our next case for argument this morning wins for lawsky against milwaukee county defendants and police motion for summary judgment this case was originally brought pursuant to forty two u s c section one thousand nine hundred three against walker county and individual defendants employed by the county due to the in custody death of ski from a fatal methadone orthe overdose which occurred on november twenty second two thousand and seven this appeal focuses on both alex while ski's a state's eighth amendment claim for the failure to provide medical attention and gary lost his claim the loss of familiar relationship society and companionship of a son alex as to the eighth amendment failure to provide medical attention claim construing the facts in the light most favorable to the pla believe the facts show that alex or laos he had an objective lee serious medical condition a methadone overdose and the district court agreed with the facts supported in that terminations this was shown by the factual allegations that alex  due to the failure of the defendants to provide appropriate and timely medical care and that both the plaintiff and defendant medical experts agree that if he would have been given appropriate medical care during the two and a half hours or so prior to him being found unresponsive that alex would have lived and likely had a complete and uncomplicated recovery from that methadone overdose it is also our contention that both the direct evidence and circumstantial evidence prove that the defendants knew of but disregarded a substantial risk of harm to alex by not providing him with necessary medical attention and care and it is our contention that effect finder could conclude that the risk of harm was obvious the risk of harm in this case was not getting alex the medical care which was shown to have been necessary to prevent his death for a constitutional right to be clearly established as the court is aware no controlling case with matching facts if necessary on the other hand appearing to be not breathing at times and being unable to be awake his decision when it stated quote the facts here are more strongly weighted in favor granting summary judgment in favor of the defendants and quote we contend that the district court did not construe the facts in the light most favorable to the nonmoving party the pla but instead improperly weighed the evidence they failed to consider some evidence and it made increases drawn from certain facts which are weighed in favor of the defendants apple e's but also disregarded that there were issues of material fact which should have p we knew what those inmates were going to say obviously if the case of proceed to trial and if we certainly go to trial they will provide some significant additional testimony but we felt in response to what we anticipated were going to be motions in this case that we needed to address the facts that we felt would preclude summary judgment we think again the information was provided by those by those inmates indeed supports that district court incorrectly concluded after the evidence was provided that the defendant did not know of and did not disregard a substantial risk of harm to alex's health now as far as the direct evidence of actual knowledge of the substantial risk of harm we believe it can be shown if the circumstances suggest as the court is aware of the circumstances suggest the official has been exposed to information concerning the risk and must and then and thus must have known about the plaintiff's appellants content in this case that the defendants had actual knowledge of but disregarded the substantial risk of harm by for example correctional officer alexander's contemporaneous admissions in the log book that alex quote was not breathing at times end quote and that quote he had a severe sleeping disorder o alexander's testimony that it seemed to him like alex had a time stop breathing so you alexander's admission that he could not wake up alex after several attempts and he did not know the reason why he did not wake up in may twice having or twice having told c e o alan xander that something was wrong with alex when he would not wake up for both his kitchen duty as well as for breakfast and no contemporaneous or before death evidence that alex was snoring at all or had any sleep apnea symptoms this is important and why the county's thirty six designee indicated in her testimony that a policy existed that if things are not recorded it was the county's position they did not happen for this exact reason that we have here these after  snoring in the log book and the his claims that alex had been starmer only again after the fact you alexander's attempts to wake up alex were indeed due to his concerns about his health and his acknowledged inability to wake him up supports the knowledge that alexander knew policy that correctional officer correctional officers were to monitor inmates they were indeed to watch for any drug use and indeed that is what happened here and again the fact that c e o alexander makes the notes and goes to the point of calling his supervisor reflects the fact that he obviously felt there was something significantly going on but on fortune no one did anything further in regard to see a man's again the supervisor he claims that he was not to breathing and that is not supported by other information that he claims alexander did tell him also reflected in the log book as well as the old man's testimony that if he had been told that alex had stopped breathing he would have called for a medical emergency