i plan to preserve five minutes from the rebuttal the district court concluded that one case vs kruk grubb's unquestionably put all corrections officers on notice that sending corrections employees into situations where they would encounter violent inmates and be exposed to an inmate assault violates the th amendment from that broad general proposition the district court denied qualified immunity and authorized constitutional liability against sixteen a t c corrections officers for their alleged roles each of them distinct in eight different instances involving an inmate assault on a fellow officer the district court's error was twofold st it's a fine apply the constitutional right  too high a level of generality simply stating that a corrections officer violates the th amendment when he sends another employee into harms way just restates the state create a danger doctrine a legal principle is clearly established only if it clearly prohibits the officers conduct in the particular circumstances before him there's absolutely no specificity in the district courts formulate a principle nd the broad general proposition it relied upon cannot be extrapolated from facts or it's holding there were two allegations in grubb's that elevated the claim to a viable th amendment claim st the defendants in that case tricked the plaintiff nurse into actually working in the facility by misleading her into thinking that she would never have to work alone with violent sex offenders and to the defendants then after hiring her on that misrepresentation assigned a violent sex offender whom they knew would was very likely to assault a female if left alone and  assigned the sexual predator to work alone with the plaintiff none of the plaintiffs in this case have even remotely similar allegations not allege that they were tricked into accepting their jobs or that on the day of their respective assaults they protested the unit they were assigned to or the task that they were assigned in fact most all of them allege that they were aware of of the understaffing the alleged understaffing the alleged malfunctioning cell doors the security policies or saying that russert was aware that there'd been an overriding of the security cap classification for the hilton it's unclear it's not alleged whether he was aware of it at any time as far as the overnight ok what we're talking about people who know what their job is that they're dealing with people who are in prison and that the locks don't work in that things are understaffed but if there was no override of the security for hilton isn't then according to the allegations no that was defendants courtesan smith who overrode the classification the allegation that's remorse the allegation is that fits or morris refused to reclassify now there isn't this is what the district court relied on a subsequent conclusionary allegation at the end where they lump all four defendants together and say pfizer morris carter's and smith overrode the classification so i think there's a fault and the premise of your question as to whether these defendants actually committed that from a back but assuming that they did is that an affirmative act yes but that's only part of the element the question is did that affirmative conduct place russet in a or expose russia to a danger that he otherwise would not have faced and that danger has to be actual particularly particularly as and specific to him as to russia that's correct and overriding one of hundreds if not thousands of classifications on a daily weekly or monthly basis isn't specific to doesn't pose a specific threat to any particular employee that steps foot in that that facility and that's something that happens on a day to day basis so we can pick apart what the affirmative acts are and short sentence assigning an employee to cases against acosta and assume were ordered by any of the named defendants to work in the facilities or to actually retrieve or return inmates to the cells so if we're looking at a firm of conduct and that we have to tie it to a is salt there's nothing that says that he made a specific threat against knighton there is and more importantly there is no so when you say has to be particularized in specific that it has to be directed at this particular officer rather than i'm going to get the next officer i see well now that's that's that's you know and i think that's a closer call ok but but let's get back to night and st you're saying that you have to specifically point out the particular corrections officer that may be at risk sure there has to be there has to be a particulars danger to that officer for some reason above and beyond so brax in order to qualify in your theory with inherently dangerous inmates in for in in facilities act out they randomly act out for whatever reason and it's could be specific to a specific officer or just generally i actually believe in  this count there was an allegation that he had threaten to take out a c e o yes in that particular allegation now that again that's that's closer than a general threat i mean it is a it is it leads back to do enough according to your theory but that's right i don't believe  enough but that there's the other part of the equation here this goes to liberty deliberate indifference because we can have this discussion about whether it's enough but with this allegation in particular and actually with all of the claims there's no allegation that the defendants  is going to happen and that they intended to expose her to that risk all they did was reassign according to the allegations because of understaffing resign one officer in one unit to another unit there's lots of  inmates in the unit in buildings and pods and those inmates undeniably have made threats or are dangerous or pose risks at varying levels there are different classifications but that cannot be enough to rise to the level of deliberate indifference or exposing an employee in this corrections facility to a danger that they otherwise would not have been exposed to otherwise taken to its logical end simply hiring a corrections officer could satisfy this test or scheduling them to work in any unit because at any given time something could happen they're inherently dangerous prisons are inherently