and we'll hear argument next incirlik the new york state office persons ten seventeen four zero zero good morning your honor sir may because before you start as i understand it you've reserved three minutes for a bottle and then after your  while the these defendants pelleas had the responsibility for the care and custody of michael cera walk he was subjected to gross fully grossly neglectful treatment in care as well as its certainly shows you the gravity of the situation but my a minor right that principally what you're looking for what the parents you're looking for  really the the office itself a saying in our professional judgment we can come close to one on one but that's not necessary is that the debate that's the clearly established that michael had a established right to reasonably safe conditions and the and and to eliminate physical psychological and emotional abuse there's a very intense debate about how that is could be accomplished i mean whether it's you know it's you it's you acknowledge in your opening comments and if there's make i would say the court district court relied on and the defendants make the argument that they did try measures that were not quite one to one and that those measures were effective and i would say there's questions of fact as to both of those proposition or first being that they did try this enhanced staffing and if you look at the record that supposedly went into effect in january of two thousand and ten enhanced staffing because michael at that point had been subject to self injur behavior abuse by certain staff and supposedly this was an attempt to address that your honor so and that's what you're saying the debate is but in fact if you look at the record there's an e mail from miss ellie at the treatment team leader a year and a half later in august of two thousand and eleven saying we can't even beat minimal staffing much less enhanced death in for michael so that and there's other evidence in the record including the fact that the defendant said that it including the fact that it wasn't even part of his treatment plan in true that is eleven and even after that ms o'brien there's an e mail from her questioning whether it's being implemented so i think there's a question of fact about whether the measures that they say were effective or designed to be effective were even implemented and then the question there's certainly a question of fact about whether to the extent they were implemented they were affected over that course of period time the five plus years he goes to the emergency room twenty three times according to absolutely there's no dispute about that that that's a major source of of the problem and the recurring in trees but as as of january two thousand and ten through the end of his period of favor road december  twelve december two thousand and twelve he goes the emergency room fifteen times out of the twenty three that doesn't show effectiveness of the measures that they say they implemented in their professional judgment that were designed to be effect and our expert says the standard of care in that situation for somebody like michael if well let's look at it it there is such a thing as one to one supervision correct and if somebody needs that supervision it would be michael i mean how can you say that given the nature of his disability and the recurring daily physical injuries he's experiencing and the acknowledge effectiveness of having so many close we're talking about times that he's a favor road which is during the week it's supposed to be from i think it's three o'clock on through the evening and yes while he's there certainly that would be the question also on the weekends and if you look at the record the record shows an increase in certain self injurious injuries when one of the sores on weekends so those are the times when we when our expert and not just the parents the parents are advocating but then you have neutral advocates the call commission on quality care saying that's that's what this gentleman needs you have the medicare medicaid i'm sorry service administrat who's not the parent who has a professional judgment she says that's what michael needs and that's in two thousand and nine they don't they don't do that they say we exercised a professional judgment by implementing this in hand staffing which is almost as good but it first for the record shows it really wasn't implemented the defended were aware of that through their own correspondence that it wasn't being effectively implemented and it wasn't effective as our expert points l one of the one of the components of the enhanced staffing was this fifteen minute checks on michael well michael self insurance behavior isn't he's not going to correspond his his behavior to fifteen minute intervals doesn't doesn't make sense but to get to the core of the question and certainly this court has acknowledged in xeno and and other cases reynolds versus giuliani that defendant can still be deliberately indifferent even when they take some action if they know or should know or the jury could find that they knew that the action that they took was not a fact steps to address the constitutional violation what's going to from door to to keep him reasonably within reason safe from physical emotional and psychological harm but that's the liberty  courses work well i think when you look at it within the totality of the circumstances then it's not simply to be there so that they can help intervene when he's about to engage in self injures behavior it goes to the whole whole  situation and you have overtaxed staff who have other residents that they have to deal with and then they have michael without without having the one to one supervision then that burden falls to them that that and you see the resentment there's two cases of abuse in the record that occurred during that period of time that were captured on video that the parents had installed so the response the failure to to properly apply the response to failure to properly