while alexander analysis was provided however it can be shown we believe by the fact again that the logbook entries reflect alex's lack of breathing at times c o alexander's inability to wake up alex again with no known cause and the statements by  alexander that indeed something was wrong with alex they indeed had had the experience of dealing with him with him for some period of time and they were concerned enough to indeed inform the correctional officer and one even got to the point because of his interactions and continuously telling the corrections officer there was a problem he actually was put in the hole as indicated also the district court appears to have disregarded that there were a number of issues of material fact which precluded its granting summary judgment for the defendants in this analysis and again some of those are the dispute between defendant's alexander and man's about alex alleged snoring or man's testified he was told that alex soring was bothering other inmates however alexander again the correctional officer on duty justified that no other inmates were complaining about what story there was indeed the dispute between alexander's testimony that inmates told him that alex had breathed the way that way all the time as opposed to the inmate statement that alex sleeps that way all the time and the district court used that when it weighed alexander's testimony by relying on supervisor erdman when she came into the dorm those observations by her work for thirty five in the morning when she toured the dorm although the evidence would show that the statements that were made by the inmates were much earlier that was at four o'clock in the morning when they were going to the kitchen duty assignment and then also there's a dispute that alexander noted the log book that alice was not breathing at times but man's testimony said that he was never told that information and that had he been told that information he would have called for a medical emergency we believe there's also errors by the district court in that the court disregarded certain things such as inmate said the defendant alexander knocked on alex b three twenty times with this flashlight but the district court only noted that alexander said that shook alex a bit and called called his name there was a failure to note the disputed issue of material fact between alexander's claims that alex did not have to get up for kitchen duty as opposed to the county's own policy that inmates had work assignments they were required to appear at which were mandatory as well as failing to note the disputed issue of fact between alexander's claims that attending breakfast for alex and other inmates was not required however the county's own policy was the designee that we believe actually testified that if a correctional officer could not wake up an inmate without knowing the reason why then that would be a medical emergency but indeed the district court did not refer to those facts and again we believe that that support our position that there was at least a material dispute is there any evidence in the record that c e o alexander actually drew the end friends from the facts before him that or allow ski was suffering a an extremely serious and potentially fatal medical condition but i think one thing your honor is the fact that he actually called the supervisor you know he indicates that snoring is a common phenomenon in prisons the fact that he called his supervisor and then specifically wrote in the logbook which is unusual to about an inmate who was just snoring it shows that he felt because he noted indeed that he was not breathing at times and that he had that sleep disorder i believe it shows at least by way of circumstantial evidence if not by direct evidence that he was concerned enough and felt that there was some type of medical condition going on that he felt that he should at least contact a supervisor now nothing was done after that and again and nothing or did he well he indicates that he in a security checks went back in there was really nothing different so by implication he indicated and he was asked and he provided his testimony that it wasn't seeming to be any better didn't seem to be any different and so there was this ongoing concern that it would appear that he had noted at least at four o'clock in the morning the didn't seem to dissipate which we think was obvious enough to show that the correction officer should have felt that there was something more to do and indeed that alex was suffering from significant substantial medical concern indeed and that was the risk that it seems as though he realized but didn't seem to do anything more about it and again if he had done something more if you'd call for that medical emergency if he had indicated that something more needed to be done to be called a supervisor again maybe that indeed would have left something different to occur but that shows again the total disregard of that significant medical need in this case if we're in a should have situation tha alexander wins if we're not alexander knew and did nothing about it then or allow ski wins why i i think this is really close and i'm wondering if you have a situation where it's not entirely clear that alexander knew that or allow ski was in a situation where he was about to expire and alexander was concerned enough that he would check parry adequately doesn't that indicate to you that alexander knew th there was a potential issue but did not appreciate it seriousness and he should have appreciated it seriousness but he didn't but