at the national general hospital when the deceased michael minnick and or davidson county police officers on may the thirtieth of two thousand and twelve and illegibly resulted in life ending injuries to mr min was employed by national general hospital as a unit secretary to the medical staff and was stationed on the seventh floor of the hospital known as the lock up unit where prisoners and pretrial detainees such as mr minute were treated the opportunity to allow an amendment which then could include all the facts that are laid out in the briefs presumably i guess it could and theoretically i guess that i treat the the briefing as a constructive amendment to the complaint for purposes of assessing whether or not there are sufficient facts so i guess what what i'm trying to understand is if you're just asking us to go through an exercise here to say well this complaint doesn't have enough when we know that they can go back and add all those facts that are in the brief that the trial court was clearly aware of well if we and the court did state that it was disregarding those additional facts but if we if we look to those additional facts because we all we all have are aware of them now as your honor suggesting it's the opponent's position that the that the matter should still be dismissed that still even with those those additional facts that were raised in the briefing had they been properly alleged at the complaint that we still would not have a facially possible claim under the fourteenth amendment and if we could turn to those deliberate indifference to the safety of mr minnick but instead acted reasonably at the additional facts that have been raised in the briefing are that she heard a noise coming from the patient's room she went to the patient's room knocked on the door asked if everything was ok and was told by a deputy that everything was fine what else would a unit secretary was no responsibility for this patient  and be expected to do other than to go knock on the door when they heard a noise be told by the security officers which is presumably who she would have called had there been a problem hold that there was no problem and then also reported that information to the nurse who was charged with the patient's care as soon as the nurse was really really from responsibility for caring for another patient so if anything if we were to take the additional facts had they been properly put in if the court wants to consider those under the case although your honour's referencing the appellate would submit that those that the all of those additional facts so worked the finding that there was not any act of deliberate indifference that her actions were reasonable and that unplugged i mean there are the there's two different levels here one is is that enough to get by twelve b six and then the other is then what do you do with it by way of the qualified immunity analysis well and so which which argument are you really making that the kit they haven't stated a claim or that even if they could arguably have stated a plausible claim there is a separate qualified immunity analysis that needs to be done and making both arguments  parents position that they haven't stated a claim and that they can't state a claim even under the additional facts that have been alleged but but even if we assume that they have stated a claim i think they all basis of the no clue they haven't shown a violation of a clearly established right well that's what i'm moving to know with that's with regard to the qualified immunity defense act the appellant would with with state that they have not shown that there was a violation of a clearly established right there they have not cited a single case nor have we been able to find a single case where a unit secretary whose responsibility is to provide support to the medical staff was was found to have some responsibility to a patient under these circumstances if we found we found no case on point and it would have to be that specific i mean didn't judge merit in his decision specifically say that that the nurse in that case was on notice because of the cases that dealt with police officer responsibility or are you referring to the germ case yanar well there are a lot of disk distinguishing  factors between the germ case and this particular case in the durham case your honor will recall the nurse had initiated the i guess the confrontation or the events that led to the confrontation with the patient  instructing him to clean up after himself she was also press poor and observe the interaction with the officers and one of the officers at least was even acting under her instruction to get the patient under control that's an entirely different situation than what we have here where miss minnick was not a nurse did not have any interaction with the patient did not a actually observe with her own eyes what was going on what was going on was happening behind doors and she did act to check on the patient and did act to report that something was going on to the nurse who was responsible  patient so while well maybe it doesn't have to be clearly established right maybe it doesn't have to be exactly on point backed fact i think there that the case law is clear that there has to be in order to put the actor the state actor on notice that they had a responsibility there has to have been some pattern and i don't think the germ case respectfully is enough to to put the a clearly established right is is fact specific that that to defer that determination for some period of time while there is discovery certainly i think that the  that the district court does have its discretion in that regard although again we would argue to your honor's this morning that based on the facts as we know them and net and that are in the record that it would be inappropriate to require ms mason to continue through the discovery process as