please the court i would like to reserve five minutes for rebuttal please in a way for the purposes of this appeal only appellants are not disputing and are accepting as true the factual allegations that abilene made against them factual allegations are found in paragraphs twenty six and twenty nine of after leaves second amended complaint specifically those allegations are that the appellants laughed at apple e after the toilet overflowed in not remove apple e from his cell for twenty five minutes after the toilet had over flowed so the need to abstract issue of law for this court is whether except in those well and we would respectfully submit that that allegation was not made against these named deputies your honor looking at the second amended complaint the only time these appellants are named in that second amended complaint are in paragraph twenty six and twenty nine i've already gone through those allegations other than that the other people named in the complaint are all this miss parties or just quote the guards so even up to twenty five minutes only with these your client and the laughing and happening that that is our contention but even i think you're the problem of that characterization and i certainly understand why you would say that is while it's true that in the paragraphs in the american plane that refer specifically by name to the guards that seems clearly to implicate this twenty five minutes then from then on a talks about the guards whoever they are now how can we say whether the guards in the rain meaning parts of the complaint are these folks or somebody else which all seems to me to indicate why there needed to be an individualized inquiry here because the constitutional question has to be framed with are you talking about what happened when the guy was in the so called hole are you talking about the cancer to show deprivation that or you believe curd while he was in the medical center and we don't know where your people were right well i will say this your honor there's no allegation that the people the named appellants left in this were ever in the medical center when you look at the man you're just assuming that whatever he says the guards that could mean these four or five or whatever the number is so what what why do we assume that well i am basing that assumption on the fact that in his amended in his second when he wants to name who the guards are he does in capital letters he sets the guards comma including and he names the guards that are still left in this lawsuit when he doesn't call them to read there from each time he uses the term bogart it's he means to include the named individuals and i guess i would think that was true if you know what for instance in a previous when you name everyone and then you say here and after in type you know i'm going to refer to them as the carts and i understand that in this case though when you look at the second amended complaint you know the first time he mentions the appellant's my name is in paragraph twenty six then he says you know he has allegations in paragraph twenty seven allegations in paragraph twenty eight and then it's not again until paragraph twenty nine where he specifically refers to them again when we get to the medical center they're not referred to at all the only defendant that's named that's specifically named in response to anything that happened in the medical center is  time he's been dismissed out and we also know that in athletes affidavit answer graphs thirty one thirty three and thirty four all refer to the guards and we don't break and so before we waste your whole five fifteen minutes on this let's assume that your clients are risky at this stage go through with respect to the twenty five minutes in the we'll call it the two or three days in the medical center so we get that sorted out so i understand your argument that accepting is true what this guy says happened during that twenty five minutes you say i gather that that was not a constitutional violation or if it was it wasn't clearly established i laughing taunting refusing to remove them for twenty five minutes yes your get there right yes so let's assume that your guys are still at play in connection with thirty one thirty three and thirty four for a moment are you contending that if true leaving somebody not exactly prepared to take a position either way on that because i did not consider those to be allegations against the apparent in this case can you see how the court would need to construe it that way i do your honor thank you and i guess what i would say is that i'm not sure because based on the cases that i have referred you to in my brief regarding looking at conditions of confinement claims when they're based on unsanitary  conditions it is the length of time that is not controlling but it's something that you really look to and then i guess the question would become if for two or three days the only thing he i think it simply does say he got to change his smock but that he still had excrement otherwise on his body and was not able to shower and then i guess looking at that is that enough for two or three days after that if you did not get to shower and that is considered to be the fault of  and but you don't know the answer really to that one because you didn't view it that way so that's fair enough so let's go back to what you are construing happened were your clients are actually named so it's a little more sophisticated or complicated than the way you phrased it think and let me tell you why and then you react to this the first action is i would see it that they're complaining about is that this sewage is coming into the cell  mates cry out and guards come to the door secondly when they're at the door they taunt him or curse or yell at him or something like that so that's an action action that may or may read this i think they move them into another cell so we have to look at whatever they did or failed to do when they were in when they were in the other cell before they get sent to the medical center we have to analyze that only paragraph thirty one he was then transferred to another cell in the same era so that's still your guys they're not referred to specifically by name but we can assume that your guys did they were involved in everything that happened in the whole area in the area of the whole and right if that's what the court wants to do i'm not so when i want to direct is trying to read the complaint and i guess again i just say he says in thirty one that that he's mad about being stuck in that other cell we'll