ok the predominant issue in this appeal relates to the inhumane conditions of confinement claim as i would term it the conditions of mr peterson cell on the morning that he died were described as deplorable filth major edgington head reference that deprived him of basic human dignity and we're talking about feces vomit days worth of food trays conditions that couldn't have existed for twenty four hours been created with food trays certainly but when a person dies they tend excuse sure there's a lot of stuff about feces there's nothing about vomit earlier before that i saw i mean that sort of goes with dying and so the vomiting well your honor to that point there is evidence that earlier in mr peterson's jailing these conditions existed so this wasn't a one time occurrence it happened at multiple points in multiple deputies that indicated that they viewed the cell in the same if not which here the cd which is in black and white is really pretty hard to look at it just looks like it's messy frankly can't really tell beyond that so i so we can use the words from the investigation i get that but if we back off from that it seems like this cell got itself in messy conditions by virtue of your client on a regular basis and the evidence seems to suggest that it was clean now do you have evidence that says that it wasn't cleaned all the evidence of that is according to major edgington if the cell was ever cleaned it would have been logged in the log book that was the jails policy and according to our standard of care expert that is precisely what happens when someone has to clean the condition of you to fact as to whether it was ever clean correct because even though there is testimony that it was it was a lot right that's it i don't mean though those some of those people specifically recall i looked at one here if we logged it every time we wouldn't have had time to do the clean the corporal mcdowell well correct but there are several other statements sergeant reddick for instance when he was asked of this deposition about  claim based on the failure to follow a rule of law game if you have testimony that was clean and you have no controvert testimony that wasn't cleaned aside from the fact that something wasn't logged i just i  have trouble figuring out the basis for these inhumane conditions prior to the ultimate demise of the deceit where we also know that there's one deputy and that's deputy l stretch who admitted that he disregarded the conditions of the cell specifically because mr peterson was mentally ill and there are a couple other deputies who are the police in this case who also admitted to not doing anything about the conditions of mr peterson so i think the seven circuits decision and rice actually provides a for a sound framework for analyzing the issue in this case which is there is no dispute that these conditions in fact existed they existed from time to time now there's a dispute over whether people did something about those conditions and at some times it's admitted that those conditions in fact did exist and were disregarded  you can't possibly bring the conditions and conditions of confinement claim based upon the actions of your client he's there's no dispute he's the one that messed it up well in that claim has to be that they didn't come in and clean it up on a timely basis correct or in the case of seem to say that filthy cells even for for several days don't rise to cats dimensions do you agree with that some of the cases i mean it is the balancing test conditions of the cell that are created in terms of their creation by the end so let me can't create the condition then claim about and then complain about the condition that the if the inmate creates the condition all he can complain about is how long it takes to have somebody else clean it up well yes that's correct if you creates the conditions in the first instance and there's no dispute about that in this case is or no that's correct but that goes into the seven circuits decision and rice which is talking about were these conditions created as a product of mental illness or not but even let's assume that they were created as a condition of mental illness in other words the reason he did what he did inside his cell was because of the mental illness that he had that again that doesn't excuse the fact that he created the condition it just means they got to clean it up worked its character on the how does rice help you on that because i don't think they did clean it up i think there's a question of fact as to whether they cleaned it up or not and how quickly are you saying and how often are you saying that it had to be cleaned up i think there is an a but there isn't one date i mean if we believe what inmate butler says  who submitted declaration and made butler says the cell was filthy the entire time he was there and that he saw it cleaned maybe once and keep in mind there aren't exactly a ton of witnesses around because you're talking about but at least in serious butler says he saw cleaned once how often in these thirty days was butler even on that cell block every day he was there when mr peterson got there and that was he and he he worked every shift for thirty it smelled poorly and then the other basis for his observations is these inmates are let out to go out for rock and such from time to time and there's a common area that's right outside the set of single cells where the inmates are allowed to go into indifference that case involved i think it was around eighteen defendants and it was it was admittedly a smaller jail but here there is evidence just