and we now turn to the case of burnham versus smith her argument good morning your honor so may please the court daniel inglis say on behalf of the appellant kenneth burnham i like to reserve about six minutes of time for rebuttal and your honors the district court committed to separate and distinct errors of law in this case st with respect to mr burnham's claim for excessive use of force the district court took it as undisputed that burnham had refused to hand the officers his shirt which they claimed he was attempting to use the ligature the district court based on that ruled that it was reasonable for the officers to enter burnham cell tackle him and restrain him had the district court allowed the entire excessive use of force claim to be tried to the jury the outcome could have been very different and nd with respect to mr burnham's deliberate indifference claim mr burnham presented a wealth of evidence at trial that the prisons food services administrator frank jacobs had witnessed a food service a staffer named carl evans engaging in inappropriate sexual harassment and sexual abuse of inmates despite the similarity of this evidence to the evidence that was presented on summary judgment the court granted a rule fifty motion in favor of mr jacobs apparently because the court believe that mr jacobs had not witnessed an amendment violation which is the incorrect standard and that mr burnham can show no more than negligence this was also error i'd like to begin by starting with the excessive use of force claim as we know the excessive use of force claim is governed by the hudson factors looks at the extent of the injury the need for force the relationship between the need for force and the amount of force used the threat perceived by the officers and efforts to temper the severity of force and the last four of these factors were all disputed on summary judgment it's undisputed that burnam did make some suicidal indication to a staff psychologist and that that staff psychologist then asked for help from correctional officers however burnham claims that those officers began immediately yelling at him screaming profanities at him upon arriving at the cell when burnham had seated himself with his shirt in his lap all of the officers testified that they had witnessed burnam wrapping his shirt around his neck but burnham claimed that he had never done so and most importantly all of the officers testified that they had issued a direct order that burnam hand his shirt over when in fact burnham in his affidavit in support of summary judgment said he was never given an opportunity to admits that he made some kind of an indication or a gesture i don't believe that he ever admitted he actually tied the shirt or attempted to use it as a ligature he also disputes even though this cell was as not suicide resistant he disputes that you could fit the shirt through the what he referred to as the waffle great in the record and looking at the waffle grade it certainly would have been reasonable for a jury to say you know if you if you look at this you could not possibly take that t shirt and tie it through that great and it's a cell there's a picture of the cell in the record and it's a cell no larger than a telephone booth there's really not much harm that burnam could have caused to himself and especially not to other inmates or to these officers there were alternatives available that these officers simply chose not to engage with and address you know to believe burnham's version of events burnham was nothing more than a difficult inmate he he did not pose a danger to himself or to others by the time that the officers arrived arrived on the scene and district courts in this circuit have held that when an inmate engages in backtalk especially when the inmate is already secured or restrained  or is otherwise unable to pose a threat to the officers there's at least a jury question as to whether the use of force is necessary so here he wasn't in handcuffs right he was in a cell but he wasn't really restrained additionally him out but i had trouble finding a case that said that a prisoner who is not additionally restrained and is engaging and that verbal assaults can't be further constrained with force so i am a little worried that i mean even if you have these factors buttes that at least as to the qualified immunity issue he may have trouble getting past the some use of force at the beginning of this incident sure your honor and  me that was that posed longstanding well known suicidal concerns to the officers that were there and that inmate had actually been placed on a suicide watch and had assaulted an officer i believe during that suicide watch but i think it's your burden to show that there is case law that clearly establishes that the officers knew or should have known that an inmate who had allegedly just done something suicidal and now is yelling and isn't restrained can't be further restrained w force i understand that your honor but i don't think qualified immunity demands a case that's that's precisely on on all fours i don't think this court has ever required that and i think it really comes from the th amendment context where they are if there's no need for at all than anything for some use design reasonable and i think that when if burglars version of events is to be believed he doesn't pose a threat by the time the officers show up and his renewed agitation is that the way he's being treated by the officers it's no longer a suicidal ideation he sort of centrally his claim is if these officers slowed their role and not been so intent on coming in to myself restraining me stated the court found that the the evidence on summary judgment was sufficient to defeat was sufficient to defeat jacob's motion for summary judgment but that's in tension with its ruling on the rule fifty motion the evidence presented on summary judgment is staggeringly similar to what was presented at trial there were five evidence that five inmates that submitted affidavits on summary judgment three of them testified at trial and the two who didn't their testimony was was basically cumulative the inmates that testif trial established a pattern that jacobs did not stop mr evans from being quote playful with inmates he had an inmate that everybody referred to as his boyfriend and most importantly burnham testified and other inmates corroborated that evans had groped burnham in his presence and had one just touched burnham's private parts with such force that it caused burnham to drop a plate of food that he was holding despite this during the rule fifty colloquy the court seemed far more focused on whether jacobs could have viewed the actual rape from his office the rape took place in the