prior to service on defendants and then focus on the due process questions and i made briefly address the additional claims and i'm of course happy to answer any questions the court has about municipal liability about supplemental jurisdiction over state law claims or about the privacy claims like to focus on the due process after i mention the procedural posture the district court here dismissed sue a spontaneous prior to service on defendants which this court has described plaintiff was a then produce a homeless woman who submitted her complaint and so that has three implications for this court's review st the this court has the power and should recognize the viable claims brown stated in her complaint nd for any claims for which there is an arguable basis in her complaint either factually or legally rather than dismissal prior to service on defendants this court should remain and for the district court to allow service on defendants the filing of an answer and then for the case to proceed in an ordinary course including a motion to dismiss on the pleadings and finally even for claims that lack an arguable basis in fact or law if there is this court held  cuoco any indication that a valid claim might exist the proper response for the district court rather than dismissal without leave to amend has happened here is to permit amendment indeed to a pit permitted memon as of right in the st instance of this court even if there is no war equal basis but there's any indication there might be a valid claim the proper course is to remain and to permit amendment presumably the district court would consider appointing pro bono counsel on remit and that the special relationship doctrine we've seen over and over again that if it's not involuntary commitment of some type that there can't be that special relationship established you're not i know you are in reference to the executive order of requires an involuntary full physical custody and we've argued that's not true but as your honor we have noted that in fact there is a significant degree of control that new york city and its employees through the shelter system exerted over brown including requiring her to remain in a shelter after ten pm when virtually all the attacks occurred and also under executive order one hundred and fifty one dollars when it's at or below thirty two dollars degrees but even more fundamentally on the due process special relationship there's a special relationship in the state enhanced danger and i'll address both but on the special relationship this court specifically held in society for good will that whether if someone is residing in a government institution whether voluntary or involuntary then the government has a corresponding duty to provide minimally safe circumstances and not to be conscient shockingly deliberately relationship when someone was on parole and not within physical custody and indo for all that the parole officer is kind of in control of your life in many ways we've recognized that and we've recognized that as a c a city found her to be chronically homeless and mentally ill not effectively able to care for herself outside the system and where she was shorted by state or local court that she was and capable of caring for a softened committed to the a court to be there but neither for you to leave at any time she was not free to leave between ten pm and six am and she was not free to be or not to be up she was free to a we she was not literally barred by order from leaving but as but again in jacob it let me move to foster care so indo this court held that foster care is a special relationship even though foster care can be voluntary or involuntary in this court in jan   put someone into an institution the society of goodwill says and i quote once the sea chose to how's the voluntary residents thus making them dependent on the state it was required to do so in a manner that would not deprive them of constitutional rights specifically including quote insufficiency supervision to prevent the residents from being injured by others so new york city has argued that society for good will is involving severely disabled individuals in light of the shame they could not bring and due process claim regarding the funding because they were not the guardians had consented to their being there so absolutely as to as to funding the holding in brooks and suffolk was just because the state had agreed to fund doesn't mean that they were obligated to do so and to continue doing so so it's pacifically held when however the government disclaims any entitlement to continued funding which it doesn't do here and thus ends the funding the reach of society for good will is controlled by the supreme court stuck with holding any that's not the question here here the city acknowledges that it will provide that shelter it voluntarily let let's people in each of those opinions was was the issue of custody here involuntary or not it wasn't on the issue of the funding itself it respectfully rahner it was there were two issues the st issue was funding and on that issue this court held there was no right to funding given to cheney on the nd issue which was the question of while they were there was an involuntary transfer permissible the court held that due process did apply but on the facts the preliminary injunction was not required because there an evidence that would be improper the court's holding was that there was no obligation to continue funding once the the state decided that it would no longer do so dick cheney says there's no a formative obligation to provide funding and i'd like to briefly address the other basis which this court recognizes which is the state enhanced danger which does not depend on the existence of any kind of restriction of freedom which we would argue applies here given the attacks that occurred when she was not permitted to leave the shelter and also given the fact that she was twice assigned to a bed in a woman who had threaten to kill or was assigned to a bed next to her and the shelter officials the defendants refused to either move the woman who threaten to kill or away from her and refused to allow brown herself to move there for state can contribute to danger when through repeated inaction in the face of of threats to violence the government communicates to  parties that they will that it will not interfere that it will that future conduct will go on punished and therefore you know can this court held that repeated sustained inaction by government officials in the face potential acts of violence might constitute prior surance is rising to the level of an affirmative condoning of private violence even if there's no explicit approval or encouragement if it's implicit through repeated in action not a single instance but is here thirteen instances of violent attacks brown made literally at least four hundred and thirteen dollars complaints about this and defendants did nothing they didn't investigate they didn't punish they didn't discipline they didn't protect brown he stood by have requested permission to appear for a limited purpose and that is to protect the government's interest in the proper scope of substantive due process claims the city's position here is really twofold st court got it right under very clearly  law there was no valid claim even arguably pleaded in the complaint but to the extent that this court finds these issues at all arguable