call it a holding cell for a little bit because it contained the foul order odor so he says they treat him one way when he's in the cell with the with the overflowing toilet they transform another cell he's mad about what they did or failed to do when he was in that cell then they ship off to the medical center and he complains about that but you're not prepared to talk about that so we have to look to others as constitutional violation when he's in the cell with the act with with the overflowing toilet and we have to look at what they did or failed to do when he was in the holding cell don't mean well i guess and my problem i guess in trying to address this is the lack of allegations regarding personal involvement of these appellants i mean again as i read the complaint and then even his and his affidavit acar that he does and there's two paragraphs where he talks where he names them and then i know that he says the guards but i guess my question would be do you know different people can do different things i mean obviously we're willing to accept that when he named them as having actually done an action that they did it here's my point and how can we rule for or against your client on  probably more properly the district judge figures out exactly what each individual was alleged to have done at what point in time once we figure out that then doesn't don't the two legal questions for qualified immunity flow from that why i think that if we don't dispute what is alleged that the have done that no that this court can address that issue so you don't dispute that your guys put him in another that let him stay in  dispute that they give him and his mock that that's alleged in the complaint but i don't know if you know their parents did that or someone else did that my whole point how do we know whether you i guess what we know what they did or didn't do or where it's not sufficiently alleged in the complaint to be able to figure that out isn't that why you do an individual was in court well i guess i'm not sure that the burden is on us to sort and then secondly that even if a constitutional right was violated that the reasonable deputies in their position would not know that they had violated the belize rights why did this court counsel be parsing the complaint amended complaint where is it in the affidavit neglect to neglect neglect to name the particular defendants in  other than one or two instances which we could maybe say the twenty five minutes plus the the holding cell why should we read it the way i think you're asking us to do is tack on the for five or however many additional days with respect to the particular named non settling i take the other settled defendants yes your honor in this matter there's there's five sets of defenses the guards there's the medical staff which is douglas just limit the ones who we care about today those are just the guards things are when guards as mentioned in the other only ones left and you didn't cross appeal the denial of all the rest exactly right so we're just down to the guards that's right so three things happen there is what the guards allegedly did in the whole what they did in the for what happened in the medical center mr ruby for all three parts now they douglas hahn is now no longer in this case is it fair for this court to believe that you meant all these when your complaint didn't clarify that i believe it is because when the complaint mentions guards these are the guards that are mentioned no other guards here and been dismissed from the complaint but would you agree that whether there was a constitutional violation for not removing this guy quickly enough from the cell with overflowing sewage is is an arguably different claim or a claim with a different constitutional dimension to leaving us in the medical center for three to five days without the opportunity to take a shower i believe as are all individual parts to address here based on the law but i think it is one so how do we address the constitutional claim against these individuals for what happened in the medical when one you don't identify these guys even having been in the medical center and two there seems to be at least reasonably persuasive evidence that you don't respond to that they weren't they either weren't on duty that day that one in the medical center not their job and whatever well again i believe this or not situations for which we normally let cases go to trial because the whole purpose of immunity is that you don't have to stand trial so back to back to what shouldn't there have been an individual is inquiry to at least find out what you claim each individual guard did when they did it and what they did or what they failed to do i wish we could present the exact days times this is the exact hour when this exact guard was here unfortunately and it cases of this inside a jail my client is not privy to information in neither is the of the balance in this case they don't they simply just don't keep track of where these guards are minute by minute hour by hour but you're going to doesn't even say in the in the complaint or in his affidavit that any of these five folks were actually ever even in the medical center that's a different part of the jail and it's a different part of the job of that same guards operating move the prisoners from the different you know the medical center the staff douglas time in this matter he's for all intents purposes of the doctor there in the jail so when my clients having complaints to him that's a separate cause of action that's a separate complaint so is your guy going to testify that  of these five were actually in the medical center so your but he didn't say that in the complaint he doesn't say that in his affidavit he mentions the guards and the basis of that part of the complaint for these guards is that no one there no one in the entire jail including these guards who had time with him from the when the initial initial incident occurred from the time they moved him to the second cell and then from the time they put him into the medical department and transferred him around during that entire period of time none of them he was not provided a shower he was not provided you know the ability to clearly understand that if that if a is to guard people in the the the whole and the adjoining cell and that doesn't work in the medical center you don't have a claim under which he's then responsible for a feeling of other guards in the medical center you would concede that i would agree and i think that would certainly cause a problem at