warehouse but burnham never alleged that jacobs witnessed the actual rape and the court also focused on whether jacobs had actually observed an th amendment violation so so if we assume that the district court made a mistake here and the facts i would have supported an th amendment violation you still have to show that a bit of the remedy is available and that there's not qualified immunity so it seems like it least for my purposes i'd be interested in those legal questions sure your honor with respect to qualified immunity which which i think is the simpler of the two questions that goes to the case from two thousand from this court which said that in the simplest and most absolute of terms inmates have a right to be free from sexual harassment and sexual abuse and if you pair the shrink case with the board of people clare case which said that even one instance of groping an inmate depending on the circumstances can constitute actionable sexual assault i think any reasonable prison administrator assuming all of burnham's facts are true that he did that jacobs did witness evan were any of these cases about a supervisor protecting from an employee your honor none none of the case law that i've seen was about a supervisor protecting an inmate from an employee but if you draw the analogy to the the carlson and its progeny that that's obviously protection from prison employees it's not just protection supervisory liability i think such a claim is very clearly permitted under karlsson and is the essence of carlson which is even if you are not the person who is the doctor operating on the inmate or the author or the officer who is using bassy as another business claim that the supreme court has signed off on i think it would be an enormous step backwards for this court to say that a farmer style claim is no longer valid and if the farmer style claim remains valid it's difficult to see how this sort of claim is not if jacobs had witnessed an excessive use of force incident and that he had every opportunity to stop and did not i think that farmer would be a good analog for general the availability of a claim against the actual rapist employee as a nother remedy when we think about the supervisor do you think there really separate i think i am interested to hear republican sponsored view on that question  seem to take it as a given they don't make as it would be a bassy argument as to excessive use of force i think that it is an excessive use of force claim remains valid under sigler and that seems to be the agreement of the parties it's hard to see how sexual assault by a prison official does not remain valid and if sexual assault by a prison official remains valid i know we're getting into layers here but it's hard to see how a carlston sile claim of deliberate indifference case i don't and i'm not completely familiar with all the remedies that are available to inmates however if you look at the carlson case carlson and the legislative history of the federal tort claims act make it clear that the also saw that the deterrent effect of declaring you violated my constitutional rights and being able to get that declaration in court is far different than being able to get a declaration of negligence i see that my my that i don't believe that monetary damages are available through the administrative remedies program and something that the respondents brief talks about is the availability of injunctive relief and other sort of policy shaping relief through the administrative remedies program but i would again point this court back to lynn news which says that you know a straightforward case against a low level officer for past conduct really can't be addressed very well through that administrative remedies program there are remedies available but they fall far short of the complete remedy that's afforded by did ins i see that i have about three minutes left in that i'd like to reserve that time  good morning and may it please the court christina morrison appearing on behalf of the applebee's i'd like to just start very briefly on the use of force issue and then move the use my remaining time to the fair to protect claim to answer judge  question mr burnham actually testified that at the time the cell door was opening he was standing and holding the shirt and he was not handcuffed and with respect to whether or not an order was given fred marino testified that he heard as as did frank are meant that he heard officer rico give an order to hand over the shirt and mr burnham himself testified that he did not recall what rico said but he the officers they intervene to save his life and they are entitled to qualified immunity turning to the failure to protect a claim against frank jacobs i'd like to start with the  what was clearly established the law that was clearly established as the time at the time of the constitute alleged constitutional about a violation which was the april two thousand and twelve rate at that time even if we assume that the alleged complaints and alleged activity that jacob was present at was seen and heard at most we're dealing with the groping of the buttocks of an inmate on the outside of his clothing groping the testimony is clear he was talking to another inmate immediately before that namely adams and that when the pan drops he turned and saw the pan drop and laughed that can only stablish presence it does not establish violation what was clearly established at that time the waterson case is was issued in february two thousand and twelve right before the alleged rape watterson rejected the claim that  inmates buttocks and noted that it would be a distortion to characterize that as sexual abuse and that this waterson court agreed that it was not objectively serious to rise to the level of an th amendment violation on that basis the clearly established law was that even if there was evidence suggesting that groping was going on that that constitutes an th amendment violation therefore mr jacobs is entitled to qualified immunity and i would also note that shrink and farmer dealt with instances of the rape or attempted rape or actual rape that's what constitutes a serious enough behavior to warrant remedy and because the level complaint the conduct complained of does not rise to that level qualified immunity is warranted here i'd also like  so the administrators remedies are available there's a grievance process there are not monetary remedies available and based on the prison reform prison litigation reform act and prayer but congress states and that claim was dismissed without prejudice and he failed to him and or or further pursue that but that is an alternative remedy available to him another critical reason why the granting of the rule