based primarily on summary judgment decisions which of course judge the sufficiency of the evidence not the sufficiency of the pleadings and what's important about that is the judge here made several conclusions factual findings that are not only inconsistent with the pleadings but opposite of the pleadings let me give you the one that screams the loudest we have here a situation where there's been an allegation that this prison allowed a pile of wood basically clubs things that can be used as weapons in an unguarded unsecured area of the prison accessible to inmates to dangerous condition we played in the complaint we actually identified a witness who will testify in paragraph twenty one that the lid working facility was not operational on the day of the accident yet the prison allowed the wood to be unguarded and fully accessible yet on page eight of the district court's order operational folks are not inconsistent they are because it assumes it what the judge is doing is he's saying therefore it's not a dangerous condition because you need access to the board i don't read it that way and well she writes it in the in the portion of the opinion where he's saying that we cannot establish a constitutional can claim and he's saying that the inmates need access to these boards they're aerogel they're not dangerous that's inconsistent with the facts plus there's two elements this is the nd point there's two elements to an th amendment clime one is an objective element the conditions have to pose a substantial risk of serious harm i don't think anyone in this room would dispute that if you have an unguarded pile of   that it looks like your allegations are really similar there is this dangerous item that can be used for an assaultive for assaultive behavior but how do you get at the subjective how is your case different than sure of a few points on that clock a versus roy was a case where somebody was injured using a piece of machinery and the allegation was you should have had a guard rail on the piece of machinery and had you had it i wouldn't have i think cut my hand or my finger or whatever the allegation was and what this court said is that's really your ordinary negligence case there were no allegations in that case the court said that showed that the prison officials were actually subjectively aware of the danger in this case by contrast we have played in multiple places that the prison officials were subjectively aware of the risk that these wooden boards posted up though it wasn't that and that just because of the nature of the board because because even they allegations of prior inmate on inmate assault didn't really deal with this kind of a tool tool equipment and materials so are you really are you asking us to say that this is just something that so obvious that a prison official subjectively would know it would given his or her experience within the institution that that could be used as a weapon the direct answer is no we're not asking you to rely only on the obvious conditional though that under from a risk is brought in could be enough we've also alleged that at least one inmate specifically warned me oh hey there's a dangerous pile of weapons that could be i'm sorry would that could be used as weapons and he ignored how is that different though because that's the that would be the end mate sort of this is an obvious problem here as opposed to say an saying i heard another person in my salary in my pocket saying i'm going to go grab one of those pieces of what looks like a great weapon that that seems to sort of get a little closer well i'm not i'm not sure that there's a material difference between an inmate putting a guard on notice that hey i've observed something that can and will be used as a weapon because they're inmate status do you think that that matters that's a different perspective is that what you're that the subjective knowledge of the risk is from the prison officials perspective they have to become subjectively aware of the risk under u s supreme court precedent in this court's precedent that can be established on summary judgment by the fact that the risk is obvious but we don't more than that pile was there that's part of it but they also should have and did perceive a risk because they were made aware of the risk i understood that was what your argument was and what bothers me is let's take the case of a slip and fall on a recently scrub prison walkway where there is no you know be well we are orange crush and wet sure sure and multiple inmates said told the passing guards you know that's awfully slippery out there going that far and therefore i don't agree with the argument in its in its can in all its final element yeah i'm not sure quite frankly ron and i have not looked at slip and fall cases but i will say on an element one i'm not sure in the th amendment all over you know the twin cities as you well know men everybody every employer knows and every property manager knows what it knows that that's a prudent thing to do ok so here they don't do it and the end made say you know you guys are  stuff lying around for prison yard that could be used as a weapon all the time sure and the difference your honor is if prison officials know it's there if they know somebody in their cell has fashioned a knife out of a toothbrush and they say you know what we're going to but the circuit your honor has required and noted that common negligence as plaintive just meant it mentioned even gross negligence does not constitute cruel and unusual punishment under the  abolition at the pleading stage that defendants were aware of a subjective and pervasive risk of harm that they and that they subjective that that risk was there and then deliberately disregarded as this court indicated and call k versus roy that standard is a highly culpable state of mind and it seems like a pretty tough standard at the pleading stage maybe you get as counsel noted the end of his argument you get into discovery and you determine yeah a or nay what really is going on but how is someone going to plead to that kind of heightened knowledge  particularly being an inmate in an institution to meet