good morning and welcome to the last day of our sitting here in jacksonville judge hall and i wish to thank judge david proctor from the northern district of alabama for sitting with us this week is a very experienced and highly regarded district court judge and we're very grateful of the plaintiff to prove a substantial risk of serious harm analyzed through an objective the defendant's dilip was the defendant deliberately indifferent which itself is three elements subjective plaintiff turning to the facts of this case mr bloch demonstrated a substantial or at least the allegations as set forth so far at this stage in the posture construed as they must be in favor of mr demonstrate a substantial risk of serious harm for three reasons the beginning reason is first mr black's allegation of branding under this court's precedent in that that is correct but farmer as well as the rain and hail and a few other cases stand for the proposition that the defendant does not have to be the perpetrator of the that is correct this this circuit has explained i believe in a case that is on point here long marca that causation in a prison conditions case can be resolved by answering two questions the first is did the defendant create the risk of injury and the second is did the risk of injury or did the risk lead to the injury and those are separate questions that when both is resolved affirmatively support a conclusion or lead  conclusion that the defendant's actions were the proximate cause of the injury and i think that case speaks to the facts here as applied what polling did was create a dangerous environment at a very high level for mr b is think the answer to that question is meaning that the deliberate indifference inquiry before this court is was a substantial risk of serious arm created by officer points actions and that that the answer to that question is yes pulling created conditions that were unreasonable inhumane and exceeded the legitimate bounds of confinement for an inmate those conditions are what  believe created the zone of danger under which mr hypocrite committed the actual violent assaults but the supreme court and this court the circuit has not required a showing that the conditions that were created were done with the intent of a specific individual attacking another that's still different from the causation question if we grant you that there was an environment created where there was a risk you still have to show the officer analysis like your question suggests to me i think the market recognizes that it may not it may not be possible or it is or for whatever reason it made it is not necessary to show a direct link from an individual comment especially in a case like this where there are multiple factors at play i think it's it is not looking through the substantial risk of serious harm and in fact the claim more broadly in addition to branding i think the placement of mr hip  polling denied it but the state later and i believe the record because of what the i have to i will look your honor for the record citation but the state contradicted that in their filings below well even assuming that that a court is to assume or an officer or court me assume that an officer by virtue of their role their security related obligations within a prison knows of the conditions of or the circumstances of an inmate's history and threat to others so when there's at least in a case like this where there is an objective conspicuous marker of someone's criminal history but he doesn't understand the record and helped with this there's no evidence that he  i think that that is presumed within the court's description and i believe it is again the lane decision that talks about cards there should be or are expected to be on notice of past conduct so i think it is  i think that would encompass an obligation or responsibility yes to know the history of an inmate and i would just clarify that there is no case that that i'm aware of at least that says that the only relevant history is defendant or inmates  conduct any prison i think here the nature of the sexual assaults that committed by mr hepplewhite before he was incarcerated are equally relevant and i think the caldwell case recognizes that there's a case from the district of oregon that very clearly believe it's your clients i think we can i think most importantly we make no judgment as to how it affects the merits of the claim meaning i don't think it's relevant to the legal dispositive but i will point that mr point to the record where mr bloch says that he was afraid to report it and so i think it it substantiates or add some credibility to his allegations that he had been threatened by officer polling that officer polling both had told him that when he made his comments that he could be fired for how he was spoken and then later not threatened him not to further snitch after mr bucket first made a report and so i think what we are that night it looked like both parties agreed that mr rosa captain rose was the officer in charge and polling was under rather that's my understanding as well ok so this goes to the interview first before you put in sales why wouldn't it mr rose who was the faulty person here on the interview that mr brock said he never got i believe that there that that was an incorrect that that was a failure to adhere to present policy or at least i take mr balk at his word about that but the i do too because it's in the light most favorable point i'm trying to understand some rose is the person in charge of the unit there are two people on the other one to polling how do we know from this record because i could not tell who said put cell three are how that happened i couldn't tell i will look for that internet break my you don't need to look for it in the right do you know how that happened i read the state's pleadings