good morning your honour's it please the court my name is chung hot and i'm assistant u s attorney and i'm representing the federal bureau of prisons correctional officers keep field and brian mason in their individual capacities and i would like to reserve three minutes for a bottle actions against these officers claim that they violated his eighth amendment right to be free from cruel and unusual punishment when he was assaulted by his cellmate in order to meet the standard for deliberate indifference mr armstrong must demonstrate that the officers were deliberately indifferent to a safety deliberate indifference has both an objective and a subjective component and that the prison official must be aware facts of the inference could be drawn that there is a substantial risk of serious harm and the prison official in fact drew that inference but disregarded the risk by failing to take reso measures to protect the inmate safety knighted objective nor the subjective cup component can be met in this case in addition the district court erred in denying the officer summary judgment that they were not entitled to qualified immunity qualified immunity bouncers to important interests one the need to keep public officials accountable when they abuse their power and to shield the same officers from personal lawsuits when they perform their duties reasonably hear the officers perform their duties reasonable there to vents the district court and this court must can be construed must consider and determining whether mr arms that constitutional rights are violated and november ninth two thousand and nine first is the cell placement and the second is when he purdah press the duress call special housing unit which is known as issue the officers knew that they were members of the same crew they knew that they were brought to this issue for temporary stay in order to allow the prison officials to look for a missing screwdriver they knew they'd been held in the holding cell of the shoe for an hour and out to an hour and a half peacefully without any incident officer feels was officer in charge that evening and he was the one who  question the inmates for selling purposes he knew that neither mr ben hona or mr armstrong was listed as a separate t of one another a separate fear someone who cannot be placed in the same cell with someone else he knew that there are members of the same crew and he knew that the stay would be temporary because of that he allowed the team to choose cell mates their eight members six of the members teamed up which left mr bear hona and mr armstead mr arms had claimed that it was at this time that mr so those are the facts and those those facts were except for purposes of the summary judgment motion so what mr baer honus said was that he did not want to be cell with someone who is not a member of his gang he was a member of the south side which is the southern california led tino gang and he said that he did not want to be held with black mr arms that is african american however he did not threaten mr armstead he did not do anything that would cause officer feels to believe that he would be a threat to mr armstead that was the only statement that he made which was for a cell preference there was no other action that he took officer mason the other officer who is the student is personal capacity honor so my point is based on these facts there could not have been an eighth amendment violation as to the cell placement now there's also the second event which is after the advent of the cell for an hour and a half to two hours mr armstead press that arrests call now as to the as a pressing of address but the other cases where they were qualified immunity has been denied the prison officials is when they didn't respond here they responded immediately and mr armstead admits that they responded immediately he said that four officers came running as fast as they could and austerfield got there first officer mason got there second and the two other officers followed them when they got to the cell what they saw was that mr han and mr armstead were standing they could see them in the window through the cell they could see that they were not engaged and they knew at this point that they had been together in that cell for nearly two hours when they got honus said myself he has to move mr armstead said you know i don't want to be here and they start after feel started asking questions he said and he said come on guys you only have to be here for the night and that's when mr blair hona struck mr armstead at that time there was they were still assessing the situation this is very different your honour's than other and deliberate and different cases where there was no response and that's demonstrated by the cases that mr armstead cited in his brief he cites a seven circuit case where the inmate pressed the dress button but the officer didn't respond he did investigate supposed to do and then in the rule twenty eight j letter they cite a recent case from the circus the castro case and that case it was the same thing with there was a failure to respond the inmate in castro was pounding on the wall for a full minute and there was no response here there was a response and that's what distinguishes case from other cases and why we should also add in the legal question yes or no i mean we haven't gotten out of the facts in the colorado argument in other words in order to have an eighth amendment violation as you said you have to prove that both that an objective lay should have realized there was a problem and if they in fact recorded it doesn't that eliminate any possibility at the second prong that they could have believed that they were right to do that if they threw the inference and just consciously just regard it well yes  an eighth amendment violation which includes the mental element of knowing that there was a danger that was just regarded then how can there be ever a second qualified immunity problem i would agree with your on that point so there is no second problem just at the first well on the clearly established part yes your honor because right now he's right because here they are here there have been no legal cases that showed that when an officer in fact responded to a dress call and was in the process of the setting the situation that the law had not