good morning everyone you may be seated where the students from i want to welcome the students i can hear from mission high school welcome guys have you here and i ask you when i think judge richard land for joining us again from the federal circuit in washington d c my pleasure very much let's take the cases up in the order in which they appear on the docket and the st cases will versus neven you your honor may i please the court name is matthew knoller a court appointed pro bono counsel for the poet robert wilke i will watch my own time and try to reserve two minutes for rebuttal and i thank you it is undisputed that at least one of the defendants in this case after learning that mr will could been threatened by his fellow inmate mr nunley chose to house mr wilkie and mr nunley in the same residential quad despite knowing that doing so would create opportunities for the two men to interact that would not have existed under alternative available housing arrangements there's evidence in the record from which a jury could conclude that the risk of a confrontation created by that housing decision and the risk that any confrontation with a twelve mile it's against mr wilkie was too high to be reasonable by taking that decision away from the jury on summary judgment the district court heard and in explaining why i would like to start with the reasonableness of the housing decision and then turn to the question of which defendants can be held responsible for that decision this court has held in the myer case among others that whether a prison officials response to a threat is reasonable is a question of fact that generally should not be resolved on summary judgment the district court here held that the housing decision was reasonable as a matter of law because st mr welcome mr nunn we were housed in different units within the same quad and two because those units usually were on different schedules but this court's cases show that those two factors do not automatically make the housing decision reasonable and there are other facts in the record from which a jury could conclude that it wasn't there was there was also a determination i believe that the only opportunity for these two prisoners to interact was in the court yard where there were guards posted so your honor i don't think there was a conclusion that that was the only opportunity for interaction that certainly was an opportunity for interaction and if i could respond to the last thing you said about guards being posted there's actually no evidence of that the only statement to that effect in the record is a request for admission that the defendant served on mr wilkes and that mr wilkes didn't admit thank you i clarify the record on something to  complaint that he was told at the october two thousand and thirteen f c c meeting that mr nunley would be moved to administrative segregation then at the subsequent meeting in november two thousand and thirteen he alleges that he was told that mr  still in administrative segregation as far as the record supports and mr wilkie has alleged he was never informed the mr nunley had in fact been placed in the unit seven a quad with mr welk until he was attacked in the yard and so based on that evidence in particular i think a jury could conclude not only that mr wilkes wasn't safe with mr nunley in the same quote as him but that the defendants knew that and affirmatively misled mr wilkes in order to get him to agree to go back to the quad   allegedly has verified complaint and also in response to quest for admission and in his verified summary judgment opposition that had he been told that mr non they would be in the unit seventy quad with him he would not have agreed to go back now i suppose it's possible that the prison could have forced him to anyway but during the two thousand and thirteen meeting he requested to be separated from mr nunley and has alleged that he he would not have agreed to go back again knowing that mr nunley was still going to be there does he have a right to object to which he's placed in as a prisoner but i don't think the record is entirely clear on that process your honor my understanding is that as part of the f c c process they hear from the inmate who is complaining about the threat so i certainly think he would have had the opportunity to make his views known and in response to his requests for admission the defendants have admitted that he asked to be mr welk would be under if they just put him back i think it does it certainly goes to mr leavitt's knowledge because everybody agrees that he was at the two thousand and thirteen f c c meetings and so i think a jury could conclude that based on what mr wilks told them at those meetings and based on the evidence that the officials affirmatively misled him about mr nunley it's location they would have known that there was a substantial threat by placing them both in the same quad as to the other two defendants mr there is a dispute about whether those two defendants were present at a job or two thousand and thirteen meaning or otherwise learned about the threat my briefs i think go through the genuine disputes of fact as to those issues that should have precluded summary judgment  in my two minutes before i sit down i'd like to emphasize though that even if you disagree about the state of the record as to those two defendants i think summary judgment was still improper because it was premature under rule five thousand and sixty at the time and one of the areas of information that he had sought in his motions to compel was evidence related to the october two thousand and thirteen f c c meeting and in defendant's summary judgment motion they submitted for the very st time in the case a declaration from mr levitt that they interpret now as identifying the attendees at that meeting but at the time they submitted that declaration discovery had been closed for a month and mr wilks opportunity to move to amend his complaint had been expired for two months so at that point under this court's cases which i've cited in my briefs the district court should have construed mr wilks discovery filings this request under will fifty six dollars d to defer summary judgment to get additional discovery at that point the district court could only deny those requests if the discovery sought would be fruitless and i know in your papers here you and we direct the district court to appoint counsel in the district court in the event that we were a man wilks no longer incarcerated what authority do we have to direct the district court to do that it was should agree with us of the desirability of counsel yes your honor so i don't think mr wilks incarcerated status has any effect on this court authority this court always has the discretion to appoint counsel for a pro se plaintiff and admittedly the fact that he is no longer incarcerated may be removes one factor leaning in favor of that appointment but i think there are still others that would support that appointment his difficulty in discovery the now clear need to investigate multiple additional prison officials as to what they knew when are all things that particularly probably through depositions that an attorney is really going to be needed for him to do that morning your honour's morning this is frank tottery senior deputy attorney general for the state of nevada representing the respondents defendants nevin nash and caseworker live it may please the court st of all thank you for counsel for coming on program i don't know why it makes their job a bit more difficult it really raises the discourse of litigation in this arena and helps get real case on the guy's us and something that can be vague sometimes thinking that there are very dressing  well the fundamental question here your honor is is whether the individual actions taken by the respondents upon learning of a threat against looks person were reasonable and i would contend that they were the case worker levitt it cannot be disputed that he did not ignore or disregard the risk upon learning that that's the baseline standard under farmer versus brennan well how can you say that it can't be disputed we do know  at least for purposes of the cases we now have it that he indicated that he was in danger we also know from what mr wilkes says that he was never put on the enem