like in that case and in the other cases that we've cited in our brief that these people actually worked around mr peterson they were conducting security checks and there's evidence that these conditions existed for the vast majority of the time that mr peterson was jailed and you say these conditions we do have obviously was even that your prisoner says he was clean once correct we don't know who saw who was there at what time there after mean mcdowell has that perhaps the most testimony that i saw maybe i'm wrong but he had a good bit about when the mattress was torn up and that sort of thing correct correct to get to kind of the first part of what they're of your question your honor targeting how much is too much what i would say in this case is the adjectives i mean it's impossible to put yourself in front of that cell and smell what the people smelled and see what the people saw and as your honor pointed out the photographs aren't quite as district of as some of the language captain chroma with the columbus fire department who regularly makes runs to this jail said it was impossible for them to even attempt a life saving measures in the cell because it the smell was overwhelming and it was in that bad condition with stuff everywhere so in terms of drawing a line i think the line that you know the a police are asking the court to draw here is that the feces has to be caked on to the inmate or something to that effect i don't think from the cases i've seen that that really comports with the why this kind of a judgment call but suffice it to say that when a cell is in such poor conditions that you can't even provide medical treatment in that cell and it's described by their own facility commander who's been in the industry for quite some time is a massive putrid filth that has to cross a line and i think what does the record show as to whether that condition was created by virtue of the circumstances of his death or that condition was was predated one he became in this condition of distress starting at let's say two thirty in the morning right well what we know about the evidence from that is that the cell these conditions were not a one day event right they happened before they happened before he was dying and there's no there's no dispute that they that they occurred because you claim his mental illness caused him to act inappropriately in the right that's our position h now we're trying to figure out how who was there when that should of taken steps to clean that up more quickly than you claim happened and didn't do it and that's where you seem to refer back to phillips  i mean there's just seem to be deliberately indifferent to that condition there has to have been some evidence that they knew of the condition at certain times well if the jails log book they log hourly security checks that's required by ohio's minimum jail standard and again i don't want to equate deliberate indifference with the violation of a policy i think it's relevant in terms of credibility to other issues in terms of whether they follow the policy but the jail log book indicates that these people performed their security checks with these people does that mean all fifty let's say they're fifty four and we subtract the fifty two the two out of that so let's just assume rounded off we're talking about fifty people or that means every one of those fifty people was doing a security check during the time that the cell was messy to be fair yeah thirty two of the people are the florida keys right these are the people who are the guys on the ground who are actually performing the security checks the supervisors were supposed to be performing security checks as well and i believe there are fourteen or so security supervisors who did not perform the security checks if they didn't perform the security checks then what makes them liable for the condition of the cell well i would get into phillips again a little bit on that issue along with rice because rice indicated that even though it came out against us against the plaintiff in that case that because of the nature of the area the nature of the single cell isolation unit where you have highly risk mentally ill inmates and every deputy here admitted that if you don't conduct your rounds are security checks that there is you're running the risk of inmates living in filth potentially dying these are obvious risks in a high risk area of the jail and you're simply not doing your duty that you can still be held liable and that's not even to address the ministerial exception which i think we've briefed and i can see i'm running out of time so unless the court has any more questions i'd ask that the court single six circuit case that employs a ministerial exception other than addressing the peculiarities of kentucky state law you're referring to has path your honor there has not been a recent six circuit decision that's been applied in this context so i don't we spend a lot of time in the ministerial exception to answering the question i'm sorry your honor what's the evidence that major actually was there and saw us aside from the ministerial exception there is no evidence that he directly saw the conditions of mr peterson cell is there any evidence that somebody told them about it there is no evidence aside from the widespread pattern of these people not performing their the widespread pattern of this cell being in a state of frequent filth there is no direct evidence that anyone told him how many people in this jail how many people in the jail total i believe posing counsel be best suited to answer that question for