that standard well your honor the standard is intentionally burdensome because as the united states supreme court and as this court has indicated in made an inmate violence is unfortunately you a single case where that has been upheld and the inmate an inmate violence just to follow up i guess on the previous question what else what else is at the disposal of the inmate to actually allege that at the pleading stage well what would be that we've got a case well well there was some evidence of a falsification of some reports which i think that sort of then go exact question of how an inmate might get that even at the pleading stage but what's in it what's another example how could they prove i'm sorry sufficiently plead this prior instance is a very common one in the in the on inmate contacts on this case plaintiff attempted to do that within five minutes  d to the defendants in the complaint doesn't actually say which specific defendants actually received these alleged complaints from inmates that these tools were dangerous and let's remember that the deliberate indifference standard is case specific we're talking about providing access to tools and construction materials to inmates working in a vocational setting and that's why your honor there is no obvious risk of harm what pla asserting is that any provision of any tool or construction material to an inmate is an obvious risk of harm and if that's the case then avocational programming in our prisons simply would have to come to and haul you mentioned the  your perceived weaknesses in the allegations regarding the reporting from another inmate are you suggesting that reports from other inmates that hey these boards are out here i think that these can be weapons are  suggesting that that would be enough at the at the twelve basic stage to survive absolutely not your honor that is just the strongest evidence that plaintiff has brought forth today and has emphasized during his argument that it from that would be not enough so really all you the only example you've gotten that you've given that would be sufficient is just to is it happened before sure prior incidents or perhaps prior reports from another officer to a particular inmate that or to a particular officer that there's a problem that needs to be corrected in this or that's another report though you said that it would explode have to come from i'm trying to narrow down what's enough here so you're saying in a report from another officer that there's a problem here but not a report from maine ma observing it that's correct because in this case your honor we're talking about a location inmate by design in the complaint makes it clear that these inmates were required to have access to tools and construction materials you perform their work but your hon even let me bring you the word of the district what the district court thought and that is that we got seven the fens playing very who played had very different participations in this from zero on up and you have end qualified immunity is ok person by defendant by defendant now for the supervisory people what case as ever held in a failure to protect  claim that a supervisor is liable just because he or she did not say clean that up for a risk that was that was for a condition that was a general risk liability under nine hundred and eighty three that's not a basis for a for a failure to protect  indicating any personal involvement of the supervisory defendants and the only way that that it's a little more than a little more than just general the allegation here is that the at least some of these supervisors were warned specifically by in because for example in williams versus well just the a circuit held that in order to show deliberate indifference there must be more than just an isolated incident so in this case to the extent that someone went to  and indicated that there was a belief that providing access to these tools was dangerous there is no evidence that officer bebo was crediting that particularly when inmates were required to have access to those materials an officer be able was not present at the vocational setting on the day of the incident so generally speaking in this woodworking area of the prison inmates are required to have access to wood are they is that locked off that day and is it is it locked up or somehow secured when it's not operational no your honor the plaintiff pleads and we must credit that is true that it is on secured and accessible to inmates once they are provided access to the vocational  that particular case st of all prison officials knew that the inmates were retaining broom handles in their rooms a broom handle would have no other necessity within a room except for possibly as a weapon and and the evidence indicated at summary judgment that the defendant in that case knew of it that there were thirteen prior incidents and there were reprised previously reported threats of violence none of the cases cited by the plaintiffs deal with tools being provided to inmates in the vocational setting so there is no clearly established law there and the united states supreme court has been very clear in recent cases do you see vs west being a great recent case that the facts must be fairly similar it is not enough to have a high description of the standard of law that being that we must protect inmates from violence there are no cases on point here that would have put defendants on notice that by providing access to necessary construction materials to inmates in the vocational setting before any the tools may be necessary in a vocational said i when there are book ational activities taking place but here it's alleged that industry room was not operational so you have a pile of wood sitting in a dark room accessible to inmates that's a dangerous condition when no guards are there and it is completely accessible number two the court and brennan this gets to the sufficiency of the pleadings says whether a prison prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways including circumstantial evidence and the fact finder may conclude that a prison official knew of a substantial risk from the very fact that the