fifty motion was correct because plaintiff did not provide sufficient evidence as to causation he needs to have shown that jacob's acts remissions were so closely related to the deprivation that jacobs was the moving force that caused the deprivation and we are talking about an april two thousand and twelve rape our position is that the record is devoid of any evidence to show that frank jacobs c specifically mr jacobs reported that had he known had he actually drawn the inference his responsibility in what he would do is report it to a special investigative services and then he would be expected to sit on the sidelines while s i s handled that john feeney also testified he was the head of the us division and he went into great detail about the process that comes into play when there's a report that it cannot automatically remove a employee from his position that frank jacobs there was no evidence in the record that frank jacobs could have automatically removed any employee or even transferred him from his position and that they needed to take time to verify the reports bring in the f b i and based on having trouble understanding how this how this could be right though i mean we have farmer which is a b claim for not protecting a prisoner against sexual assault i think our court actually has another case gillespie that i don't think was mentioned in the briefs from nine hundred and eighty that's also a bit of in this case about not protecting a prisoner from sexual assault it seems like if there's an th amendment obligation to protect prisoners from sexual assault it can't be a defense that we've set up our administrative procedures to make it impossible to protect someone i mean that's that's up to the prison right whether they can move an employee or whether they can move a prisoner i mean if they have an obligation to protect how could how can you say it takes months to to do anything in our prison and so we don't have an obligation so obviously with respect to a negligence claim the institution that that could have been a question that was put forth it wasn't pla this case but we're talking about frank jacobs what was his responsibility nothing in the record supports a finding that he could have automatically removed mr evans and john feeney testified he received a far more specific complaint that did state an th amendment violation that carl levin's was having sex with inmates in exchange for contraband it took him three months before they could remove him from his position and carl levin's remained in the food service department but i mean that's the prisons fault like i don't understand it doesn't seem like you can just say well we make it impossible to transfer anyone an employee or anyone so too bad prisoners you have no constitutional rights that doesn't make sense we're respectfully we have to focus on what it's not the prisons fault the prison isn't hasn't been dragged through this litigation frank jacobs has he did not have the authority to remove anybody from their position john feeney specifically testify he was expected to once he was aware that an investigation was underway to sit on the sidelines and let the entity that was responsible for investigating do with take its course and during that time jacobs could not have removed him at all the only evidence in the record is that had he drawn an inference had jacobs known was to reported to us i os that is the only evidence in the record that's available but ok so maybe that i that seems kind of incredible but putting aside whether he knew that rape was going on are you saying that when he's observing grabbing buttocks he has no ability to move jacobs to the paperwork instead i mean i never have and i'm sorry move evidence of doing paperwork instead of being there with the prisoners or do some kind of supervisory rearrangement the only evidence in the record and this was john feeney and frank jacobs stated was if he had upset st of all there's no  anywhere that he observed knew anybody was going to rape anybody but with respect to groping there's no the only thing his only thing is to report it because it's a responsibility to handle those reports  and even if he said stop it he still would have had the responsibility to report it as i asked and that's what would have have failure to do that once you know and prevent that that would somehow provide a link that he was a moving force that caused the deprivation i find it hard to believe that the supervisor who rises and an employee not to do something the employee continues doing it is powerless to do anything about it  me i'm not your arm i want telling us what his responsibility was what he was like i'm not talking about responsibility i'm talking about power his power was to report it and that was it your position that government's position is the supervisor can do nothing about the evidence other than t since there's a union contracts that are involved and there's due process to that particular so what if what if jacobs saw evidence poisoning the food i mean literally he's in a kitchen what if what if he sees poisoning the food are you saying the only thing he can do is report it to an investigation it's going to take three months while he should remove the poison to keep the poisoned food from going out as well but in terms of what carl evan status  that and then maybe i can segue to the next part of my argument which is there is insufficient evidence to show he perceived anything with respect to the behavior that was complained of st of all there was some testimony that there was groping going on out in the kitchen when mr jacobs was in his office that can establish presence not perception particularly since mr burnham himself testified that when you're out on the floor you cannot see in through the windows of the office it's essentially a one way view or staff can see out but others can't see and so that does not establish perception but but the staff can see out so i mean isn't there a fact dispute about whether he could see this there isn't based on the testimony that was provided so for instance in the february two thousand and twelve incident mr burnham claimed that evans touched his lower side in a sexual manner and when asked why that was sexual he said because men don't typically touch other men there were in a federal prison pat downs occur but even if that somehow could rise to the level of an th amendment violation burn only testify that jacobs was standing near and there was no response from jacobs inferring that even most favorably to the plaintiff nothing suggests perception that jacobs saw and that's the nd part of farmer that's critical here in order he needs to realize there's a risk but he doesn't need to see the