted by b j and so for them to claim now that he didn't exhaust his remedies his administrative grievance process while he was in d j i think is incorrect you've amended it didn't make it into the record on appeal i don't think so i think i went back to the original docket you haven't amended yet we have not because defendants filed notice of appeal before that deadline is my recollection of that's why you did the math yes your honor i thought the district eleven and then anyhow it was in place from january twentieth levon through november of two thousand and eleven neither of them lasted a full year district the district court dismissed claims against some other supervisors who had left before your client's assault right thanks saying that the time period was too long rendering the causal connection too speculative too tenuous your honor that's perfect of the ones that were up on here were the ones who were in office at the time their positions at the time of correct right absolutely right your honor and amy howell who is the commissioner who was in place during the relevant time she was there from january of two thousand and eleven through november of two thousand and eleven and she had a long running history with t j she was actually the lawyer who on behalf of the state helped negotiate the release from federal supervision and so she's got a long history of knowledge of the memorandum of understanding with the u s department of justice and how the agency operates and this was sort of i assume something some kind of reward kind of a well and she maybe didn't work out the way she all about the riots of the  ten at least when the local law enforcement the guards at the facility were not sufficient to restore order they couldn't get the facility back under control from the youth and so they had to call in local law enforcement to come and help them do that  so the facility was that bad it's it's not credible that the director of d j who's coming in to take charge of this system doesn't know that the largest facility in the state is that  eleven so they're kind of bookends for the period at issue in our litigation and both of those audit found severe security problems at eastman including as we've alleged count two of the complaint failure to classify no your honor i don't believe there is at this stage of the case and i don't recall off the top of my head what the what the population was at that period but it's a large facility it's the biggest one of and among the most that standard to allegations of deliberate indifference to institutional security deficiencies under farmer versus brant that's really the issue and the defendants argued that we need particularized fact allegations to support our allegations of subjective knowledge on the part of these super supervisory defendants who were either working every day at that facility going to work every day that facility or were directly over that facility director of secure campuses and the commissioner of d j  that argument that defendants are making is just flatly contrary to farmer versus brown and what farmer says about how you prove knowledge is this whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways including inference from circumstantial evidence a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious so the fact that these officials needed this information in order to do their jobs at a minimum level of competence isn't just a subsists for inferring constructive knowledge it's a basis for inferring that they actually got the information because that's what their jobs required them to did and so and that and that's why the audit were done that's why the information was collected by d j in the first place and made available to j j officials so that they could run th and so i think a jury could infer and the district court also inferred that these officials collected and had the information that basic most basic information that they needed to do their jobs and protect these children from getting killed in this facility or sexually abused i think that's a fair inference on the part of the d j commissioner especially given her personal history with the issues it's and with the memorandum of understanding i think it's also  certainly a reasonable inference with respect to all of the eastman supervisors who had to go to work at that facility every day they couldn't possibly know that they i mean they couldn't possibly be ignorant of the fact that the whole city was getting shut down for riots once a month and so and i believe this judge jordan stated the risk that plaintiffs have to allege that they knew about is the risk that there is inadequate security at this facility and there are constant violent incidents happening that their guards and their staffing are not sufficient it to prevent these incidents from happening and the river the reason i ask you about the population yes ron it's not and there is because the greater the population this is this  historically true cross the country the greater the population the more it exceeds its design capacity the more the end made to take control of the management and and the management is no longer charged and then what happens is the bully like patton becomes the warden but that that's that's implicit in the allegations of the complaint that the inmates were running things because of the number of  that were happy and i have a call in outside people that's right and we've also alleged in the complaint that at the end of amy holmes tenure as director and official d j press release stated that the agency as a whole was in crisis mode due to safety and security  thank you viewpoints on the exhaustion question your honour's my colleague has indicated that what i'm suggesting the court need to do is to pretend that there is a new filing or an old filing date to go back to some older filing date lee not the appropriate filing date for this case and that there is no federal authority or north already on point for that that's the hataway case i cited in my opening argument it's ninety eight fourteen seventy nine it's the only case before this court the only case in the briefing where a judge actually did the missing step that was missing in baskin and that is to decide in a renewed case when is it commenced it's important it's critical in a removal case based on the georgia court of appeals had to go to federal law to figure out if the claim was part the first step that it didn't do under granite state is to say a renewal action stands on the same footing as to limitation that means  when the original action is filed that's how the renewal statute works you don't get the benefit of tolling unless you first put that flagpole in the sand and say my action is commenced then you get the benefit of tolling assuming you're right about all of that  in georgia law or georgia prison policies requires an inmate who is successful honeys individual grievance to continue appealing to achieve system wide structural  make up excuses we don't make up reasons i forgot he got his transfer and that's pretty much out of it out of the harm well just a minute yes or so tell us what the grievance proceeding would be like is he going affair implication from the allegation can point so the question i have is why make the person now out of there become effective late on ombudsman i mean he's now going back to the to the to administration and it basically litigate oh all the things that happened that gave rise to the transfer and i respectfully i say that ross b blake controls this question remember what this case is about it's about allegations that not just eastman but all of the facilities in d j j were out of control he was moved to another facility and d j j ross says that even a full blown investigation even a full blown separate investigation which presumably would provide that individual claimants some relief for his case is not grounds for failing to to exhaust administrative remedies but you absolutely can is whether getting full relief ins the requirement to exhaust he got full relief no the assumption is that he got full relief and i respectfully disagree with that assumption your honor he was in the same facilities that he says were dangerous  to so you wanted him to then file a second level administrative appeal asking the georgia correctional authorities to rejig and redo and reconstitute all of those facilities and that would have been exhaustion in your mind using your second level appeal i know you've given me what i wanted you transferred me out of the seven where i've been harmed but i think you guys need to go a little bit further would you need to do is completely bring this whole system down build it back up again put in more prison guards lower the number of inmates in every institution that's what you expect them to do and say he has to do it without a large area but it is as it does a pro se litigant that's what that's what he has to do to exhaust that the authorities require that an exhaustion be done and it is required of pro se litigants he has to put that issue out there he has to use every step in the process so he doesn't have to litigate it like a lawyer he has to seek structural injunctive relief from the georgia system as if the georgia authorities were a federal district court it's not like the lane case when we're talking about systemic problems that obviously put supervisors on notice of a risk to of youth on youth assault look to those cases this case is not like the other is if i could very briefly mr moore only identified anyhow as a responsible supervisor there's no other discussion of the others because there's no pleading that any of them had a role or responsibility or authority where they could standard german under the usual or