i think you would hear that from counsel on behalf of the county as they try to construe the facts in in an indeed that way or maybe even stronger i think that shows if nothing else that there is a material issue affect in this case i believe that the evidence supports the fact that alexander knew that there was a concern knew that there was a problem knew that he had a serious medical need and did nothing about it at the very least if he did something it was only calling his supervisor the fact that he went back in those security checks those are required but he didn't do anything further even though it shows that as he indicated  testimony that there was really no changes condition and that indeed alexander alex lauriski was extol exhibiting the same types of issues that he was having before as far as the often periods of not breathing at all and the severe sleep disorder i see my corrections officers alexander and man's are entitle to qualify immunity given the holdings of three supreme court cases return term the mula next case taylor case in the she and case under the holdings of those three cases the plaintiffs have the burden of showing that every reasonable officer established that an inmate has a right to receive medical care for an objectively serious condition such as not breathing your honor given the whole beans of the recent story supreme court cases  repeatedly says something is wrong and alexander tries to wake him up shakes his body calls his name he doesn't wake up he shines as flashlight in his face he knocks on the bunk twenty times i mean appear only in statements and aren't sworn statements are you referring to the police report that's cursus the affidavit that's correct so that would be one of your positions at the affidavit should have been submitted rather than really hands on the only one of my positions my first position is it is not clear beyond debate that officers in this situation would have known that they finally do you a clearly established constitutional right you referred to mr alexander's testimony he testified that he couldn't wait mister up but that when he shook him right was being violated and these very same facts go to the merits of whether a reasonable jury could find that these officers were recklessly and different to a clear medical need first of all these two officers undisputed had no experience with this particular prisoner they came onto their shift in the early morning hours the prisoners were all asleep in their dorms these officers didn't know anything about mr orlowski is history number two mr or allow ski was never previously diagnosed with a clear medical need for anything he wasn't diagnosed with with anything  think it is worth noting that while drug overdoses in jails and prisons aren't entirely on the heard of they are uncommon in irregular events on the other hand prisoners snoring loudly in bothering other prisoners is a very common of i believe there is compelling evidence that mr alexander was hit in the log he says he appears to have a severe sleeping disorder he appears not to be breathing and he makes a lot of noise while trying to breathe and or when he is in the it appears to have a lot of difficulty sleeping in your view that's not enough that's that's not enough your honor in the context of this case after writing those words alexander called his supervisor man and discussed the situation and they came up with a perfectly sensible plan mans told alexander when alexander wakes up at an appropriate time ask him if he is aware that he is snoring and he is aware of the way he is sleeping bet's a perfectly reasonable conclusion in a perfectly reasonable plan and i would note that it is also significant bit later in the shift the highest ranking officer in the institution officer earthman was walking through the dorm saw this entry in the log an earthman in alexander then went to the bunker and observed or allow ski and they both testified that at that point in time he was breathing normally all three of these officers looked at the facts in all three officers came to the  conclusion now in order to deny these officers qualified immunity this court has to hold that there was a clearly established constitutional right that would have been known to every officer when a prisoner is snow or snoring with no past history of a diagnosed medical condition that the constitution requires the officers to call for medical emergencies but we didn't have just snoring care we had a situation where the officer vigorously try to wake up an inmate and the inmate didn't wake up in the office or didn't know why and the inmate just kept sleeping well i would take issue with that characterization the hit the bunk with the flashlight calls from an unsworn statement in a police  consistent with an officer observing a prisoner who is snoring very loudly the officer is concerned he logs it appropriately and the sergeant reviews the situation in the highest ranking officer where he has the situation and they all come to the same conclusion that they're dealing with a prisoner who has a sleep disorder and they're going to address it by discussing it with the prisoner when he wakes up well let's say you're right that the only admissible evidence is that the correctional officer shook or allow ski tried to wake him up couldn't wake him up and didn't know why this is a prison inmates have to do what correctional officers tell them to do so mr alaska would be incented to follow those rules and would know that if he didn't follow those rules and do what the c e o told him