dangerous it's got to be something more it's got to be something more than they were this happened six months ago or the day before did i misunderstand job that he had recently been behaving aggressively in a radically he had recently been tested for meth positively for meth and recently threaten to take out a c e o did i miss know if you're right  new setting the ard set of without any warning of that is not deliberately indifferent i don't believe so again there's no allegation is the temp or approx of any of these that i don't know what that means it's not the find and maybe that would factor into this if it were the hour before or the or within fifteen minutes before like in the in count two like in holder maybe that's a close it sounds like the like the in looking at the st one well i mean they've got to satisfy rollei to even get to that stage i mean this is a four hundred plus paragraph complaint they had they had a lot of information to prepare this complaint and those aren't allegations that to two officer knighton or you know they didn't even know that there's no allegation that they knew that braxton would be walking around the facility well you can so you're telling me that when ratan says recently the that he makes a threat to take out a c e o is that that is something that that a c e o ought to always assume that every prisoner that you encounter is going to take you out is going to try to take you out is that what they're supposed to be sure shorts a dangerous job yes so what you're saying then they're dressed unless a prisoner says i'm going to take out night i think there's some gray before that idea i think that there are some great hits i'm going to take out the next c e o you know that that's arguably enough because it's close in time and then you have knowledge that you're about to send a c e o into that situation with knighton there's no there's no allegation that these defendants knew whether braxton would even come into contact with close contact with with knight and whether he would be celled or whether he'd be walking around her means they're out in the yard well that's not defunct that's not defined or alleged in the complaint but if she's doing welfare checks that's typically when you're looking in some windows making sure that they're that they're alive and in the nd part of the job was to  hold specific inmates that needed to go to medical now this is all happened between those two jobs so it didn't even happen when when she was performing the welfare check she had completed the welfare truck welfare checks and then and then it was in a lot between then going back and you know that's not that's outside me that would seem to be the logical place where these complaints would be resolved to get that that's that's why we have work worker's compensation and we also have state law torts on the th amendment is not a panacea for all wrongs there are other available to me as if us let's just assume for a moment that one of these counts they can state a claim you review argued for qualified immunity if you want to address that sure  i want to save some time for a bottle but i'll give you the company ok yeah right so qualified immunity again you go back to the judge silvers orders that was based on one case that was the grubbs case and that case that case can only clearly establish the law if it put every reasonable official on notice that what they were doing and in these eight instances put them on notice that that what they did clearly violated the th amendment that necessarily requires you to look at the facts and grubs and compare them but if you look at the more recent cases in the last five years the supreme court and even this court in the most recent state created danger claim hernandez vs city of san jose says you need to find a case that put the defendant on notice that that these defendants in this case under these particular circumstances violated the th amendment and when you look at grubbs it simply didn't do that for all sixteen defendants in each of the eight different instances grubb's didn't involve cell door locks or understaffing or or security policies grubbs was  we've never had a case that has talked about corrections officers no because that's not true statement we have grubbs but well grubbs is isn't grubb's different well than a corrections officer an inmate on staff assault and a corrections phil's facility to be you're right it did involve a corrections officer and that's one distinction but but really the guts of grubs is a misrepresentation when when you hired the employee an affirmative misrepresentation two after they hired her they went out and hansa lek did that the sexual predator whom they said she would never have to work with and thrust him upon her effectively outside of those circumstances there is nothing that clearly established any of these claims ok we'll put two minutes on the  motion to dismiss as the bench correctly pointed out we haven't even gotten to discovery have not there's so much information we don't know who made specifically what decisions what the staffing was that day what options were available you know depositions specifically what were people told and who know knew what we understand there but the you know we have to get bottom because that's what qualified immunity is all about is to avoid all the expenses that you've just laid out absolutely agree but that standard also requires that we did do significant investigation except we could we laid out a very detailed st of a complaint nd him at the complaint but then the standard requires that not only all prison they have faulty locks and they're understaffed and yet when and many of these counts were the district court goes through it seems to say well you know they were understaffed in the county that against the defendants that they were understaffed and the locks didn't work rather than accepting that as the status quo i mean that's what they're working with everybody knows locks and organ everybody knows are understaffed so that is not factored in is it well i think there's the st part about that that they're understaffed i've gathered to guess at almost every prison believes it's understaffed but that's the locks don't work in prison is a