court had been before it a holy and contradicted motion for summary judgment that established two very important things first that is my own martinez had no idea that on the evening of december eighth two thousand and fourteen he would be involved in a fifteen second physical altercation with another inmate named a long as you know long time i'm sorry what what time period he was involved in how long a time period to have a good fifteen second physical was directly asked how long being countered taken he said second and secondly that there were no facts from which an officer on duty could have drawn a reasonable inference that any inmate including mr martinez faced a attacked prior to mr martinez indicating that by the time the assaults came to him the that the officials were on notice of danger to potential honor we disagreed that the officials were ever put on notice that there were there was a risk of harm or danger to any inmate until after all of that had ended and that's when the final inmate mr walker approach control booth and asked to be let out of the barrier but to answer your honor's first question is this approximating attack by definition if we're relying on this court's most recent decision and patrick patterson versus wendy kelley for example is when there are no facts from which the inmate himself could anticipate the attack and also where there is no evidence in the record that the inmate is the likely victim of an impending attack constitutes a private made attack and that analysis said both of those inmates testified that they never knew that they would be involved in a physical altercation with mr tanner do you think you also still holds true where you multiple in several what he said he thought he did he went back to reading his book we know that he didn't take cover we know that he didn't alert security on mr morton's behalf or his behalf or mr martinez his behalf he said and i quote from his deposition i didn't think anything of it the same is true for mr martinez mr martinez observed the interaction between tanner and mr chapman and mr martinez said i went over to mr chapman after ten or lack i wasn't aware he was going to come back to the first hear the words he uses that i was completely caught off guard he didn't know that he would be assaulted by anthony tanner and so there were no facts from which the inma and patrick patterson this court held that mr patterson's inability to anticipate the attack on himself negated ate the minute liability and then went on to say that to the extent that mr patterson alleged that the officers failure to supervise his barrett supported eighth amendment liability that at the most that constituted gross negligence and so we have decisions both analyzing surprised and made attacks your honor from both the inmates perspective and the officer's perspective in that regard turning to the second point the district court also a beaut discretion because it applied an incorrect eight the mimic standard and so even if this court considered and let me go back just briefly mr chapman statement about what went on on the second tier what the officer saw on that evening is completely speculative and conjecture in this court and at least three surprised him made attack has hailed that in may can't overcome qualified immunity and i'm speaking specifically  further erred because it employed a negligence like standard when it concluded that the officer should have known that mr martinez faced a substantial risk of harm and in its we settled that a constructive knowledge or should have known standard is not the appropriate the mimic standard the officers have to actually know about the risk of harm and then disregarded and jackson versus everett this court said while it may be no cause for altercation mr martinez never filed a grievance against mr tanner there is no evidence that any officer knew that mr tanner posed a threat to any inmate and eight bear including mr martinez let's  give the indication that perhaps something more overt was occurring that should have given the office or some knowledge that they didn't have an i just look at this point we're looking at things according to the allegations and they've been made and  not deciding the facts and if this turns into a fact these people basically we were not going to grant qualified immunity so i think the best approach is let the facts they're leaving it was of attack and let's see if that bears out and i don't think there's any your honor i agree that the court is not engaging in a factual dispute but the court is not obligated to make that evidence then that's not properly supported by the record and we make those arguments in our brief but even considering chatman statements and mr martinez's undisputed evidence there was no evidence from which the officers outside of the barracks could have drawn a reasonable inference that mr that mr martinez was the likely victim of an impending attack and one of the witnesses says they saw the the office is looking or believed that the officers could see what was occurring and any evidence that the offices were aware of what was occurring there is no evidence of that and i believe it's that type of speculation at this courthouse that cannot overcome a motion for summary judgment the officers in the record have both said that they did not see any of the any of the inmates being attacked and they were not aware of the until mr walker approached the control booth it's undisputed bad at the time that mr walker was approaching the control booth mr martinez that it had already ended he was simultaneously attempting to alert security but after all of the incident had had completed and there wouldn't have been sufficient time for the officers to intervene at that point because his getting second incident had already occurred in other words the damage had been done by that time if we accept  may have to actually be aware of the harm and they were not i'd just like to point out that even considering that evidence there it's undisputed that mr neither mr chapman nor mr morrison nor mr deposition portion of inmate chapman and that's what judge moody relied on it was only after the summary judgment denial the the