give medication which is obviously a serious issue all of those issues could be addressed at least in part by having the one to one supervision or at least t  injury free who's determined to injure himself so i don't have to imagine it before law school i worked with serial severely developing this able to do so i understand the pressures and the daily difficulty for people who are usually not paid as well as they should be i get that very much and that's why i think the court needs to focus certainly on the administrative defendants here who had the authority to take action there's  substantially deviate from professional judgment or be deliberately indifferent to the ineffectiveness of measures that are taken that do not keep an individual in their custody in care non punitive custody reasonably safe from harm whether that harm is from the process of the sins that is the substance of due process rule in this context yes you are so i can go to negligence i think negligence essentially is if the court determines that either i think the substandard due process claim subsumes the negligence cooling and the same evidence to the extent that evidence the something to do process  negligence crime i agree something to do process negligence plus it is either grossly negligent reckless deliberately indifferent substantial deviation from professional standards but yes it's something cut out for a second missis graham and miss finster sure well i believe it was clearly established under young berg and other cases including cases of this court and  the district court acknowledged that michael did have is he was in non punitive state custody did have a liberty interest in being kept reasonably safe from and free from physical and psychological and emotional harm and th there's questions of fact here about one whether the defendant took actions that did that and to whether they knew that their actions that they took were or failure to  act created the excessive risk of violating that standard and i think that's clearly established as to the personal involvement i think it can be difficult it's a difficult case to try and paper there are several defendants there's five years of conduct but we are tempted as best we could to tie the individuals to the underlying violations and certainly when you begin with these with this like of that what i think it depends on the defendants i don't think it's so difficult with the administrative defendants i think the three of them all had acknowledged authority to take action that they did not take all had awareness of continued problems  that serious problems with respect to michael's care for a road throughout the time he was there and there are questions of fact about whether they took effect of action or substantially deviated i think it becomes least court like ring what i represent the administrative defendants in this case that would be delay any cleese and in oh so brian just from a what i would suspect might be somewhat of a helpful factual backdrop found in the record none of these individuals work daily at the frey verraros site where the care and treatment was being carried out they are not in a position to just randomly fire people they are not the persons who hire persons they are there to implement the policies that preexist which include updating behavior modification plans if and when necessary updating the restrictive use of the device plans if and when necessary updating the individual plans of protection my worthy adversary seems to be merging the issue of one on one supervision with what are clearly separate and distinct of acts of alleged abuse let me drop back to where the district court was when the decision was made regarding the summary judgment motion the lower court dismissed many of the claims and granted summary judgment to many of the defendants but not all the district court going through a substantial record and writing comprehensively at one hundred twenty eight pages noted very clearly that these dismissed defendants were incredibly responsive to the needs of michael cera luck i'll go to one on one supervision right now if i could since it seemed to capture the attention of the court right from the get go where do we begin we understand you understand by the way that there was separate issues but the central issue seems to be the lack of one on one supervision and whatever flows from that and some of the things to flow from that and some of the other issues and i will elaborate on that directly your honor we start with what brings us to this court federal court has to be a constitutional a violation of a constitutional right what makes up violations of constitutional rights are directed it individual people not at the organization as a whole what did mr gleason do or fail to do that constitutes deliberate indifference let's see on the one on one supervision which wasn't an issue when mr searle at first came in to live it f it developed later based upon complaints and concerns by his mother and father what did mr gleason do what did mr de news so do what did ms o'brien do they jumped right into it now certainly in the record there is some commentary by others involved in the picture of care regarding whether it should now be one on one supervision some e mails one of those persons said one on one or change the dynamics in terms of how many people are in that house this was looked into and the record shows very clearly looked into very clear we discussed and very carefully thought out when enhanced supervision was the method of addressing this issue and that enhanced supervision included dropping down the census in the house two people were taken out and another person put in and the the the whole idea was to have more time to get to mr sir lock michael cera lock if possible because this is not anything that can be done perfectly if he appears to or is engaged in self injurious behavior and although counsel says otherwise that things got worse not better that's not what the record