you but we're talking about only the isolation area of the cell that we're only talking about isolation in terms of the the head of the jail is a big jail director on not a little jail like in philips where the end friends when you read the case was that everybody would have known everything going on in this little jail if that's true but we're only talking about one little area of the big jail we're only talking about the isolation cells so in some ways it becomes a line drawing where where does the line get drawn is  drawn it eighteen people where the knowledge can be imputed or is a drawn out fifty two because we're only talking about the people who work in that particular portion of the jail except for edgington except for edgington who did not with the people but scott's above him  something in that yes that comes down to the ministerial exception anything else just thank you you'll have think you're taking time to bottle please the court plaintiffs sued practically every person that worked around mr peterson and a lot of people that didn't with regard to the fifty one defendants in this appeal for one five one over half of them w deposed so plaintiffs basically just have the allegations of their complaint and that's it as to these people i'd like to clear up the record with regard to the dirtiness of mr peterson leave that there's got to be something else in the record that shows that they were even on duty at some point during the time that he was there or just or that they were the i report has a chart that indicates when people worked it's we believe it's accurate with regard to the conditions the conditions the frequency of cleans when mr peterson dirty to sell or all set forth in the apple e's briefing case number four one five one plaintiffs haven't disputed those facts and deputy bishop work twenty days around mr peterson testified that he did cleanings daily that of the entire area in mid august and noticed nothing wrong with the cell you've got a cleaning on august fourteenth by deputy here berlin and deputy would you go to cleaning on august twenty fifth or september second there was also performed by deputy here berlin and deputy hicks those dates you're given are those things that were logged in or is that from their testimony it's from there under their testimony which has not been disputed in any way i would also say this with regard to the i a e a report the i report who could dispute it other than butler's that it's well all the time or perhaps the i a e a investigator who spent six months investigating the matter talked to everyone involved and testified in deposition that he believed cleanings were taking place they just weren't being  degree day he considered that gross i mean look i understand the adjectives sound bad but this court should be concerned with the actual evidence of the conditions in the cell how they became that way in the duration for which they existed and despite plaintiff's attempt to say to generalize the evidence a little bit and expand and say the vast majority of the time mr peterson's cell was dirty the evidence indicates the opposite that when his cell was dirty it was clean it was found on september fourth in a bad way we cannot deny that but as this court already had on mr peterson was dying at that time in that regard with regard to the conditions on september fourth there is an affidavit from deputy benson who did the ending headcount on september third the night before and indicated that he saw no problems with mr peterson defendant doug console mr peterson saw on september second and noticed no problems with that nurse unique with bryant who is not a defendant just a third party nurse who did her segregation around so mr peterson saw on september and didn't notice anything so you know mr peterson unfortunately a mentally ill man trashed his own cell he was responsible for these conditions so i don't even think it implicates cruel and unusual punishment i mean he's not being placed into th s and then kind of left there in these conditions he's creating them in whenever he feels like basically in the deputies have to address them we don't dispute the duty on the part of the jail to to clean it up within a reasonable period of time even though the conditions were created by him absolutely not we don't dispute that your honor he's entitled to a habitable so no dispute you know even sheriff scott in his deposition when shown the pictures from september fourth shook his head and it's in his testimony said you know that's a dirty custom i mean i feel radically that's possible i just don't think there's any evidence for that the policy was daily cleanings there's evidence of daily cleanings there's evidence of additional cleanings an additional in addition to those daily cleanings so i mean again the incident set forth in apple e's brief are accurate as far as when mr peterson saw was dirty and when it was cleaned plaintiff's attempt to expand those by saying hey deputy said this deputy said that they reference the same inciden that apple e's reference but they just don't specify that people were let's say set up the dates like we do so it sort of makes it seem like this vast problem when it's really not are you saying that the can grow it between the two sides is they say it was bad on this day this day this day and you say we claimed it on this day this day this that that's almost your honor they don't even say what days it was battle they just say it was dirty all the time were actually the ones that put evidence in the record of here's the days it happened you know we don't have a