argument here today is going to focus primarily on plaintiffs section one thousand nine hundred three claims against the d h s and the defendants and quite honestly the majority of it is going to be on what it takes to shock the conscience of federal judges of course the analysis of all that sorry what i do understand it when it got high burden to meet here today and we think this case meets that burden the fact is the analysis of a section nine hundred eighty three claimed that and i apologize for the court somehow i got off with the wrong set of glasses so i'm going to be struggling a little bit  trying to use my wife's glasses but in any event i think i can get through it we start with a general rule that a state and its employees i hope she's not  actions of private individuals however as the courts well aware there's two exceptions to this rule the special relationship doctrine in the danger creation theory both of which the district court correctly determined appl this case special relationship doctrine applies when the state assumes control over an individual sufficient to trigger a duty to provide protection to that individual the doctrines common to cases where police have taken individuals into custody it's also very common to child welfare cases where workers take custody of abused and neglected children have you played any constitutional violations we've plenty substituted due process constitutional violation as part of the section one thousand nine hundred three we also your honor we anytime you're trying to decide whether or not the state has a fish you control it it depends upon what  point in the process you're talking about in this case there were three time periods that the court was faced with the first was before the children were removed from the custody of v the second time period was after they were removed from custody but we believe we're improvidently placed back with the natural parents for a trower unification period and finally the third and most important time period in this case for a special relationship doctrine is after the children were placed with the foster parents which includes the decision to place the children with the foster parents as well as the failure not to remove the children after substantial risks were present and the history of this is i'm sorry to ask questions but that's sort of the purpose of the hearing have you played anything beyond negligence in this case we didn't plead negligence judge because there was no well we pled negligence negligence was dismissed there was no notice filed on the governmental tort claims act the clients didn't come to this negligent standard of care if you are trying to see a trying to find out where the assert what your assertion is with respect to the conduct that rises beyond a level of negligence that we've not asserted and don't have any information at this point that there's any intentional or wrongful motive type evidence in this case this is her in this reckless conduct in face of  what we believe to be very clear risks that were the case worker saw we believe the most important at under nine hundred eighty three what is your best case finding that this was that this case was analyzed incorrectly and minute as a result of that analysis an incorrect analysis and what i'm referring to is with respect  to and i'll get right to the meat of the question the the trial court in determining the motion to dismiss when through each of the individual defendants and basically analyzed each of the individual defendant's actions in a back you basically took each individual defendants and of course we know that well let me show you you do not can you do not contend that the action of any of the individual defendants was purposeful or willful to harm my clients no stride we can jim that it was extremely reckless and we think that that reckless conduct  according to cheney up what really according to a courier and the patent case extremely reckless conduct can suffice to do so we believe judge that liability should not be able to be avoided by spreading it out among a number of different actors by all the state actors if you have a situation with v h s which is what you do the h s works in a team effort they  have a number of employees that all handle especially in busy counties like tolls and open accounting they work on a team approach and but what draws all this into one one pile is the fact that every one of their actions their placements their findings the facts that they have the referrals it's all into a database that they are required to know so when any worker makes a decision they make a decision with the knowledge of all prior decisions made by other workers that local council it's sounds it sounds as if you're trying to make an argument that there should be some kind of collective responsibility on the part of the individual defendants but there wasn't room that isn't that wasn't really the analysis in either courier and i mean that the courts looked at the conduct of the specific defend their wells cases with all due respect judge i disagree i think well tell me why me why those cases that support the theory that you're that you're advocating right now well we don't disagree that the trial court needs to know what each individual does but the determination of the shock the conscience asks we based upon the compilation of all of the defendants together well but but then who's liable and i don't i mean who's liable at the end of the day you've sued a whole list of people individually for a nine hundred eighty three violation you saying that every single one of them owes your client damages of this court the first is in t d versus patton where referred to the courier case this is on page twenty nine where the court says courier shows mr duran miss medina and miss gonzalez the three individual defendants could be held individually responsible for their unconstitutional actions when they quote collectively contributed to a deprivation of the children's constitutional ro seventeen of the t d versus patton opinion states when stadium miss patton was responsible for t d s placement we do not intend to suggest that she was solely responsible for the placement decision we use the term to describe her significant contribution to the placement thereby making her responsible for tensional it along with others for creating the danger posed he did i agree with your honor that we have to show that each of these individual defendants took some action or failed to act that should make them culpable but the issue of whether or not the action shock the conscience is an issue that you and johnson i just don't see how you can take take one individual's kind and say oh that we don't like what happened here we don't like what happened there and then