rape he just needs to know that there's a risk of the rape right absolutely but there has to be a risk based on behavior that rises to that level and we've talked about what was clearly established at the time of april two thousand i think you are saying based on conduct that rises to that level it sounds like you're begging the question again i mean are you saying he needs to have seen a rape to expect a rape not rape but more than groping of the buttocks we w submit however even if this court disagrees with me what was testified to was only presence not perception so again for the five pat jacobs was quote standing near and gave no reaction that doesn't no one can infer he perceived anything the piano drive how is that not a jury question because no one knows what he perceived other than him but they can say well he was there he was in a room with a window with he could see she saw various things he laughed i mean isn't that enough to create a jury question it's not because the plaintiff provided no evidence of perception but how does anyone ever i mean i mean yes if he did respond then we know but that means that you get out of the violation by doing even less i don't understand how that could be what creates a jury question or not the evidence on the record is an absence of testimony from the plaintiff and it was his burden and mr jacobs testifying he never saw anything he did not know he did not perceive there is no question of fact if there had been testimony that evans was speaking while this happened and jacob's was nearby evans responded immediately afterwards jacob said something that shows perception it's not the question of fact that we seem to be coming back to is was there facts indicating something was afoot but that's only half a farmer we need more we need perception on the part on the part of jacobs and with where it is wise counsel that the perception is from jacobs we have no comments from evans the only thing we have are again you know present standing near he didn't respond with the pan dropping we maintain you know we have to take what evidence was would have gone to the jury and if there's no testimony from any of the inmates that that establishes or even hints that jacobs perceived it walking away when something's happening is not sufficient  talking to another inmate and having your draw your attention directed there and then having your attention drawn to pan drops is not sufficient it's scarce if anything and then the only other thing that we are is you know for instance mr burnham's verbal complaint with respect to walking into mr jacobs office complaining about the hours of his apprenticeship program and indicating that  doesn't he didn't come to food service to learn about the homo sexual stuff or sexual harassment and again we don't even have perception there st of all it doesn't mention a staff member does not mention evans at all or sexual abuse and mr burnham can't testify to jacob's perception because he turned and walked away before anything else and mr and so when you say there is no perception you're not denying that he saw grabbing of buttocks are you evans would grab jerseys but and jacobs was present yes and what if anything to do and then he says he would just shake his head or say cut it out so when we get to the specific i have five hundred and eighty five and five hundred and eighty three he was specifically asked what jacobs did and he said jacobs turned and walked away while on page five hundred and eighty four he says jacobs would just shake his head or say or say cut it out and if and assuming that that taking that is true for the purposes of the rule fifty motion i would refer back to what law was clearly established at most we have an isolated incident of a grabbing of the buttocks it does not rise to the level of anything mehmet violation as to the i may put briefly respond to i would say that at most if the considering that most favorably at most he groped he saw an isolated instance of groping of the buttocks which your honors i have just a few comments in rebuttal with respect of the deliberate indifference claim i think the use of force claim at this point it seems like everything that's needed to be said has been said so there are no questions there if this court looks at the farmer case it's whether the supervisor knows of and disregards and excessive risk to inmate health and safety and an inference from circumstances has always been permissible it was from permissible explicitly in farmer it remains permissible today and the supervisor does not need to know of a of a risk that is particular to this inmate the supervisor does not need to be able to predict with certainty the particular circumstances of the th amendment violation or even the the dangerous condition that is going to befall the inmate they just need to see an obvious substantial risk and here we have testimony from these inmates adam's testimony adams testified that there were so many instances that he could not even begin to recount or estimate the number of times that something had happened with evans they all testified that this was a pervasive and just daily part of being on this food services shift and perhaps most importantly friedland you're you're right there is testimony that jacobs told evans to cut it out or knock it off and that came from multiple inmates and also there was evidence that he referred to another inmate as evans's boyfriend or boy toy that he use brief is a red herring that there was enough evidence just as there was on summary judgment that jacobs was more than presence that presence that he perceived the risk that he drew the inference and should have gone and continue to respond to this argument that  jacobs had no ability to do anything about evan thank you your honor i find that argument curious because if burnham had tried to sue somebody higher up the fuel tank food chain than jacobs almost certainly the government's argument would be th doesn't allow that claim because now you're getting too far up the supervisory chain and that's exactly the type of david's action that ziegler i think is pointed at these these far reaching more policy type somebody at the warden's office or higher up in prison in ministration should have done something this was the guy who was on the line he testified that he interacted with evans every single day and that's exactly like the government officials and carlson who were fully apprised of a dangerous condition and chose not to do anything about it i think that if the evidence on summary judgment was good enough to take us to a trial then certainly the evidence at trial was good enough to go to the jury and if there are no further questions on this one question of the