burden on summary judgment to disprove every possible hypothetical scenario about when mr peterson dirtied so for how long we produced evidence that cleans took place we produced evidence that additional cleanings to the daily cleanings took place we produced evidence that mr peterson created these conditions it became upon coming upon point is to produce evidence showing an issue of fact the only thing they have is the testimony or if you want to call it that for mr butler that says his cell was dirty all the time it doesn't specify any dates any conditions you know and i don't want to digress too much but i've been to that jail many times you're on your own or it it's not the a great place like a lot of jails it does have an odd smell there's a lot of people living in these cells there's toilets in the isolation cells so there's also other inmates that trace their cells in fact we put evidence on the record that mr butler himself f himself did various things was throwing feces at the window himself so these things do happen there's no duty to prevent these things the best the the duty for the deputies is to address them once they notice them and that's what happened in this case  i'd also like to we've talked a lot about conditions but i'd just like to know one other that these fifty one people were also sued for medical claims there's been no dispute about the extensive medical attention mr peterson received throughout his trip state he was seen once every two and a half days by a nurse or a doctor he was seen a dozen times by a nurse he was put on three day ten minute observation for the first first three days he was in jail he was seen by three different psychometrist so any argument that somehow these deputies are responsible or responsible for some sort of deliberate indifference as it relates to medical care is just not supported by the record in any way you read that to be would in their appeal  i'm tempted to say no because my view of this case has always been the plaintiffs have kind of conflated these conditions with the medical claims oh his cell was so nasty you had to know something was medically wrong with the guy i guess to directly answer your honor maybe yes i do think that's there a little bit but they don't dispute the medical care at all and so despite sort of saying in a general sense these defendants failed something related to mr peterson's medical care i don't think it's supported in any way in this case and i don't think they really sorted properly on appeal i would also say that the i a e a investigation the fact that these defendants were involved in an internal in fair's of this investigation alone has has nothing to do with deliberate indifference this court has hit on it with the individual lies inquiry what did these people see observe what did they know about what did they ignore if anything the i investigat had nothing to do with medical care lieutenant the rico testified that cleans took place they just weren't lot his main gripe lieutenant the ricos was the manner in which people perform the rounds i don't want to misstate but i thought i heard plain as c say people weren't doing their rounds that's not what we tended to rico says he took issue with whether some people not all of them were going in the common area for the rounds nothing more so decided to try to say that no one was doing their job for the entire month m peterson was a f c c c two is it's nonsense that's just not true a big jail it's around average daily around twelve hundred and it can be more depending on what's going on with regard to these isolation cells counsel says well these are isolation cells there's actually a vestibule that's between two areas one side is eight or ten isolation cells with one inmate apiece the other side is a dorm isolation unit with twenty five or thirty guys the deputies that are at these posts are responsible for multiple range so that's just one area that they would be responsible for i don't so like to briefly touch on supervisory liability i think this court already hit it there's no response yet superior liability under the constitution you can't say you were the supervisor on duty at this time therefore you there's an issue as to you they have to knowingly participate acquiesce in it have knowledge that something's wrong the only supervisors where there's evidence that they noticed something wrong with mr peterson cell or corpora and corporal johnson who were all present on august twenty seventh when the cell was cleaned and that's another problem i've had with this there's been no delineation by the plaintiffs between defendants they think ignore a sell condition and defendants who actually noticed it and cleaned it and i think without that evidence their claims fail they can't just point to the conditions themself and say those conditions were bad they existed on x day or y day therefore their statement about the twenty seventh  me as though there's two declarations one of which was submitted are dated as of february of two thousand and fourteen the second one which is just hand written was july fourteenth what rounds were being done or what was happening with mr peterson on a larger scale there was no there's no evidence that mr edgington was aware of any kind of problem beyond mr peterson that was going on with rounds not being done for so conditions not being cleaned so you know this is the standard here is you know based on his knowledge and there's just no evidence that he was aware of any problem in ten is over the whole twelve hundred perse know he's the jail commander but his testimony