together it shocks the conscience is that really what t t is talking about well that i think it is judge and i think that's the only way it makes sense i'll have to read it again i mean it was my opinion i understand it and i know i'm arguing preaching to the choir somewhat but i'm telling the court that that the only way it makes sense on the shocks the conscience in a large organization of state actors is to view the shocks the conscience and we're just talking about but nonetheless is named as a defendant and then there's a collective shocks the conscience that person's on the hook for damages well not necessarily the judge because you've made it clear in your opinion that for example with regard to this pa that she has to have significant contribution to work to the to the unconstitutional action on the plate if not just minimal we're not making the argument that someone obtains liability in a very terrible situation simply because they made one phone call we're saying if they had significant contribution which i believe is what the court said specifically or collectively contributed so how many defendants do we have here twenty four and are you saying all twenty four are liable all twenty four are liable for shocks the conscience substantive due process well are you willing to concede that some of them don't i do concede to that judge and why are they thinking why are they still on the subjective determination by a federal judge to determine first at the trial court and then in this court as to who what shocks the conscience will who whose defendant is con which defendants conduct agents worker quote as heinous and shockey but judge we have we have critical facts here we have a fact and one of the facts in this case that you can't get around is the fact that  these workers at least three of them were aware and and another two supervisors and four other workers they have case notes that indicate that they discussed this they knew that this child the six year old  judge to sarah's question when you've talked about ms busby which of the defendants most satisfied the shocks the conscience standard you mention her who else and why judge the defendant and sexually abused from the foster parents that said that the children read sexually abused in the home she was the one that allowed four months to go by where had was removed from the home she was the one that the foster parents asked edward to be taken out of the home and then later on judge supervisor caraway was aware of the sexual abuse of the initial referral and all that was done was to do a referral to  i'm pointing out just the specific with workers the h s workers that were knowledgeable of the risks and failed to take any action to protect from that risk and that that were think you're from your calling here or as they say in d c from your friend each defendant in a vacuum and the judge to spread out the liability or whatever and i don't think that's what this court has told us from paul in other cases i think each defendant is in top of the judge on their own well what do we do just as an academic proposition with the case where the collective conduct of the defendants really dulls shock the con on it to the point about rages b institutionally but you can't pin the conduct on any one individual defend that does the do the defendant just go free and the victim is without a remedy what's an interesting question judge i think i mean i understand sort of the balancing of equities of plaited but i for example why didn't the allegations in the complaint state a special relationship substantive due process claim given her awareness of the of the sexual abuse and her failure to respond the children were missing therapy appointments and while i think that may be sort of it even if it was reckless which i don't know that i could go that far but if it's even if it was reckless beyond gross negligence allowing the children i think the allegation was that in two months they'd miss fifty percent of the appointments i don't know that that would be enough to show that something shocks the conscience especially when you're sort of concedes that there's no evidence of any intent i need to defend their twelve and she's aware of the sexual abuse she's aware that the response to it is supposed to be family therapy of some kind and then she's aware that it's not happening in the face of sexual abuse child on child and awareness that it isn't being addressed conscience thing but again i think even the issue of the foster parent not getting the children but case of you got for that bigger part of that he said that that doesn't state a claim under shocks jerome even under a special relationship there e you know that at this point you're not you're not contesting that that there was a special relationship well i think it's the sort of question about the the oklahoma government tort claims act if the complaint has alleged that the defendants were engaged in a willful and wanton conduct and you may not agree that it does but let's assume that it does does that take them outside immunity coverage under the act no sir it's sort of a notice requirement and designer stand it holds that no notice is required if the conduct alleged is outside the scope of the employment is that correct the statute in a way that would call for notice that pelligrino did not require such a thing is anything happened is that is the statute been amended that alters the pelligrino notice discussion not that i'm  employment then there's no g g c a claim available as to the state i guess where i'm going with this is whether lack of notice takes care of the state claims in this case i think it does run i think it's a  are any federal claims asserted against the department or are they all state this here obviously negligence claims that other claims against the department state claims but really federal claims asserted i do know we're calling the federal claims against suggesting that simply because somebody is not even have to be on a phone record that they should have liability we still have to show that the and that's why i think the courts know dead substantial participation has to be proven we have to show this person knew what was going on with the h s the key factor here is we have no less than i'm going to say six or seven employees and supervisors who were well aware of the  in the home they were well aware that they were leaving edward in the home where he was sexually abusing six weeks later they were well aware that edward had had acted out again at the babysitters for a new river or the were well aware that the family was using corporal punishment that they were using drugs that work or herself smelled drugs and now all of those were six or seven had awareness of that risk thank you counsel understand the