below to see the point that officer polling was in morning you may please the court my name is edward wangari and i'm here in behalf of officer polling the court affirmed the grana summary judgment from one to reasons for going into those two reasons i'd like to address something that was brought up in mr blocks initial presentation the idea that we can presume either that corrections officers did know or should have known about a fact that's relevant is flatly foreclosed not only by the farmer decision from the supreme court but by a host of the citizens from this court as well under the qualified immunity now spread party under the deliberate and different analysis the second prong is purely not purely but a subjective inquiry into what the officer knew in a subjective inquiry into what the officer should have done with that knowledge so to the extent that there's suggestion out there that there is some sort of fault generally speaking or some sort of responsibility for an officer to be aware of certain information  our position on that your honor is that those material facts are not relevant for all the reasons why this court should affirm the grand summary judgment so getting back to the two points that i'd like to make and i would like to focus first on the issue of mr blocks waiver of his branding argument simply put this branding argument as the grab them in the arguments that mr block is advanced on appeal and as materially different than the one that he is actually advanced at the pro se at the district court level below so it does your honor but there's been no there's been no suggestion that the denial of the point of counsel was problematic or was type of situation where there's a pro se him a blow who files a bunch of arguments and who argues at a certain level of the matter judges report a recommendation and then fails to bring that information or those arguments to the district court's attention in the of this really important reason is that we want the district court who's actually deciding whether or not to dispose of that case they have all those arguments before him so block was warn that he would waive the right to challenge on appeal the district court's order we consider that getting through the to the next point this is a case that turns on qualified immunity and in this case there's nothing that has been cited there's been no case that i'm  under the united states supreme court this court or the florida supreme court that would clearly establish that what happened here the particular particularized facts of this case violated mr block's clearly establish branding a particular inmate as a snitch so there is a distinction between the type of brain that occurred in this case and type of brain in the colonel harmon case but more to the point because this course has said that the clearly established rights need to be determined in light of the specific context the case it's important to put the facts of this case into context but we have here even assuming the remarks were made as we must at this posture other particular facts is borne out by the record of this that the remarks from made there's no record evidence that any other inmate on the administrative segregation unit heard of these remarks and there's no evidence that the alleged branding spread from the ministry of segregation unit to the general population where where a guard branded the plaintiff as a snitch and that resulted in threats on well that's a branding argument sort of at a very general level but if you look at the particular facts of this case there is another particular set of circumstances that pull this completely out of the harman case and that demonstrate that there was no constitutional violation at all let alone one that was even remotely clearly established in those deal with the separate arguments being made here and that's the placement of people in the cell itself so in the harman case if an image is placed in general population and left the state in nature essentially it makes more sense to say the branding would or could lead to a particular assault that occurred here the distinction between that case in this case is that mr block was being placed in ministry of segregation to actually establish in the harm in case that this action was a clearly is that was violation you have to prove that the facts of what happened that led to the assault itself were clearly contemplated by harman again what we have here is mr pauling taking mr block putting him into the ministry of segregation unit after that he placed another offender in that same cell that offender had a relatively clean disciplinary history as judge hall had mentioned earlier this if in or had two different infractions over the course of perhaps about a year and a half those infractions for theft in for disrespect to a prison guard based on polling information the information that was available to him in that based on the record evidence we can conclude he was substance subjectively aware of thought at least with respect to the idea that garge not brand an inmate doesn't harm an clearly established that if harming clearly establishes that inmate branding is in isolation an issue we still have to go forward and show that the inmate branding itself under the facts of this case resulted in deliberate indifferent deliberate indifference if i'm in violation and to get to that point there are the constitutional violation that's correct your honor so that's what we're dealing with here arguing that in essence the hippa light was an intervening cause of the injuries i think that's a strain of one of the arguments we've made and i believe the judge proctor whatever he was questioning my friend was hitting on that as well and we think that that's a fair way to dispose of this case also our briefing we focused more on the objective