to do he could be punished it isn't like a parent who tries to wake up a teenager and the teenager sadly ignores the parent and then suffers no consequences  so doesn't the fact that alexander couldn't wake up or allow ski and didn't and alexander didn't know why is not enough for the white ball to have gone off and and alexander to realize we have something more serious here than a snore yeah absolutely not your honor sal sleeping is not unusual at all and is a matter of fact that premis is contained in your question  those of us but it was more it says in also to be not everything at times yes in the deposition testimony was he would stop breathing followed by a gas and he would start to breathe again that's it regular breathing that is not evidence that someone has a serious medical condition that requires a medical emergency and that's the conclusion that was made by three officers and so this business of knocking on the metal box twenty times and get no response was not a red clay runner and we're not sure that even happened but if it did happen i would submit that that is simply evidence of a very sound sleeper or perhaps someone who does not like the teenage  child in the court suggestion doesn't want to be woken up while i was making a distinction between a teenager who doesn't want to be woken up who doesn't suffer any consequences and somebody who's in a correctional facility to who really does have to follow the instructions of the people who are are watching over him well your honor what was officer alexander to do this is appropriate time for a prisoner to be sleeping the prisoners in tight it wasn't an appropriate time for the prison to be sleeping because the prison was supposed to wake up and go down breakfast today and then wake up and go to breakfast what the log entry referring to was at four am i don't believe that was  he's being insubordinate so the officer and the officer can't wake him up so the officer could think you know what this is something's wrong here i can't wake this person up i don't know why i'm going to tell  my superior about it it's serious enough going that's how my superior about it and then i'm just not going to do anything well that's exactly what alexander did he locked it and he called is superior and they talked about a reasonable response and fortuitously the ultimate supervisor earthman came through the door and assess the same facts they all drew the reasonable conclusion that this was a very sound sleeper or perhaps in insubordinate prisoner who didn't want to be woken up that is a reasonable conclusion but your honor i believe the discussion we're having now we're talking about the merits the merits being whether reasonable jury could find that there was no in disregard of a serious medical need before this court can get to that question i believe you have to address that question that the district court did not address and that is whether these officers under recent supreme court precedent are entitled to qualified immunity and i would submit again and this is the principal argument to that condition the inmates rights are violated you do agree that's a general principle here are i agree that that's the general principle but in order to address the qualified immunity question which has the come first  sleeping would be considered a subject of really serious condition well you know here are the question would be whether that is a clear violation of a constitutional right that would be known to every reasonable officer while you address his attack on the fact that this other evidence from the inmates is contained in the police report it's hearsay and there is no affidavit and how we should treat that in the context of summary judgment i will say your honor that  why weren't they provided you know some some eight inmates could not be found which which is part of the problem however the court certainly referred to that testimony in that report and again this may be also if i had as a business record there may be other ways around the hearsay objection regarding that but i do appreciate that be it being a concern that well if there is not a way around it can certainly is not present sense impressions given well i guess that could be debated but  if there is no way around it and those statements don't come in then that's a problem isn't it well admit it may be a problem again there is testimony by way of the other affidavit that we have the inmate which is also very supportive and again that is the inmate believe th talks about that he actually ended up having to go into the hall because he continuously told so you alexander that there was a problem that alex had a physical problem that he need to do address so there is that evidence by way of the other affidavit that we do have  from the other inmate if i can just address a few issues as far as counsel again is this court is well aware to determine if qualified immunity is to be provided there are two tasks that need to be decide first whether a cast to tional right was violated this go back that police report was taken some time after the incident in question was either i don't remember if it was the same day or the next day but i know now because i'm looking at the theory of admissibility was present since impression or excited utterance is and usually that doesn't qualify you know it may very well be a business record it was a an official investigation done by law enforcement officers of the the county this with the sheriff's department the right out business records that contain hearsay you have to have