been clearly established in that in that instance at the at the at the objective standard you would say but by right and you're there as you say objective the speaking it wasn't what clearly is clearly establishes whether there was under these circumstances a substantial risk of harm right and if there are case laws that show that under similar circumstances that the officer's actions were on reasonable factor which was the statements by the officers in which the officers declared that if they had known these facts about what mr bar hona told the officers they say that they in fact didn't know these things but for purposes of summary judgment they said if we knew that mr barahona had told us would have thought that there was going to be a physical attack right well and why just share suggests that there would have been a physical water well the the the issue is that mr armstead was the the prisoner well what they what the officers actually say in their statement says if we knew that a prisoner objected to the place objected to being placed with another prisoner in a cell we would not place them together because that wouldn't be safe is essentially what they're saying so having made this admission that said oh no we would never place prisoners together if they objected because we were trained officers and we know you know that to keep people safe i'm ok if you want the exact language because i don't want to be accused of of reading things into it the exact language of their statements  ignored comments that indicated that an inmate did not want to be sold with another inmate it is my practice to use my experience as a senior officer and sound correctional judge than to place inmates in cells where i circumstantial evidence so when you take all of this together i think that that supports our positions that are reasonable fact finder taking into account mr barahona's statements on which we you don't need an actual threat of violence from mr barak hona we now have an inference that the officer should have realized that there was a substantial risk of serious harm and counsel so it's cool to find could interject a question that might be relevant on the inference argument you're making is there anything in the record that tells us whether i don't recall seeing anything about that assault well there's the there's the racial slur but but anything more than mr barr home is own statements about not being declarations from the other two prisoners that are offered in support of mr armstead opposition to the summary judgment motion and they they do make mention of you know everybody knows that you don't can find what's in the record so those those would be i think the closest the closest that you would come to something like that ok and at that point mr barona once again said i cannot be housed with a black person and the officers in their in their brief even admit at this point we could have been aware that mr barahona poses an actual threat to mr armstead so an officer the officers at that point simply made some dismissive comments i don't think he's going to do anything we only have to say tonight and they  we get that from on this record well i think the district court did say it was obvious i'm not sure well whatever she said i mean it's up to us but i just i do think there was a vacuum in the  page thirteen both admitted that such a statement from an inmate creates an obvious risk of harm i think that's what i was thinking yes that's the objective standard as i understand it but the question is it yeah ok but if  never question but in the end even why should we draw that inference when he said i mean you're essentially saying when he said i don't think is going to do anything he actually didn't believe that and he actually thought that there was a mason said that doesn't mean that that's necessarily what he said i know that but i want to know ok so why should we think that he that even though he said that he meant he really did have the state of mind well i don't think you have to decide danger really was obvious that that's one reason because by that point you had such a huge amount of information that there was this risk that that you had a gang member who had made repeated statements that he did not want to be sold by this sold with this person you had the officer saying hey we knew if somebody is making these statements we've got to get these people in separate cel because there's a risk to safety and i mean i think actually by that by itself the officers statements as a matter of safety they can put people together if they acted to being together i think that by itself answers your question but but besides that then you have them being in cell together you have the duress alarm going off you have mr armstead saying to the officers this gu represent different right close to this regard to a known risk yes that's that's that is i believe exactly what the jury can do under the farmer case under the farmer case that would be an inference from circumstantial evidence that the that the jury could drop whether prison official had the requisite that they stayed they were standing there they're looking at them they're assessing the situation and that is what makes this case different from other cases of the lebanon difference where there was no office and gauge meant and the harm occurred because there was no austin engagements here there w think they were they were still assessing the situation i mean they're still assessing to see if there was a substantial risk because at that time there were no facts that would have demonstrated to them that that eighth amendment standard of a substantial  him take him out of there right away and left him there he was talking to them they did not walk away and that was the important point that the district court that wrong and they were they were assessing and under the circumstances that there was there has been no inmates gang preferences they don't have to do that they have the ability but what is the relevance of the fact that the officers here both said that had they known  there and the question is what do we do with if there was a threat to their safety and that's imminent and that's even am standard a substantial risk to safety there was no threat here i thought they might they said was if we knew they didn't want to be