risk in the subject of awareness but we also made the point that for all the same reasons there was not a satisfaction the proximate cause element we don't think there could be and to be certain mr hip or mr block it you know  argument first and foremost was that there was no constitutional violation at all what we have here is what we have conceded to be and what mr pauling self has testified to were terrible comments and there's no way in no way with block that was substantially likely that a sexual assault was going to occur that's just not borne out by the record and at the trial court level mr block had the opportunity to do so it several occasions  him an awful number of opportunities to ask mr pauling about this placement in particular what we have here though is officer pulling taking an inmate who had a relatively clean disciplinary record in placing him my friend representing mr block his focus an awful lot on this designation as a violent offender of special concern but the problem with relying on that fact is twofold number one there's nothing in the record to suggest that mr pauling had any idea of that  nation and based on this court's case law we can't presume that or we can impart that or we can't fault him for not knowing that at least for purposes of the eighth amendment's deliberate indifference analysis the second part is that it really tells us very little about mr hip alights risk factor can see i mean it's the characterization is what it is it says that he was violent but this is coming from an automatic mechanical application of florida statutes that attach to the particular offense for which he was convicted so this is long before mister hippel i was incarcerated in the area that led to this this is all in the first place in more to the point this designation would come if you would for instance committed a burglary in for that if it's just standing alone that designation it tells us very little about placing him in the administrative segregation unit with mr with the split is just not the type of actor not to have information that could actually give rise to subjective awareness that a sexual assault was more likely to occur based on that placement correct we are not disputing the polling was the one who made a decision from my understanding of the record your honor mr pauling i think this also underscores the rather sort of limited knowledge he had this was a housing prison official he was the one who had they were certain reasons to move one particular captain brought captain ross is the supervisor that night polling is making the decision and might come in and he put them into the sales were not the spirit of the record below concerned was not a threat of violence and for that reason that second prong of the qualified immunity analysis just is not in on this record cannot be satisfied if there are no further questions i'd like to return very briefly to the waiver argument because i do think that there is there is some importance to that i see my time is running short the only thing that i would add to that is that it's mr block really does sort of try to treat this rule as if it apply claim by claim and tries to argue that the objection to the claim itself preserves all the objections that could go into this by the plain terms of the rule them confused about your why are argument you  did miss i would lock that he would have to object to the legal conclusion that even though these remarks happened that they did not and they could not on this evidence a status a genuine issue a material fact at least to the extent that mr block was arguing that they demonstrated substantial awareness subjective awareness of a substantial risk and we would also support the court that the magic judges failure to address the branding even though he acknowledged that it to patton versus role that is six seven eight that appendix eight nine eight and i think that gives a pretty good indication about how annals of this for the past apply this rule particular in the process context in a way that's i should say is not it's not dispositive of waiver in favor of the state here and that is because evans demonstrates that when a claim is objected to it is preserved for objected to it they are in our state it is preserved for subsequent appeal and for all of the reasons that this court said and i would just point to pages five to six of our reply brief which which lays out all of the objections including to the deliberate indifference claim itself that mr block made  absolutely mr block described the construction of the prison and in the wing in particular explaining how the physical layout of the doors led to communication amongst and by the inmates he further explain running i don't believe thinking through now the branding cases that there is i'm not aware of any element any case that has held that the actual inmate who committed that the attack was present when the branding occurred i agree that the branding cases as as well a job as he could do to provide sufficient evidence on this point and the state my friend pointed out to mr block proceeded press and he tried and was denied access to an attorney and that decision is not an appeal but inmate which i think is particularly unreasonable to expect mr block himself incarcerated and proceeding proceed to provide the state could also have sought out mr hip late or any other witness and provided a statement and there is no evidence in the record submitted by the state to rebut the allegations of mr bach that these comments were allowed and heard and that communication happened freely and i think if this court thought it appropriate to remand for a limited inquiry into what mr knew that would be a more fair outcome but that that is something that i think would ask too much of a pro se litigant and i counsel while incarcerated