remarkable event it's not simply respectfully that the status quo that you know it's been as well move as i understand it is that there's nothing to indicate that the corrections officers all didn't know basically you couldn't depend on the locks in any of the facility well matter if that is true that they knew that they sometimes they work sometimes they don't sometimes they were monkey was sometimes they were but the  so i just want to it's a remarkable fact but that really doesn't rise to the level of a constitutional violation that's the difficulty i'm having is making workplace issues rise to the level of a constitution she thinks about that st of the decisions that were made by the defendants were based on this remarkable fact that box don't work so they're making decisions about putting people in places where they're going where they are most surely to be injured with violent inmates inmates who have options and when we talk in the complaint we talk about close units open unit pulling inmates who make specific threats into administrative segregation there are other choices now i can't sit here and tell you every choice because again i haven't had the opportunity conduct discovery also discretionary that's not something that we as judges should be trying to weigh should we well that that assume motions misstates that there are no other options that would have satisfied all those concerns that i can and we will produce expert witnesses if we're lucky enough to get to discovery that will say that there were plainly other options that would have addressed those issues whether they could afford to fix locks or not that there would have been things that they could have done that would not have simply put them in danger and what occurred was just a callous disregard for the inmates for scuse me for the officer safety and to put them in play this is where they knew that they were exposed to danger if grant your best case to support the proposition that this was clearly established law that it's not a significant difference because that assumes that these this was never by well a context part that i want to remind the court of is that this is different than for example the supreme court cases dealing with the sewer worker who goes into the sewer this is a controlled environment these officers are not free to protect themselves these officers are not free to bring in tasers or on authorized weapons they are reliant on their on what they're given there are lying on the rules that are set by their supervisors because they cannot per protect themselves and we look at grubs but they're free to do this job or not do this job they're not required to have this job so they are free corrections officers are trying to do this specific job that they're doing and if view themselves as being placed in a necessary danger they're free to leave the job some of my officers were baby officers nine for example was recently of academy i believe holder was recently out of the holder was recently out of the academy and she had no way to know she had never been a yard said officer and you know i know what a yard said offers from other cases i have it's a job that involves a numerous amount of tasks it's not given to baby officers if we get to discovery will demonstrate that and so yes i suppose they were free to take other positions if it was available to them but that presumes that they had the the experience of the knowledge going forward to be able to say hey this is unsafe i quit i'm not coming to work today and respectfully that that's not what required they relied on the policies they relied on their training they relied on on knowledge and sharing information and their supervisors and they put them in these situations and talking about grubs the counsel for the state misstates a little bit about crabs and that's the miss this concept that she was misled that the nurse was misled about what was going to happen now if we look across sure it is true that it talks about that she was never specifically told that she would come in contact with violent inmates but when this court in the  and two opinion went through the five factors that factor was last and the court said would not be prepared to defend against or take steps to avert an attack because she thought the and not been informed at heart and that should be left alone with violent offenders well i don't think anyone would reasonably argue that a nurse should be prepared to confront inmates and generally if there is someone who's not a corrections employee and trained  know trying corrections officer they have a corrections officer there with them friends that catches for nurses for counsellors generally there is someone who's expected to give security and the untrained people give t provide the services that's what's different to me in grubb's right and i it's not true in arizona but it's not a point but but but but the difference here is that if you look at the specific complaints and what's a maybe if i if i may if i could talk about some of them when can and she's put in position of coming in contact with that person not told and the decision is made by the defendants not to remove him from general population and put him in admin segregation that's not a condition that she signed up for question any correction officer signed up for now i have to prove that ultimately to a jury because i have to prove deliberate indifference i have to prove that they had knowledge of the risk and they didn't and they disregarded the risk but i have but i should be provided the opportunity to do that after discovery because again we're just at the motions in this age the same is true of christopher russet or when he's not told about an inmate who is making threats or mr holder when than him it makes a specific threat and is not removed those are decisions that are made that we believe will will prove that they violate policy that when an inmate makes a threat against an officer or staff or anyone there to be removed for the obvious reason that when they make a threat they probably meet in s open the inmates are able to roam around in this case are able to pop their cell locks occasionally move around but it's where we know that because we know the locks don't work