for both sorry about that two minutes will be wonderful thank you that's right thank you thank you chrissy shorter a transgender woman house had an all male facility filed this pro s shorter stayed awake at night to guard her door defendants waited weeks to sign and submit her transfer forms if this doesn't state a claim at a screening staged than nothing does nonetheless the district court rejected her th amendment claim using an incorrect legal whether shorter stated and they to mimic claim shorter herself make me looks like she who are some responsibility for the delay she amended or transfer request multiple times that could slow down the process she requested a transfer to a facility in alabama in september she revised requests to go to a high security prison in mississippi at the end of september she amended a request is that you don't believe the high security mississippi facility was workable thence them emphasize that she wanted to be in a facility close to a family i mean if you are the this is just part of if you're part of the administrative process here you have sort of gone whoa what does she want will respectfully i disagree with with the the questions as it was presented in the sense that the reasonableness in korea of the deliberate indifference test is the defendant's burden and not the plaintiffs so even the most challenging i would say  prisoners is still entitled to the protections of the th amendment that said there was much more that the defendants could have done aside from expediting her transfer for example as she states in her complaint they could moved her away from the isolate itself further this from the guard's office to a cell that's much closer to the guard's office they could have increased supervision of her and they could have placed a makeshift locked on a lock on the door i know my my friend on the other side points out that it is a fire hazard but there's he did not state that the corrections officers couldn't have had a key and plenty of other facilities have locks on doors and it's not a problem in the p o p so there are many other things that they could have done in the meantime while they were short of figuring out and sorting out her transfer request me but deliberate indifference is a very high bar is the test they could have done more in terms of how were they deliberately indifferent they actually went through and they they exceeded to her request was moving forward now maybe not with the spee would have liked but they did recognize the risk and they were going to transfer her how do we say they were deliberately indifferent well there sugar has alleged many instances in which defend unreasonable well that they deliberately just take a step back the deliberate indifference to pass requires the defendants to have actual knowledge which is what the court below determined they did not have using an incorrect standard and then defendants can escape liability if acting reasonably and shorter has sufficiently alleged plot that they have plausibly possibly been unreasonable in a variety of ways for example twenty days passed between the  transfer request and the meeting with the gender dysphoria committee and defendant state no reason why there was such a delay she spent over three weeks in a cell with eleven men despite the fact that they were well aware that she was transgender even before  low security facility which is precisely what puts her at risk because there are no locks on the doors of low security facilities and less than a week before her assault word in an associate warden hazelwo explicitly stated that there were inmate assaults happening that there was an influx of heart contraband weapons and there is nothing all that doesn't necessarily tied to a an assault on transgender an attack like this what knowledge was there on that he she was in a cell with with men the most that she could identify was that there were were comments made about nipples and things like that but there were no attempts to a ssault her were there prior to her actual assault your honor yes yes no there were there were were no assaults at least according to the record that she put forward in her pro se prisoner complaint where the threats prior to be assault in october there were comments made but i don't know if there are any particular threats but that's precisely the standard that farmer rejects and in fact the plaintiff in farmer farmer herself didn't say anything prior to being assaulted and the supreme court held that defendants had actual knowledge even at a much later summary judgement posture and here we have a pro se complaint where she has alleged actual knowledge on the basis that she told them repeatedly that as a transgender woman who was smaller in stature who had a mental illness and who was previously assaulted that she was at a substantially higher risk of being assaulted at a low security facility that was filled with sex offenders but so given the supreme court's reluctance as it were to push the evens out any further why shouldn't we defer to the government's argument that there were other remedies available to the shorter including litigation through the peoria the grievance procedure in pursuit injunctive relief well as this court is held twice over in mac  for constitutional harms where physical injuries are result from those constitutional violations it's been there nothing it is monetary damages are nothing and no other remedy could address officer were dismissed but i'm looking at the quote i looked at the complaint i didn't see them containing any particular allegations about the would be appropriate to dismiss them at the very cases are those claims should move forward against those defendants if there are no pleadings that addressed those particular defendants that you mentioned then perhaps those could be dismissed but as for the  believe were the words that this court used to not know necessarily what was happening behind closed doors in which defendants had actual knowledge and not at such an early stage in the litigation and here we're at an even earlier stage a order so i i would i would would person i would i would submit that the court should include all defendants at this stage and that the proper vehicle to determine whether or not defendants had actual knowledge is in discovery would you address the that you suggested that we not reach qualified immunity but if you could address why you make that that think that position as a procedural manner and they cannot escape liability so i would say that there is no need to address the qualified immunity aspect at this stage because the court has a clear path for reversal on the basis of the fact that the district terrific i'm an assistant u s attorney in the district of new jersey and i represent all the individual defendants to the th amendment bivins claim in this matter all of the issues in this constitutional tort case turn on a congressional enactment the prison rape elimination act and on legal considerations that relate to that law and its implementing regulations we're asking the court to affirm and we have to begin by profit in terms of the obviously the availability bit as remedy is is one of those things it has to be very narrow cannot be a new context for example but you know it looks