is that he basically is the head administrator he has no day to day duties to even inspect and i'm sure it's good practice for him to walk around for morale but there's no requirement that he he go around and inspect any particular portion of jail on any particular routine actually he covers things as much as you know p r liaison with the with the sheriff which is in a separate place you know personnel decisions staffing decisions budgeting he is a true administrator if i understand counsel's comments correctly basically it's conceded there is no evidence about mr peterson's knowledge and they've thrown everything onto this ministerial duty idea i agree with you judge mckeague this is kind of a head scratcher for me when this came up i do a fair amount of qualified community work and i had not run into this i found nothing the six circuit that would apply this and the cases they cite for the ministerial duty are based on state law i think there's a couple of them hedge past it's kentucky and i think there's another one that's based on state law i would say on the case that they do say it's home an extra home and versus haro and their own case  this strict the real standard for ministry of duty is whether the governmental employee was performing a legitimate job function through means within his power to utilize so basically it's whether he was doing his job so even if this were to apply it wouldn't it wouldn't change the outcome for mr edgington and i actually also point out that the judge frost found that there was no constitutional violation this is an exception purportedly to qualified immunity which he didn't get to he said there's no constitutional violation on behalf of edging to a lot of other people so that too would say that mr liddy if there was this if this did apply wouldn't point here so i see i you opposing counsel did reference the size of this particular part of the jail you're only talking about roughly thirty to thirty five inmates in this isolation portion of the channel these individual deputies these florida please work in that particular part of the channel we're not talking about the the whole twelve hundred prisoner system in franklin county we're talking about one particular portion of the jail each of these fifty people work only or predominantly in this unit they worked in this unit that's correct during that time period so they only only i can't tell you that with precision but when they work there most of these people work on multiple days in this unit over that you have the log sheets or whatever the tellers who worked which day which is in the b report correct your honor are you bringing a medical care medical care claim against any of these defendants i think yes is the short answer is that due to your eyes the duty arises because in this case i know we talked about what acute means in the prior appeal  we talked about how this guy was seen by a doctor every doctor and nurse every two days what additional duty medically wise and let's carve out the five hours proceeding his death do these anything what does that mean he didn't get it mr peterson never had a physical he never had in fact one was scheduled finally shortly before he died after he had been gaylor are responsible for him not being written up for a physical by the medical people there the intermediaries that need to get and that apples are attention to get them involved no they're not responsible for get not giving him a physical what what medical care what did he need did he fail to receive for which any of the jailers are responsible for the jailers were not responsible for providing him with medical care there only do just told me that there is a medical care claim you're making against the jailers  their only duty was to get the medical care for where they did so that is i've seen a bunch of these cases were your logic has some import which is the doctor never sees the guy the jailer is supposed to see that he's got a problem and refer him to the doctor but here the doctors see him every two or three days so what could they have done any more or they would have said hey you should see the doctor guy says i saw him one tuesday i'm going to see him on friday yes the only answer to that is to keep getting medical attention for him and raise what they're viewing what the symptoms of what additional medical care did he require that the jailers are responsible for him not having received tell me tell me what care and when that he that he was do it and didn't get it when they noticed him gaining weight which would have been at some point obviously in need butler says th right there ok so these medical people see him every two or three days and they don't notice a condition that ends up having been caused by this congestive heart failure so you're saying that the jailers were responsible for for not noticing and acting upon a condition that the medical people would have also seen for thirty days and didn't and didn't doing about well they didn't see him all the time obviously they saw him every few days so that doesn't help your argument understood so you have any authority for the for an argument of this type whatsoever that the jailers are responsible for noticing and acting upon a condition that the medical people didn't notice and act upon a case even remotely similar to this only the acute medical illness case not nothing specifically involving  the where medical stuff was involved so it has to come down to his final five hours basically with medical care yes and the only people that saw him are the two that were not given qualified i