motion was denied this when the supplement the record to make this argument here judge moody had the evidence based on what the state provided so in connection with their summary judgment motion they provided evidence th basically demonstrated that there was a material issue of fact and that's what he got the ny air go chapman saying he saw the three defendants in the window watching the whole time the attacks occurred now the judge woman has said that there was a dark geyser rampage in their side says it was a surprise attack what happened was in may tanner had  altered cation with the first and may one of his one of those people use with a porter with with up stairs assaulted someone on his floor the people in the lower four floor heard a commotion and or when down surprise attack if you want to go by based on what the inmates say but typically i guess it's one way it might seem my way is the typical cases we see against present officials in these circumstances as when an attack occurs and they've been put on notice that there's a grudge that there's of the end that there's some credible threat that one inmate poses to another and then they ignore it in the and that thread carried out in the inmates harm and that seems to be a completely different category of saw than one w the inmates are just together in one rises up against that the other in a manner in which prior to that a current there was no communication to officials to be on alert to the danger that that the assaulting inmate opposed opposed to the assaulted inmate and this case seems to be a little in between it's not it's certainly not the one where there was prior notice but it seems to be quite a bit closer to the surprise attack when apparently the only possible notice is that they observed some things that they could have interpreted to be pose a threat not time period of awareness then becomes significant how our long did it take the officials to appropriately respond and did that delay amount to deliberate indifference ye claim and the surprise attack well of agree the first one like an inmate case where someone comes around the counter or around the corner and they jump them of course the prison official pressure officers not duty bound to prevent that that's classic surprise verified complaint says a and there's something in the record i think it's actually from tanner where he says he assaulted and i and he went up and down up and down assaulting people i mean as a certain point you know to protect the people in the prison now as it ended injury matter we're going back and forth whether or not they had the ability to see inside but we have and miss howard says this is inadmissible hearsay we have a direct witness that's that's classic testimony it's not person went after nine inmates and nothing happened knowing that it wasn't in a confined area of one beric you went up and down at one point is are you did intervene i mean you were just in the there's clear or there's clearly evidence that he was he was beating up on the elderly people a diabetic conditions he was joking older men who were defenseless my client and mr chapman were younger but he was he was going after senior citizens and here going up and down the barracks and coming after a so a surprise attack i don't think that's a surprise attack iran or s p some kind of reasonable is reasonable nature to the protection here and i think that's for a trier of fact that the sound again is the point and i was that you know something else but to what extent were these the do this new kind of anybody other to what extent did they view any of this is the evidence all we evening of a and then apparently tanner goes up and then comes back down starts beating up on chapman and chapman says this is what it's what they relied on he looked over and saw the three defendants in the booth looking at those watching on in the fifteen minutes does chapman observe the officers this is of the later stages i think this is the last two victims so he doesn't testify that they saw it from the very beginning he says they saw him that's a good question it  says it says the whole time the quote is the whole time now that's a try or a fact the whole time so that's what he's testified that's why we have cross examination trials so if they want to go after challenge credibility that's for them granted in favor of the defendants in that case that one appeal judge so i would argue that was wrongly decided plus it's a different footing because i think he testified that chapman did in his that he was so it's up to whether or not it was a surprise attack i does there has to be i under what circumstances would and would a spree not be a surprise attack that's my point and you have any cases own similar facts that i do i'm sorry i have this is not my area i stumbled across a case last night and i have a call a west law side i'm not sure i've not been up this court in my short amount of time i want to try to address to mr angel's arguments first that deposition the incomplete deposition that mr angel referenced the trial court  relied on portions of the deposition that the appellants did not rely on that is rather the motion was uncontroverted mr martinez did not respond the district court then relied on skype or shins at the deposition that were inside it which is what the record this court has before it in a complete record that demonstrates that chapman can give no credible admissible not credible excuse me no admissible evidence about what any officer saw on that night and at appendix page one forty two he or look at them as well but the district court actually did rely on mr martinez is verify complaint noting that our objections that we objected to the use of this complaint because the complaint assaulting one inmate the patrick patterson decision included in auburn at a time and complete my thought yes the patrick patterson decision included a fifteen minute incident or this was fifteen seconds and then curry versus chris the court granted qualified immunity when an inmate was murdered in prison during a thirty minute interval and so reading those decisions together the fact that mr martin mr tanner was able to under cover of night very secretly