reflects the record regarding emergency room injuries speaks to the vast majority of them happening off premises at us we go industries where council says actually the supervision was one on one if not two to one so we go back to the house and we find out in the record reflects this that the self injurious behavior became less over time with the enhanced supervision but we have to keep looking at this from the basis of not a state medical malpractise or negligent claim abiding by professional standards of care is a state malpractise claim it's not a constitutional claim and look at it from the constitutional level were these judgments that were reasonable from a professional standpoint as opposed to and i believe the quote was from the younger berg case or were they choices that were a sham or otherwise illegitimate there's been nothing alleged illegitimacy we have we have the benefit of your argument mr room with thank you miscue thank you good morning your honour's my name is katherine gail and i'm here representing you a unique group of defendants three registered nurses who are not directly working with the patient with with the client but were in fact working as nurses who are battles and denise sounds correct your honor and these three nurses were charged with the duty of providing oversight to the direct care workers in terms of medication and ministration and medical issues and i believe the record is clear and certainly the decision of the court below speaks to the fact that any other  issues originally alleged against my nurses have been abandoned and the only issue before the lower court was the medication errors and whether or not the nurses who were not directly responsible for administering the medication whether or not they took mistake in even if that mistake is repeated over time does not rise to a constitutional level in and of itself and i think here that the record is clear and and are rather unique this this patient was this client was receiving at one time over fifty four pills and two powders per day taking just the sheer number and variety of medications and supplements and the manner in which they were administered and most even using the numbers which with which we disagree even using the numbers set forth in plaintiff's briefs thirty seven errors over a five year period is clearly de minimus so even on that basis it would not rise to the level other examples indicate errors being something as simple as changing the medicine from three times a day to two times a day but the patient receiving the same dosage the suggestion is that we should have been proactive rather than reactive  but using that standard would require a nurse literally to follow around the caregiver as he or she was distributing the medications rather our nurses complied with standards of care and standards of practice  meeting on a weekly basis to review and update the staff on how to administer medications and to check to see if the medication if mcnabb occasion errors were in fact being made and if so that the  people were appropriately retrained and recertified  please the court i have the privilege of representing the supervisory defendants ms elliott mr ms alexander ms the beef mr read him mr perkins if i could simply quote from the decision itself in page two in some the undisputed facts established that the supervisory defendants went above and beyond to accommodate the surge constant demands and did all that they could to provide michael with the best care possible and then again later on in terms of discussing the qualified immunity course doesn't have to be so that's almost taking on too much best care possible and i think that your argument is that it doesn't have to be the very best care possible or i just needs to be within the parameters of professional judgment so in fact it a greater honor in fact the judge d'agostino went and said that they want to belive in beyond what would be normally expected in performing their duties they're not policy makers this whole discussion of one on one care would not be within their scope of responsibilities or privilege they went up even be able to make those determinations in fact what they did was their very best to implement the care plans that were prescribed to them to implement i did not hear counsel actually even discuss the supervisory defendants in terms of what his theories were on the subpoena so i would rely on our papers like you may please the court my name is sarah rulon and with the sadder law firm representing to appellee diane finster i have very little to add to what my colleagues have already stated other than that there is no genuine issue of what what would you think is enough to be conscious conscience shocking for tens of conduct so i think that it's in county of sacramento versus l violation or may not be a constitutional violation what i would like to do is refer the court to the southern district of new york case decision west versus whitehead which we discussed in our brief that involved a client very block who was hit with hangers threatened with a hairbrush gagged with a bed there was an indication that this conduct had happened over several months if not years we would submit that that is heart stopping really brutal behavior and that the single thirty one second video that is the basis for the allegations against diane finster simply does not rise to the level of brutality and in fact most of the videos that are in the record that are that involve diane finster show her being very gentle with michael cera like she helps him get out of bed she helps him get dressed and all indications are that  very kind with michael cera lock and that the single video just does not show the level of brutality that would shock the conscience in a constitutional sense another southern district of new york decision that came out just this summer dk versus teams that's at two sixty f supplement third three thirty four southern district of new york july fifth twenty seventeen the reason i draw