a trial but here where all the geisha is that these guards were there and there are allegations they don't they have not provided any evidence that the guard they are guard be your guard see or specifically here's the key cards here's where they were at all points in time during the the dates and times of this complaint they can provide that evidence either so what we're left with is a he said versus he said situation where my client said they were ridge and there are six guards you sued six individual guards and three of them are female right i mean presumptive of those three make three female guards wouldn't even be in the cell of a in they would not be in the part of the jail where the females are housed where this sewage incident occurred was in the main holding cell up front so that's where the sewage and that's where female and male inmates are house it's not the male section of the jail it's not the female section it's a joint session of the jail and then also the medical department obviously houses both male and female inmates so it's not that this occurred somewhere in the in the male portion of the jail where only male guards would be at the holding cell situation too is a common holding cell yes genders well your guy in his affidavit said he's subject to deplorable conditions for one hundred days so let's just assume that's really what we're talking about today versus the three to five days you say it's sufficient for avoiding qualified immunity if you simply mention a guard one time in the beginning of the complaint for what they did in that first day of the hundred days and then for the other ninety nine days in my head pathetically that's only loosely based on your complaint here the rest of the time you simply then refer to people as the guard or the guards that's adequate in your estimation to avoid  conditions of my jail cell were bad or nasty this was there was excrement covering this individual and then the deputies actually performed an action by not removing him from the cell they kept him there they cursed at him they laughed at him they kept him in the  then they moved him and they continued to not give him a shower not provide him with the basic necessities of cleanliness so as and now you've actually named these five or six folks in connection with those two actions i get that but then you don't n them in connection with the remaining for four days twenty three and a half hours so it's enough to have said what they done did in the inception to avoid any qualified immunity for defense for the remaining four plus days that you envision in my argument would be that the when when guard is mentioned in the complaint these are the guards we're talking you know that the names are not they're not named every time instead of using guards i guess in the future their specific names should be laid out every time the word guards is used i thought from the factual allegations in the complaint but it is much as the complaining kluges guards no longer present in the case doesn't it well basically only god no longer president the case of douglas they're corrections officials are supposed to doctors so maybe they're what you meant by the guards but they're out there now because of the super they were included because of supervisory capacity only they were not mention as the guards who were actually present in the case the guards who saw my my client in the cell the guards who left him in the cell the guards who laughed and cursed at him in that cell the guards and that removed him to another cell the guards that then transferred him to the medical department of the jail the guards that would see him on a daily basis and not provide him any of his request for showers or clean us or anything those of those of the guards that i'm talking about through the complaint all such is the complaint doesn't i guess it really doesn't lay out that they they encountered him and his pleas first shower in the medical center so there's a limit to what courts will assume for in this qualified immunity  and i would understand that and certainly what's your best argument for this court doing so in the face of this big complaint i think really in the complaint as a whole when the guards are included in the it's when guards are mentioned in the medical department those are the simply the same guards and i would still argue that even if we throw out these two to three days where he's at the medical department it's still there there's still a strong constitution will violation here from simply keeping my client in the cell and performing an action an act of keeping him there not just him being in poor conditions but actually sewage rising two to three inches in the cell and then moving him to another cell without offering him a chance to clean himself well let's talk about the first two steps before he gets the medical center you attach a temporal period for the first act the twenty five minutes then it says he's transferred to another cell where apparently he gets he gets a change of clothes you know to get a new new smart because the you took office smock to sly be extramural how long was he exposed to these unsanitary conditions in the in the is a right to say a holding cell in the front holding area how long was he in the second cell and the second so it was a matter of hours a matter of hours until he was transferred to the medical so what does that mean he's at two hours three hours somewhere that range yes ok do you have a case that says that there's a constitutional violation because guards taunt somebody no you so we can ignore that so do you have a case that says there's a constitutional violation  somebody is exposed to unsanitary conditions for twenty five minutes near you or you have a case that says somebody has a cancer while some is exposed to sanitary conditions with a new smock for a couple  hours no so what i'm getting at just to try to figure this out is i sort of get under the hitching post case where somebody could make an argument that being in covered with feces for three to five days in the medical unit that's a problem i don't think you have to have a case for that but if you don't have a case as to what happened in the cell initially and then in connection with where they stuck on before they sent him to the medical center what do we look to then to say that the law was clearly established i think you have to look at both of those actions combined yes if an individual rejections be t and the the deplorable conditions of the cell those aren't two separate issues those that were in