list even though it appears that that would have been proper procedure so how can you say that it was actually properly this so the very day that let learned of the threat he moved the both of the inmates into administrative segregation which is a high security yet more restrained level of what of classification while the investigation is pending right wise within two weeks there is a full classification committee meetings conducted to determine where a safe housing would be simultaneously disciplinary actions were taken against mr not might during each of the case notes and the c m s sheet caseworker levitt did indeed write that the reason for the administrative segregation was due to will quit while you're taking a long time and you're not yet addressing the point i made apparently there is an enem list that the president does maintain and that mr nunley would never put on that list is that correct yes yes that's my problem well to address that the force in effect remains remains the same the housing decisions had the specific notes that this separation occurred because of not only making the threats against well that information was very present for anybody that made any housing  and no i'm not sure that helps your client meaning if they knew and they did it anyway that's a different kind of a problem but that remains a problem well just generally there is a beyond that you've got stations down there six months o both in majority and protected segregation so the housing options were quite a bit more limited than somebody in somebody that can go into general population so other then that the st option was to attempt to transfer mr welk to a different yard level lock that's a smaller smaller and situation that generally has protector because it isn't yard or different prison different prison are there i know that we've got seven and eight are there other probably because this will was proceeding pro se and was not able to effect a plea get as discovery which i think you know had we gotten that discovery we might have some answers to some of these questions and that does raise a lot of issues that would undermine granting summary judgment in this case all  these are within mr wilks own file he would have had the opportunity to review his own image file whether he had a litigation or not he would not be able to keep it in as housing unit but he doesn't he doesn't need discovery of litigation to be able why central monitoring systems records are not updated perhaps discovery could tell us why maybe mr leavitt never even sent a request to the warden or if he did send it to the warden then maybe that would  that the warden now acted with deliberate indifference having received it and not putting it into the central monitoring system and for that sort of item so it's unclear if that would be definitive but to that extent i don't want to call it a harmless air but having him on the enemy list would not necessarily preclude it anything from occurring with nunley they're likely going to run into the same finite resources of not being able to house protective segregation inmates everywhere so the option would have been for one of them to go up to lovelock but being that it was full neither could so in lieu of keeping him an administrator's segregation added infinitum you could only go to another protective segregation yard where they're going to be on different schedules have have higher guard posts and not have any kind of programming together although if they had if the only alternative and i say this isn't if the only alternative is to have them in the separate units but with the common yard it might have helped had the guards known that there was difficulty between the two for example had they known that and not only was on the enemies list the guards didn't know that so when mr wilkins out in the yard waiting to go to class and mr nunley attacks him the guards have no idea that this was a possibility because he wasn't on the enemy's list so even if it so what i say if that the only alternatives were well the only alternative officers that are generally look at it at the list housing information our case workers that are not on the yard when housing decisions are made when parole decisions are made it costs a cation decisions are made there's not any kind of  for lack of better term real time access real time knowledge that a correctional officer that is escorting a unit would have is to the individual skirmishes between it shouldn't there be witnesses generally the the day to day guards are not apprised of the internal disciplinary actions so unless they were necessarily there that it involved with the disciplinary list is not a prize eleven of the purposes of the list is not to apprise the other guards of an incident who are concerned it is your it is to apprise anyone that is reviewing their inmate information that's just as a numbers issue who would have thought though that had mr nunley been put on the enemies list enemy of mr well that it would have been a very good idea and perhaps a deliberate indifference for not doing out if they really are going to be in these two units to share the common yard not to alert the guards of the danger that's present and then we was you're saying they're not alerted but seems to me they should have been there not at real time having all knowledge of every individual enemy list but at the time i would maintain it still would not have had any effect or function on stopping us oh i think that you have that can't be right  say if the guards know that not only isn't wealth anime's list and will cause out on the ard waiting to go to class the guards could easily then have said it arranged so that not only doesn't have access to the art of course they could have done that now they didn't but they and the reason they did it or at least a reason it was they didn't know he was going to this situation wasn't normal scheduled guard function moving function was going to he was going to medical and inmates in and protected are always accompany it wherever they go because they're going to be going past in our population while escorted on an unscheduled medical visit that is when he discovery to figure out actually what kind of a history not only had sick and this is hypothetical but if it turns out not only is well known to the prison officials to be crazy violent that would change the complection of the case now i don't say that's true but it might be response to questions by the court it's perfectly fine i appreciate your time thank you  thank you your honor just a few quick points in rebuttal i think we heard a lot of things in respondents argument about the structure of the prison and their policies and the way that the enemy list works that simply aren't in the record i have no reason to just beauty of mr todd use representations but there's just no evidence of those claims that something that can be explored through further discovery on remand in particular one of the things mr todd remission about guards not having real time knowledge of inmates enemy status if that's true then the only individuals in this case who knew that mr will could been threatened were the defendants and nevertheless they housed mr wilks in a housing situation where they knew that he could be exposed to mr nunley in the yard and apparently knew that none of those guards had any way to know that mr nunley shouldn't be allowed into the yard at the same time and to further explore the effect of the enemy list which officials would have known about the enemy list what they did with mr wilks request to identify mr nunley as his enemy just need more discovery in particular into the new officials who were named in mr levitt's declaration as to mr nunley as disciplinary record i haven't seen that in the decorations maybe i missed it it's certainly possible but even if it's there it's really not that relevant because there's no dispute that at least one of the defendants was informed by mr wilkie that mr nunley had threatened to kill him they knew mr knightley was a threat they still chose to house mr welcome mr nunley under circumstances that a jury could find was on reasonable thank you your honor and thank you for the opportunity to argue this case before you you can so i think that counsel for their arguments today and thank