client was in an immigration detention center he went into the bathroom to use the restroom and came across two men fighting he did the right thing he called the guards and the guards came broke up took the fight and took them away and i coul security officer however released the guards and by the time my client was finished using the restroom relieved i'm sorry he released the two men i'm sorry yes you're on to release the two men by the time my client was done using the restroom he was washing his hands one of the two men had come back in with a cohort and began to beat him nearly to death and  i stress summarize there are other facts as well for example it was a u s customs agent who physically broke up the fight and then handed off the the two violent detainees to the cal security guards with instructions to segregate them  those it's those are also important facts i think for the purposes of first the ability so that but the the posture of this case is troubling because  court found the allegations woefully inadequate on the scribing which you've now amplified in response the judge wins question those did not should have known and so the district court dismissed with leave to amend and the second the first amendment amended complaint came back with certain amendments but didn't make any amendments to the picking up on the judge's criticism of the failures of the original complaint and so at that point he dismissed with prejudice your third amended complaint actually came back and provided not quite the detail you've just said but votes are you let's say it was more amplified were clear and clarified dismissed theories rather than claims i only brought claims a clean one claim for negligence and one claim for negligent infliction of emotional distress among other claims but only one of each of those claims with three different alternative theories under which he could recover for those claims so what the court did was just mysterious with prejudiced when without stating so while allowing the claims to move forward but when we get into discovery the allegations don't always play out exactly the evidence doesn't play out exactly as the allegations and lead against usually have the right to  proceed in the district court the judge a kid that eventually was the failure to come back you know rescue him in a timely basis  what's your authority for saying that in the initial which is what you're pressing here not the i haven't appealed the summary judgment on the other theory as you put it what's the authority to say that you can revive the general claim on a theory that was from the get go isolated a den of fide and found wanting twice and dismissed with prejudice so what's the authority that say you can't do that on a trial be six you're on i think the authority is under rule eight and that in rule a provides that a pleading misstate alternative theories of recovery and if any one of those theories is fission the claim is sufficient so even though the theory that proceeded was the failure to rescue the dismissal with prejudice in the  states expressly in its dismissal order that it was dismissing with those claims of prejudice i think it's pretty clear what it says i think you're human and it but it that's assuming for the moment that you're right  you can rescue the claim in that fashion if you give me your best facts that give rise to reasonable for see ability already that the that the agent broke up the fight to segregate the individuals involved in the fight bruised it was clear that they'd been in a fight they'd been told by a u s officer that they'd been in a fight and they were not segregated is as they should have been it's and is provided for in the contract that a cow has with the u s government that they must segregate violent detainees and that's for prisoner safety or for the violence comes from the mere fact that they were involved because they they weren't well wearing the uniforms of individuals who are identified as sept having a propensity to violence right you're saying that the guard should have known that they're violent by virtue of the fact that a fight yes your honor i don't think we need to get into the color of uniforms they didn't have time to the fight had just occurred they knew what occurred and the fact that they weren't wearing a particular color of uniform or they didn't style their hair in a particular color that day it way that day does not mean that they don't have a propensity for violence that's obvious and should guide the conduct of the the ability under california law is is not whether or not uniforms are ready for or not the question is whether or not there that violence against my client mr we was foreseeable and i believe on the facts that we've discussed here that that that is the case and kalak good have the duty to segregate either segregate  please the court michel forever on behalf of the call security to address a few of the things that my colleague mentioned the fact that he mention that there was the break up by an agent of the us government i don't see that anywhere in any of the record or the pleading so that would be a new fact i also think it's important on the foreseeability issue to really focus on what the facts were and what the court considered on the motion for summary judgment and those factions were vats neither there was nothing that had ever happened prior to this very limited in time and scope incident to put a call on notice that the used to go individuals were violent or that they pose a threat to mr lee the incident with mr lee by his own testimony lasted between seconds and one minute so the a call security guard was available and at the post and as required by the contract and immediately broke up the incident the other thing that's important with respect to foreseeability is that the uniform colors do matter because we're not in a jail situation we're in a detention center yet there are some detainees who may be known to be and or have had cause problems and they were segregated in wearing a different color to change the designation that would have triggered a different uniform but they had just been involved in an alter cation but there was no evidence presented ever that the altercation in the first instance had anything to do with mr lee or wife he would be threatened or in danger because he had communicated this altercation to the security officer i don't see anything in the record that establishes that that that would be foreseeable that they should have known that because of a short incident fight that these two individuals had to be immediately removed from bottom line from your perspective you have two individuals never any problem before they're not in the college color of uniform but would suggest they need to be segregated they get in a fight surprised everybody fully comes and tells about it they come back but there was no evidence that should have put  in notice yes there's an additional factor i think supports that and that's when the altercation between the two individuals was broken up at mr lee's request the two individuals were sort of hugging each other and acting like they had a misunderstanding and i think we have to take into account the situation the facts show where we are we're in a detention center we're not in any jail which is a lot of the cases that were cited and so there's interaction and things that happen that don't require segregation that don't necessarily result in violence there was ample opportunity given by both the just judges in the district court to obtain facts provide additional facts there was an additional theory allowed to go forward if it was at all forseeable that call should have done more they according to the court had the requirement to do so out and none of those facts were ever alleged as to foreseeability ok so just so i understand i was for because the motion to dismiss you're talking about the summary judgment and you're saying that in that context  we should be looking at the whatever was in the record at the time of summary judgment to call notice and that would include so should be looking at it that's what we should be considering i think so i think that the original ruling on the motion to dismiss was correct there were two ample opportunities to amend and provide additional information and that more information in the well the third amended complaint the out the allegations the specific factual allegations and i can give you the paragraph numbers on those that were they were in the second amended complaint as well so they were new allegations they're trying to be used differently