right and then you may and that's my point you're not human then you make the decision to not close the unit not make them have you can't ok but but you also have more than one officer there as well with them and yes that if they're in the cell and they're and they're able to get out but the officers know that they're coming out of that point so if they're all able to have restricted movement their baby safety they made a decision and these supervisors didn't have to make that decision to allow them to have open movement in the unit knowledge and i have options and i choose an open unit over a closed unit that's an affirmative act and the standard if we look at the law it talks about placing the increase in the danger correct so so we  of these or correction officers that work in a in a prison that has dangerous people but in each one of you have to add that as dangerous people yes the facilities are not maintain the locks and they're understaffed you have to add that  absolutely and then you make decisions with those those apps but again those are absurd pieces but put that aside you make decisions putting people in places people putting people in positions we talked about in the complaint it talks about collapsing down position so now instead of having to floor officers you have one instead of having four yards at officers you have two yards at officers those are all affirmative decisions affirmative acts that are based on the knowledge that your suppresion is incredibly understaffed and that your locks don't work in prison so yes those that crosses the line a bit so does that mean that just if any time in those circumstances that you just laid out there that somebody is beaten up by a prisoner that they've got that provides a basis for constitutional claim under nine hundred and eighty three dollars no i'm not suggesting that every single officer gets injured it has a claim i'm suggesting that when there are acts in decisions because it goes back to the knowledge element right i have to be able to prove difference i have to be able to prove that each particular defendant had knowledge and made decisions based on that knowledge there are certainly going to be random acts of violence in prisons probably maybe probably many more than what we're at issue here  where the the supervisor or the chief or some other officer doesn't have that knowledge and it's a random act that's not a claim that we would that would be part of this type of things like if you go from to well i don't know i don't right but just because there are these dangerous situations and even i mean even though arizona's prisons are run in this manner and even though it happens all the time that's an excuse these defended actions as to these plaintiffs these folks were put in these situations  their lives you know that they made this is based on on going to work that day based on what they knew what they experience not expecting to be put back into the situation is going to work that it's a dangerous place to work absolutely right but it's a dangerous point w controls and protections and backups that's what they expect they expect that if they go to units represent there's before officers or two officers on a floor you know the buddy system too to protect each other that that's what's going to happen they expect that when they go there an inmate makes a specific threat to hurt an officer and that in and the policy requires that inmate to be pulled in to admin sake so he can't get near officers that that's going to happen and so that's what this suit is about it's talking about there's this underlying level of danger but these are all acts that were by the defendants that created more danger above the danger of these folks went to work every day with expect the supervisors to follow their policy so if if if for example one of my officers have been injured and the policies have been followed and the prison was sufficiently staffed and the locks worked that's the floor that's not a constitutional claim that's a claim perhaps under state law perhaps under worker's compensation but where the force not hear this what we're talking about here are dangerous situations absurd situations in prisons and then acts that are basically disregarding that danger and putting officers in places where that danger is going to be visited upon them the bottom is this does this get down to just a lack of funding by the legislature well i don't think that's the case i don't know that's the case that's not been part of the motions that if that was the case that would be on the defendants to claim that the case that some of decisions were based on budgetary decisions but we're not at that point yet and i know from my other work i don't think that is the case but we don't know it in this case yet ok thank you thank you thank you for giving me a few minutes of rebuttal i think his counsel just proves our point again in this case for them is really about failure failure to fixing locks failure of staff which are which is in action it's not affirmative conduct and and what he just tried to do today is dissect each individual in make classification in make movement in make placement every every staff employee that was scheduled on on any particular ship he's trying to dissect down and use those as affirmative acts but it just doesn't work there this client this case has always had been about the failure to do something the failure to make the workplace safe and that simply is not enough under any of this court's precedent and it's actually foreclosed by collin addition to that it all assumes that even if you have a malfunctioning cell door lock or inadequate staff on a particular shift it assumes that any particular inmates going to take advantage that opportunity and assault whoever  if there if there was an order to like walk down easily change in order for there to be an affirmative act if you just maintain an open system that's a is before that officer walks into the place i believe that that is relevant that's that's correct if you look at their allegations this is sent essential just maintaining the status quo it's maintaining status quo thank you very much ok thank you counsel think we thank both counsel the matter submitted at this time