your honour's will know quite a qualified immunity not only entitles the defendant state actor to protection from liability but also from the entire litigation process and from the discovery process and there certainly appellate opinions and supreme court opinions that that that emphasize the fact that the clearly that the trial court has the discretion to allow that determination to be made at the summary judgment stays as long as it's made at a relatively early stage i would agree that there is case law in that cont read it states that she was relying just on the fact as pled not even on the additional facts that are in the briefing and those facts as led state that ms mason informed a nurse that there was something going on in the patien and that the call light had been told and the calling the situation with the call light as i understand the facts is what prompted this secretary to walk down the hall and asked the deputy is that didn't that proceed everything that's what prompted her to go down the hall and ask the judge deputy what's wrong because the call white had been she brief doesn't tell me much of anything but in your brief i think there was something dollar judgment that that was the color it matters not except in terms of the timing and the expectation the plausibility that she could have exhibited well and i would direct your honor then to the third prong of the qualified immunity and now says which then takes this back to whether you're on qualified immunity and i'm still on the on the initial whether the even with the extra facts whether or not plausibility in a sense has been shown but i would suggest that that all of those factors overlap because we end up looking back again at whether she acted with deliberate indifference and whether she knew or had reason to know of a substantial risk of harm to the patient and was in a position to do something about exactly and what else would she have done under these circumstances under all the facts that are that are before the court that the plaintiff has put out there and or any context they were for security officers with the patient one of whom assured her that everything was under control and she reported the it was that something was going on to the nurse responsible for the patient so what else would a secretary do in that context thank you you thank  through correctly that there's been no discovery we would get information out of the questions that opposing counsel r s how since they're on the other son how are we even know exactly what happened we do know that this this secretary did nothing our own and she did nothing to help this young man and can you i mean you get shoot you haven't done it in your brief detail what you would have had her do on her floor inside the closed door the room had it a closed door exposed to the more two found a catered kit would nobody said anything about a camera in durham there was a camera but in this case we've never seen it why didn't you move to a bench or complaint even if there were all these other facts that you put in your brief why didn't you put them in your complaint i relied on someone else more than i should have and that's only and it's been really good how much discovery has there been with respect to these issues today none wise that well one thing it be pictures of what big cheers of the deceased this is what he looked like after the beating and david ok now this doesn't go to the to the question that this cour wants not just to keep frivolous claims it is to protect state workers state employees state officials from being sued  for not doing something that they didn't have any reason to believe they should have done for example which wouldn't fall in the category of a spurious or frivolous claim necessarily but it would certainly fall into the category of something that no reasonable official or employee in that person's situation would have understood he or she had a duty to do and that's where i'm having the most trouble with your case here because nothing th it gives any basis to think that a unit secretary i mean you have it in in your pleading you haven't given us any rundown of the duties you haven't cited anything  indicate that a unit secretary has any kind of authority to do anything except what a doctor tells her to do little don't even know that we're in town to discovery and we want to case that the lower court gave you the opportunity for discovery eyepieces i'd expect you to stand up here and tell us everything you found out since then that you could put into a complaint if we were to send it back well about the tell you that when done tha is the discovery that we're off the we're going to and yet you have this there's secretary sitting there subject to a lawsuit when you could i one of their factual question is the case based on the facts that you do have that whatever did happen here there was it more fifteen minutes between the time the actual nurse left the room to go and look after other patients and that nurse was advised by the secretary that there might be a problem in the room of your clients to see  anything incorrectly misrepresent this court the factual timing in it is in max quick review of the briefs i still do not see and therefore i'm not clear in my own mind based on the plaintiff's allegations that before us is the twelve the six question i mean i know your right to appeal was purportedly from the qualified immunity the terminations but she didn't actually make a qualified the immunity determination she just said that there was a allegation in the complaint that could give rise to a claim that that as to which there might not be qualified well and it also as as the a not the case the end that when we look to the facts all of the facts that are in the record however they got there that we simply do not have a clearly clearly established law which is what would be required to