but all the same facts as to a call were in both the second and the third amended complaint second amended complaint paragraph fourteen has the alleged additional facts of how they first alerted the guard the cut on the bridge of one detainees nosed and the guard walked him to a call officer who was supposed to walk the detainee out of the building those were in the second amended complaint at paragraph fourteen the  are cited in their reply as to the additional detail and let me see where they are in the third amended complaint believe they're in some of them are in paragraph fifteen they put three additional facts that should have been considered by the court in the third amended complaint and my argument is that those same facts were in the second many complained they're not new facts let me just be sure as i understand it while originally he presented three different like with his theories the only one that's before us was that a cow was negligent for failing to segregate one after the initial fight in order to protect him from retaliatory violence that's it right  w the district court got into the foreseeability issue and it's a valuation right that would be judge barnes is order correct and right and so there they made an argument before you however that in the third amended complaint there were new facts alleged i think to address your question that we should have somehow being considered might have changed things but they're not new facts they were in the second amanda complaint which is what judge burns had in front of him when he limited the one theory of negligence that would survive which we then did discovery depositions and then filed a motion for summary of the sac at that point yes ok not the third and i think that when you read that if you really look at the order on the motion for summary judgment there was a concerted effort by the district court to say ok we have what did everything i've looked at everything i don't think i have to because i don't think that it's appropriate on the third amended complaint because neither the court nor a call was given notice and it says that in the order that there was some new theories trying to be presented in the third amended complaint but i'm going to look at it anyway and see if it changes my mind and it didn't role if any should that case play in our analysis of this particular well it's because of action i think you go down a slippery road if you we always do if you analogize what goes on in our immigration system which is not a criminal system to confer and imply that the rules of jail houses and snitches should therefore be how they private security officers within these detention centers should operate i mean the view that you agree that aside from that distinction that they're pretty close close i don't know that they're designed of wildlife why and why is it different in terms of foreseeability i think it's different in first the ability because there is no predisposed idea that the people that you are guarding and providing security for include violent criminals or people he has committed any crimes yet you have colored uniforms to help segregate people who are so who have become so want to be there and become so and so i think that's the difference and there is there's a distinction too but do you have somebody that comes in that you know is a violent slasher you put them in one of those uniforms immediately when i think that would come under the part of your responsibility is to be mindful of who might cause harm to others right absolutely but absent that sense it's not different from a jail in that sense i agree with you it's not different and i'm certain that the people there feel as if it's in jail but it's the idea that in this situation that it was it should be a foregone understanding in foreseeable situation in all instances when i did taney alerts a security officer for assistance because someone's fighting or because there's an altercation or something's going on that that gets to this level of jailhouse snitch which may imply you know a drug scheme or all kinds of things that a jailhouse snitch implies this wasn't that and so i don't see how that changes the definition of foreseeability under these facts just also magic to some degree but if you had a jail situation where somebody had already been in problems  and they got nabbed or something else they'd be put in solitary confinement if you said you know you know joe over here he was fighting with him in the in the bathroom and he gets put in solitary confinement that's a snitch in a jail sitting in jail studying but i don't believe there's any facts that show that there's a solitary confinement option here it's simply i don't know and it's not that's not my point i mean point is simply that this is a relatively analogous situation at least in this one case that we had we felt that was  foreseeable and that there was improper action on the part of the officials why is just different i think it's different because i don't think you have a snitch i think you have someone who may have witnessed something where people are hurting each other they need help maybe somebody fell i don't know that there was any information imparted that he became a snitch on to people fighting or violating the rules he take his own deposition he says that he couldn't always even after being there the number of years he didn't always use english as his language so his ability to communicate might have been somewhat involved out of his own language during his altercation or occasion but that was after the fact that was after the  and his and his other parts of the record would show that he admitted that his communications while he understood the colors by seeing them you know might have been limited so i don't think that there's any foreseeable or facts in this case to make it like the case that you've cited because remember that case right i familiar with the case based upon the reading right yes i don't think it's the same issue because i don't even believe that we have the facts to show that he mr lee was quote a snitch ok honors first thing i'd like to address about my colleagues comments here i don't i don't believe that it is a foregone conclusion that that's always forseeable but we're not talking about whether it's a foregone conclusion we're talking about whether or not a jury can look to whether or not it was forseeable in these circumstances at this particular on summary judgment and most of of what we've talked about are factual disputes whether or not in this particular circumstance of the tension centers the same as a prison whether or not the red uniforms matter these are all factual issues that should be reserved for the jury  actually address those factual issues i think it is analogous to to the present situation when you lock people up certain things happen they act in certain ways and it's not as though every person in and in a prison in america is a is a violent offender of some sort of fact i believe many of them are our nonviolent offenders people who are in prison broke the law people who are in detention broke the law so i'm not sure that that's fact that in in the the landingham case we're dealing with a constitutional standard which is essentially a reckless disregard standard here we're talking simply about simple negligence it's a completely different standard it's i think it's a little bit more it wasn't as though mr lee tried and failed to allege something three times the first american plate was ruled upon the second amendment a complaint was not and the reason that it wasn't was because there was government offended in this as well and allegations regarding that define that were deemed deficient so it should i think it should be the first and third complaints that if you're if you're going to compare the two between the allegations and i mention that because when i first started getting into the record of this case i was confused about that as well yeah but i'm glad you strip because i've been looking at the first and prevented or presented as to whether or not there was a threat to mr lee but again we're on summary judgment and the defendants filed for summary judgment they did not address other than to describe the uniforms and they didn't really address the first the ability issue as to the segregation or protection of mr lee as a result of the fact that the detainees were violent so the burden is on the cow not on mr le that there was no threat to mr lee and that's all i have in this there's any question thank you thank you very much thanks to both counsel for your presentation