like much of your briefs is an attempt to a transgender plan of can bring a bit of an your to protect claim under the th amendment after being sexually assaulted and how do i tell me how that isn't actually indistinguishable from this case judge hammer the lodestar under the abbassi case is as you mentioned whether there's a new context and our view is that whether you're looking at farmer or you're looking at this tree and the key thing that distinguishes this case from those cases is the inaction of crayon and the advent of the prayer regulations that were promulgated in two thousand and twelve the abbassi court made very clear that one of the things that can constitute a change of context a new context is a new statutory prison litigation reform act it isn't what craig does it's almost heightens the urgency and the necessity for the prison officials to be trained in this area and says this we mean this this is serious stuff  prayer really helps you it's not something that is supposed to streamline remedies in any way shape or form doesn't create actually raise the the level of you know what the police prison officials are clear that this is a serious issue congress looked at the farmer decision and obviously looked at a lot of other things and said something is to be done about this and so they passed a law and charged an independent commission with doing extensive study and then further charged the attorney general with creating a regulatory scheme what i think i think that the position that was just articulated by both judges is not incompatible with our position the fact is though that congress said we want a  remedial scheme here to give guidance to prison officials to create expectations and to make and to move forward on trying to address what has been a serious problem and ignored problems but if we look at the purposes of the statute and the findings of the statute they they also make clear that the the job here that congress is trying to accomplish is is twofold st and foremost obviously to to have to deal with to separate zero tolerance economic costs for all jurisdictions of these of these kinds of assaults so let me if i could back up a minute we don't get to priya do we if we decide this is not a new context pria is one of those things that would counsel us against creating if you say it is a new context if we say this is not a new context we are there under farmer and this tree and we don't even get to consider priya doing well you're on your honor i would i'd have to agree if you say this isn't a new context our position is that prayer with the other special factors considerations pushed this into a new context and that this court should say look we understand that armor exists we understand the  not apply to either one of those cases so according to abbas even with the supreme court said we have a new context and we have to ask the question of whether a money damages remedy is appropriate i'm seven yes chamber points out you know farmer is we've got you've got farmer it hasn't been overruled by the supreme court it may only have mentioned bivins once but it was clearly a bit of ins case with respect to an assault in prison and the supreme court said that it goes back because of the way it felt with deliberate indifference and then you got bestrewn saying wow farmer wasn't specifically mentioned in the case of the supreme court  i think that the supreme court clarified what the elements of the th amendment deliberate indifference claim was and there was a rematch and to find out whether the claim that ms farmer brought that the farmer brought qualified under that standard and would allow her to proceed on either money damages remedy or the injunctive relief that she wanted to seek so there was no discussion in fact the supreme court and farmer discusses injunctive relief in this context much more frequently than than the money damages and we would also we dogs had take issue with the other side who said that there was a centrally a kind of a finding of it the men that liability and farmer there was and the supreme court set out the standard and remained it back to the lower courts to determine whether there had been an th amendment violation of the game to the day at the end of the day you can pursue money damages which you can under the amendment correct correct but i would also add judge for strep o that this is one dollar of the key differences in this case as opposed to  remedy is only available for extreme violations a constitutional violation the pray a scheme that congress set up and sort of charged the attorney general with populating would allow an inmate like ms shorter to complain about mere negligence by a prison official initiate an investigation and appropriate punishments would be meted out for a violation right up to the point where you have an official who does something that is a constitutional violation and th sort of an add on or allowing the judicially made remedy for monetary damages on top of the remedies that are already available through the statute in the regulatory scheme that that's inconsistent and that congress in fact wanted to not burden the federal government as as the supreme court talked about in a bosie the costs of bibbins litigation to the federal government are enormous but that is where the particular is the point here the injuries to the individual and that's what when they said you know it's got to be bivins or nothing in the context of history and we're somebodies either assaulted me or hurt maybe hospitalized and have you know four hundred thousand dollars worth of you know damages and and here you know she stabbed several times  nothing nothing's going to compensate her for injury i just don't see that the difference here well so your honor i think that the purpose of the bins remedy in large measure is to deter officials from committing constitutional violations an  deterrence is an equal component and the prayer regulations provide a way to deter officials from if that's does like an injunction what we're talking about the harm in the past and the only thing that can compensate or money damages and one of the biggest concerns i have here is d how in the world do you make that this decision at the screening stage of nine hundred and fifty well your honor we we think that that's governed by the there is certainly a measure of risk in there there was a finding by the folks that for dicks that she faced increased risk because of her transgender status but the the farmer standard is objectively intolerable risk what she did and what huge of these defendants to what's missing what miss what's missing what should she have included to satisfy your matrix well so your honor i don't think that i think the fact is that she included quite a lot so missing what's missing what would tips or not well so i would say that what is missing is that the facts taken together after you take them through the it all process of sort of winnowing out and just looking at the facts as pleaded there is not an objective le intolerable risk that's one and secondly i think that the actions of these defendants i'm not going to claim they were perfect but they were reasonable i think they were reasonable and they're set forth in that you know the actions that they took