this case those both happened at the same time there is not a case where there is deplorable conditions and then guards decide to publicly leave the inmate in those conditions and that's what happened here in the deplorable condition cases that the taunting to the unconstitutionality of this all the time to the fact that number one then the guards had knowledge of what was going on and that so that this was not just something that happened this was something that happened in the guards were made immediately aware of it and they chose they made the choice to keep my client long at the tauntings supports prolonging it that t that's a that's a form of torture to purposely seize it and individual where you could remedy the situation and not to fix it in this is not just a dirty cell this was actual sewage rising up before the sub two to three inches of sewage covering ankles you know my client was cut and it on his whole body because he was sleeping on the floor they could see my client covered in the sewage they could see him begging to be released so it was a men's way to purposely keep him in that cell to purposely launch curse words at him to taunt him and simply that's a form of torture that i think rises to the eighth amendment cruel and unusual punishment if the toilet in the cell it overflowed and as soon as they heard about it they they removed him from the  l still covered with actually when at that point would that be a cast you know so how long does it have does it have to be where somebody is left in that cell before you put him in another cell to then i' balance to be common touch on our human being would be once knowledge is established once a guard over eight individual who has the power to remedy the situation without him you know they could have easily moved him to another so they did ended up doing that but what you say they could have easily moved to another cell we don't have any idea do we whether it took those two hours that you mentioned in order to to get people out of the cells to have a cell available to put them in we don't even that's correct and so i would still submit that a a two to three inch of sewage waste in a cell is a emergency type situation where behave need to remove those individuals from that cell and if they need to shackle him while there didn't begin a new so many fine but to leave him in there to suffer is a is a classic constitutional violation there's no case that that is exactly on point is we have cases where there faces where there's dirty cell but we don't have is is this where the totting provides the knowledge of what happened and that's what we have here and i think  e wanted to make claims against the remaining defendants he was able to do that and it's in paragraphs fifty eight and fifty nine he names all the defendants in paragraph fifty eight this is regarding his negligence claim against  and then he says that they breached the duty by allowing plaintiff to become covered with human excrement and sewage and by not timely removing him from said conditions that's in paragraph fifty nine that is alleged against the appellants that are still on this case but then when you negligence count against douglas hahn who actually is the mental health liaison for the sheriff's office when you look at paragraph sixty three that's when the specific allegation is made that douglas hahn breached the duty by not allowing plain of access to soap or a shower while he was beetroot while he was being treated in the medical section of the franklin county grew reading fifty nine right i had initially i was and then i moved to say that you didn't read fifty seven the religious and the incorporates all the eight and i will rely on my arguments already to the extent that when he wants to name people he does and i i don't think that we should be put to the burden of gesine what facts he's alleging against which defendants if he just says the guards i've actually when he came up for his part of the argument i actually heard a lot of facts i have never heard before and that are not in the record they're not in the second amended complaint they're not in the affidavit that he swore out for example  well just how you know being moved from here they taunted him they immediately knew that the toilet had overflowed i know that he can see that he doesn't know if they could be moved somewhere else but we don't know that i mean basically what we know from the second amended complaint is that the deputies laughed at him at some point after the toilet overflowed and then they removed him from that cell after twenty five minutes now the complain when you asked him judge how long he was in the second cell i believe you responded a matter of hours the complaint says that he was in the second cell after he had been moved from the first where the toilet overflowed and when he was moved to the second cell and allowed changes mark he was there for  you're saying those things are added i mean the complaint is fairly specific about what happened before they removed him from the first cell paragraph twenty six that they were making noise so it says all of these guards came to the door and while the room continued to fill with sewage so that's sounds to me like it's clear enough that that happened right at the time the suit starts to come up these guards come to the door and they look at then it says later tells us that that took place for twenty five minutes so we have to assume that that's true so would knowing that the cell had sewage and and intentionally leaving them there for twenty five minutes before it starts to go under the door and so that's why they removed him would that constitute a constitutional violation now your honor and oh how long can you leave somebody in crap on the floor of a cell well the kid says that i stated in their brief for four days now constitutional violation when when constitutional violations occur it's not when it's a very limited duration of time it's not want to just four hours it's not when it's a few days it's in that case just want to point out to you that the case that established that the constitutional violation can occur even though there's not a specific case on point the so called teaching post case that i was was tethered to the situation for eight hours and that was  unlikely that you can be left in raw sewage for for eight days and not be a constitutional violation so i'd have to go back and read that case i'm sorry i must misspoke it was from the eighth circuit it was four days ok and we're very if i misspoke on that one i wonder if