your attention to that your honor is because that decision involved people in an ira who were non verbal who were profoundly disabled who were punched in the base who were shoved to whether that was conscious shocking behavior that would constitute a constitutional violation and again the conduct that is shown in the video of dion fister simply does not rise to that level and take it in but you're not suggesting that the authors depicted in decay are the she more of conscious shocking behavior or you know sir i don't think so but i think that if you have to do less than that and still be conscious shock i think it's pretty clear from smith versus half hollow hills that as a single slap could be conscious shocking take it in context but the courts have been very clear that it's a totality of the circumstances decision and when it's taken with the entire record as relates to dion finster which is a very small portion of the record we just don't have that level of brutality that it's going to be evidence of in the record of malice other than maybe what a jury could draw from the video there is absolutely no record of malice in fact dying finster in her deposition no noted that she was chris lane in that incident explaining that incident and explaining to sort of her was asked whether i believe the other staff criticised her or gave her a hard time because because of her conduct toward michael and she said that they did they criticized her because they thought she was being they thought she was spoiling him that would  you your honor as we all know michael cera lock was a profoundly injured artistic retarded child in the care of the state that periodic lee has behaviors when his  site that had to do this and michael started up maybe his starting up appeared to be starting up a behavior may very well have been starting up a behavior and she put his legs early he was on the arm chair of the chair he was sitting in and she put her legs across his to keep him from doing anything else and ran her finger across the front of his face and these are all techniques that were taught her by the state of new york for handling a michael when he was starting up a behavior what you would do is put your legs on him and then he couldn't bang his head on the floor or injure him self you actually have one circumstance that he said do a bear hug on the guy and hold him down if you have to they're no pillows around you can't get into them you know the thing and it's an important thing to do because they at the time they had the safety air and they were taking the safe chair and he had all the nurses had to team up and carry one hundred eighty pound thrashing michael to the safety there so if you could get him calm down before you got him that far into one of these behaviors or your argument is that her behavior conduct does not shock the contemporary just just briefly respond to that my understanding of the miss graham's incident is that she was identified by another staff member as having poked michael in the face and said i fucking  you're so bad i can't she was transferred from the facility she was but i can't see how that could be possibly said to be a therapeutic intervention certainly is  not and by the way the person who reported it who i believe was miss main's was then punished for supposedly reporting it too late which as our expert points out this is something in the record you are relying on some form of psychological harm but is there something in the record there is in the record that he had despite being nonverbal he did have excellent language reception skills so to say that he didn't understand what she was saying or the tenor of what she was saying i think would be would would certainly could be disputed and so i think there is psychological abuse that was early on in his stay in favor road and certainly set a very negative tone for him in terms of being away from his parents and caretakers for his first twenty five years so i would say yes there's some serious harm given the nature of michael's disability and how vulnerable he is i think you do have to look at that not for sympathy sake but for understanding and he did engage in self injury his behavior now i don't know of anything in the record that says he immediately engaged in self interest behavior after miss graham or miss fenster did what they did but  i don't i think that it's reasonable to say that that type of treatment is not going to reduce the self injury behavior and if anything will increase it i think there were many number of things that were said i don't want to necessarily try to rebut them but i would say many of them are disputed questions of fact in terms of the medication that the record keeping our experts said who reviewed the record keeping said it was far below the standard of care the medica evidence of harm is there what allegation of harm is there in connection with the medication errors for example overdose of medications that were not harmed that were documented well the harm being that he  didn't receive on certain occasions he didn't receive the medication he was supposed to receive another cajuns he he received too much of it that i think is an inherent part in and in and of itself is inherently a harm given particularly given the nature of certain of the medications including a powerful psychotropic medication yes i would say that that is an inherent harm to receive too much of it or not to receive it when he was supposed to i see my time is up i would i would just emphasize that there are questions of fact on all of the claims we didn't get the da da claim which is really more of a legal question i do think that it bears noting that i don't want to repeat our brief but i believe that the eighty eight does not require that services be provided to non disabled individuals for there to be a duty to accommodate that particular individuals even henrietta seems to suggest the contrary but we've got your argument thank you thank you very much well argued on both sides