that the new arguments that are being raised on appeal the new allegations  should remain to the district court to the city can be served and these are put in porton issues can be addressed in the usual court course of litigation none the less that the court absolutely got it right here the grothman of the out allegations sustained in action allegations of thirteen incidents of a violent attack should not that the city have done something wrong people running the shelters done something about those at the district court correctly held that allegation is absolutely resolved by to shani into shawnee there was also repeated action numerous complaints visits to the hospital the city had even the county there had even even intervened in the play in the past and returned the child to the father's care there was a similar allegation in the shawnee which was after the shady where we said repeated sustained action even after the she don't actually just stand for the proposition that repeated inaction becomes action what they what they say in the passage that my adversary was citing an oak and that your honor is referring to immediately after that passage the court goes on to cite pena for the proposition that there still needs to be some sort of affirmative conduct and the reason is because we're dealing with substantive due process there's no minimum standard of care there has to be some sort of government oppression some sort of affirmative act and  what there was is there was a personal specific relationship between the alleged perpetrator of the violence and government officials that through that relationship through specific conduct kondo nation and approval of the conduct was communicated such that the government could be said to increase the danger as this court said in pena the difference between special relationship and between the state created danger doctrine is the relationship it's the relationship with the perpetrator and here there is no absolutely or the negligence absolutely  that you're articulating she didn't have a chance to get more facts to try to show that there was this knowledge plus the affirmed that really two reasons your honor st when we're talking about the beds in particular this was on two occasions and there's no allegation that there was any injury that occurred as a result in fact if you look at her allegations of injuries they all occurred in different rooms at different times well before the alleged bed placement there's no there's no connection in the complaint to an increased danger and no your honor simply pleading that the city was aware would not be enough in every one of this court's cases it has required some form of affirmative conduct some sort of relationship with the perpetrator such that there was encouragement or condone it there is no allegation in this complaint that there was any that there was any interaction between any of the shelter staff or city employees in the perpetrators or that the perpetrators would have been aware of any condemnation in coleman this court  aware of any kind of condemnation simply simple repeated in action is exactly what there was into shiny and and it would be inconsistent with the shawnee to say that repeated inaction becomes an affirmative act it wouldn't meet the requirements allegation would be as counsel has informed the court and my understanding of that may have changed still true but they've never been able to contact their client so i don't see what the basis for this allegation this new allegation would is dedicated to the mentally ill is that there are services provided voluntarily to those individuals whether you have a mental illness or not you are not can you are never and can never be forced to remain in the in the shelter directive and of the curfew what the curfew is is that you're supposed to be in by ten o'clock in order to secure your bed and if you're not in by ten o'clock then you risk your bed being given to someone who executive or the executive or about the weather i'm sorry i meant to get to that the executive order what it says is that you make efforts to encourage people to enter the shelter which is what the city does send out city employees it tries to encourage people to come in there are times where the city a city official may be afraid that someone's life is in danger but what happens in that circumstance is the police are called they come and do an evaluation of whether that person is a danger to themselves or others and then what will likely happen is the person gets taken to the hospital if that's correct there's never been there is there is a process there are regulations there are rules there's no shelter officials would never be forcing someone in when it comes to the curfew yes the city i mean city hasn't appeared in this actually didn't put in papers below we haven't really had the opportunity to clarify but that argument about the ten dollars to six dollars am i just don't i also it wouldn't be reflected anywhere because it's not the city's policy and  the questions about the ten pm to six am restriction come from calling tillery shelter and that's what they told us obviously wait wait wait and i'm sorry but it's not in the complain your what would be the leave what would be what would be the legal basis for that we would challenge that but this is not but the question what you told us that this is a city policy so i need to know i need to know the legal basis that we're the cities where this comes from and the city says it doesn't happen doesn't exist and you're response is a telephone call the question is is there any indication that meant might allow that to be put in i at ten o'clock you cannot leave would that be without create a special relationship i believe it certainly would contribute to some dignity you entered knowing full well that you could leave after ten o'clock was was voluntarily accepting the rules the question under special relationship is whether there is sufficient control that the city bears responsibility not to be conscious shockingly indifferent but i'd like to moved to the state  disagree with the city's statement that that this court has required that there be a relationship between the government and the rd parties that's not true that would happen to be the context opinion oaken the opinion oaken quite plainly do not require that they say repeated sustained inaction in the face of repeatedly dangerous conduct can give rise to the possibility of an implicitly sending the message that we're not going to intervene will remove the deterrent effect that she was injured  by sleeping next to the person yes she alleges that on those two nights she stayed up all night terrified which is an injury yes which is an injury and also the fact that that communicated to sophia any physical injury that she doesn't i'm sorry she doesn't specify the physical harm to her that night she was attacked numerous times and she specifically does allege under a fair construction of her pro se complaint that the repeated sustained inaction of ralph brown assigning that client involuntary refusing to let brown move away from that woman that's involuntary which is absolutely pled in here she could not move away from the woman that night and in those circumstances that the communication of your being attacked we know about it we are not going to allow you to move we are also sending the signal to sophia and to others that we are