in response to h it and i don't know that objectively intolerable is the is the case it's deliberate it's knowledge and deliberate indifference while you're on your honor in informer it's described as a as an excessive risk for an of situation presents that kind of risk well i think your honor again i think part of the problem with this case is that if we start to link the prayer regulations to a constitutional standard we get away from the purpose of the previous statute which is to essentially instruct and guide prisons on how to how to deal with what has been a problem for decades it's going completely unaddressed if we start to say well we're going to we're going to put a constitutional liability on top of the requirement inmate be screened within seventy two hours of arriving at a facility we you know we get away from trying to balance safety and you know relative liberty within a facility and we get understand i'm looking at that the decision now it's looks like there has to be a substantial risk of serious harm to a prisoner it should have been perceived but the defendants in that particular case and then the and then a that assault or some type of harm happened your honor i would i would revise that and say that it has to be again i think your description of the risk is correct i don't think that it's a should have had knowledge i think it's an actual knowledge standard but unless it's looking at  punishment i think that's right and your honor i think that's why there is the there's the actual subjective knowledge standard i think the only distinguishing factor on that one is that the supreme court says that if the risk said there were no specific threats against her so this is like flattering call so you know she's she's out of court isn't it the wrong standard well it may be the wrong wording on or on i hope you pleadings and to sort of discard conclusory material and then to weigh them against the standard i think that it seems pretty clear to me in the opinion that judge bomba did not perceive what this what this court i think n p r s capitol  because i think that ms sure has actually focused the case pretty useful for us on page five of the reply she says that she was sexually and physically assaulted by an assailant and i'm quoting now who did not provide her with any forewarning of his intention to attack her and that the next sentence says that she did not receive any specific threat from an individual prisoner but was more generally threatened by the overall physically violent culture of the prison now that's at the bottom of page five now i think that the destry and decision in two thousand and twelve draws a hard line between these things if you recall that opinion mr pistorius had sued federal serious mental health issues but there was no forewarning there and there was no you know threat that have been made by that person and those claims went away the group that stuck around of course where the threats that were made by the gang who mr bestrewn had informed on that everyone knew intended to harm him and officials put him in a large yard with members of that gang and they viciously beat him so that line we think that this case when you look at all the facts there is risk here the same way there was risk from it in that st bucket that st meeting that mr mr in talk there was risk here to miss sure but we think that it's in that st bucket there was no specific threat there was no forewarning there was risk of course because as they say in farmer there is risk in these prisons but it did not get up to the constitutional  level that set forth in farmer i think the difficulty in this case is that if we just assume that a place like f b i fort dix is inherently and constitutionally risky to certain groups of inmates which could include an inmate like mystery in who's a informant or an inmate likeness shorter who's transgender there is no differentiating between a constitutional violation and the inherent y take in connection with anna and they compliance officer priya you argue that the complaints were too generalized but i couldn't find any case law that says that a prisoner protective custody he had been in protective custody on and off for years had been attacked on numerous occasions here i think it's distinguishable because no one at f b i fort dix while they while they did acknowledge that there was an increased risk level from his shorter no one said it unequivocally she needs to be placed into protective custody and on the record as she put it together and her mended complaint she attached records where she made clear that she did not want to be placed into protective custody so we have an inmate who is looking at the conditions at fort dix and saying i don't like it here online comfortable i feel at some risk here but i don't want to be placed in the shoe and you have officials use who agree with that and say well look we're going to we're going to try to meet your accommodations for housing we will get you transferred out but we don't we're not going to force you into protective custody at this point because you don't want it and we don't see a risk level that's that high i think that's so i want to st respond at least for the pre arguments that my friend on the other side made the purpose of preah the prison rape elimination act is not to save the government money it's to prevent sexual assault which is legion in the united states prison system and i think that it's important to note that if this court were to hold for defendants then there would be an availability for state prisoners which is where in state prison which is where the vast majority of prisoners are confined there would be a remedy available for monetary damages under one thousand nine hundred and eighty three but federal prisoners would no longer have the ability to hold their pr officials accountable for establishing a risk that would lead to their sexual assaults in federal prison and that doesn't make sense because the prison rape elimination act as we state in our reply brief from pages nine to twelve explicitly allows for constitutional liability to continue so priya regulations were meant to supplement rather than supplant the constitutional liability they did they themselves admitted that the place was too risky in and on the other side words and they explicitly stated it in her transfer request forms that the place could not provide her with adequate supervision and that she was at risk for sexual assault as a transgender woman at this facility so i would say that the the actual knowledge component was satisfied here intervention of last resort that the defendants are prison officials should do everything else in their power prior to putting them in such punitive isolation for the mere reason that they are at risk of sexual assault so the prerelease explicitly state transcript prepared of this oral argument and i would ask with the government be willing to d pick up the cost for the mistress that some your honor i won't i won't say no to them and ask the question but yes we will pick up the cost for that all right thank you it shouldn't be that much that they want to thank both of you really very very well presented arguments you do yourselves very well in terms of yourselves very well in terms of both