and despite multiple attempts to request protection from prison security was ultimately stabbed in an entirely preventable attack against his person he was told that there was a threat but the threat was a den of fire there isn't there is no specific threat we don't know who made that threat we don't know what the nature of the threat was so how are you calling this a specific threat sure i think that we classify the threat as specific in part  because officer warren clearly thought that there was a specific that you should respond that pill and you needed to go get his own knife he he made a very clear request for protection and fear for his safety and even his life you know in this instance so you're saying this this threat becomes specific simply because of the response i think that the response definitely  request to the warden that is the situation saying i have a problem with another inmate in this compound i want you to tell me my status here where i am i submitted a request for protection i want to know whether you're going to give me a marbury while he did not identify someone by name and states that he was sort of told this information secondhand it's not very likely that he's going to actually identify someone by name in a writ it even worse than nothing i mean it pointing to and of course we have to we have to constrain the allegations in the light most favorable to your client and accept them as true so what is happening or not i don't know but  uming it happened and that officer ryan responded by saying we shouldn't care about the threat and do you really think i'm going to act on your request after you filed complaints against me and then laughed and said you sort of brash response that you know we're not going to do anything for you and you better go defend yourself this case is very similar to directory is in that regard in that there was a a hearing where it's slightly different because there was a hearing but there was an opportunity for us to explain sort of his concerns and they that there are two things that are there they on the first one i don't think you really got off the ground well another trip charged the recommendation to the second one is a close one can you give us any more related to the question the judge taken by ms asking him was there any investigation at all of the claim that he made the concern that he raised about another gun me telling him that he was going to be harmed in other words did he not corroborate the some kind of investigation or follow up i was trying to follow there's no evidence in the record that indicates any investigation was performed in fact there's actually evidence to the contrary officer order nesis affidavit states that all written complaints come to his office and then he delegates investigation out to a captain or a lower level prison official in this case he says that would have been kept in karla graham he does not reference the april nineteenth allegations made by mr marbury and at no point did she actually investigate any any complaints made by mr marbury he also made some other request for transfer apart from a threat want to be in a more social environment so walk in and just the general violent nature of that unit should have placed prison officials on some sort of at a heightened awareness to some threat that was you know was made afterwards especially when there's there's more specific facts to back up that complaint he is it you're basically he's saying hey there's been all these stabbings and i'm going to be stabbed and there's there's literally nothing s the natural conclusion of what you're suggesting is the only way that the prison has any obligation to investigate or to take any action when a threat arises is if the inmate can identify specificity sort of almost like include the raid who's going to direct we're going to do it when it's going to happen i mean there is such a thing as knowing of a threat that is a real threat without being able to identify who specifically is going to do it so my question to you is what if any obligation does the prison have to investigate a claim have a real threat if there is no if investigated and it was negligent not to that doesn't mean that this rises to the level of cruel and unusual punishment except perhaps that could be true perhaps that could be generally true but we're talking about some clear price in here and we're talking about an officer who allegedly responded to mr maher brain by laughing and knowledge that better get a shank because this is a realistic problem in this president and we're talking sort of general allegation of violence claim that is also presented to a specific threat claim oh we don't think that he has presented evidence in the record for this court to determine that there really is sufficient frequency of violence engaged in discovery and perhaps he might find out about the d o j report and the d o j investigation which found that there wasn't a deliberate indifference to the rights of the court would take judicial notice right isn't that put them on notice i mean if that were in the record if and i agree it's not in the record but the reason it's not in the record is because it was not allowed to engage in discovery if he had been allowed to engage in discovery then why would that not be something that would put them i know it is especially if the prisoner comes and says you know are there fifteen stabbings i had been subject to the threat that was going to be harm to me in particular why would that not district court abused its discretion when it didn't allow more discovery that is not an issue and from this court we have the record that we have and that record is parsed and if this court were to grant that were to reverse based on that record it is going to make it possible for any inmate in the eleventh circuit to force a transfer to a more sociable cell block or to a more sociable cell were to obtain a more sociable saw made simply by making a allegation with no who what when where why and of course not every inmate is going to have to check every single one of those boxes but context is key here he's in a prison officials deal with threats every day they need to be able to determine which ones raise some risk of harm like perhaps  and which suggest that there is a substantial risk of harm if you look at rodriguez it provides a very helpful contrast with this case from the other side noted that there was this written statement from mr rodriguez  so rodriguez said in writing he had quote a problem with another inmate in this compound and he wanted protection the court said that alone probably would not suffice to create a generic fact about subject knowledge but guess did have was additional context crucial context the why i guess he's left the latin kings gang the who land kings gang members the when when i'm released from administrative segregation back to the general population all of that t scale from his threat showing merely some risk to showing a substantial risk this is my foreign military where you had a lone complaint coming from mr milledge saying my cell mate doesn't like me he has threatened to quote f me up soon crucial to the context as you have this prison official who says well i hope you better find yourself a shank so does that does that show that the prison official in fact drew the entrance that there was a substantial risk of and what she meant and how things have to be drawn inferences have to be drawn in favor of the nonmoving party very subtle that i think you raise a very important point you said that these happened in the last few months there's nothing in the record to reflect that and god said it happened while he was there exactly but there is nothing in the record that says when he got there so we could be dealing with a matter of a couple of months we could be dealing with a couple years and that is also crucial so i appoint you to this court's decision for twenty charge or general violence charge like the one that we are facing here but what the court did was they looked at the context in the record up and they noted that there are between eight hundred and thirty nine hundred ninety prisoners who were in home in prison during that relevant time period now they also noted that there was a relevant time period it was three years and the court was able to evaluate what to make up the fact that there was evidence of thirty three instances of violent attacks with weapons and the court said that those thirty three acts looked at in context didn't come close to showing that holeman was the sort of place where violence and terror reign that's the standard and that it was merely a place where the evidence at most show that it was a place where there was isolated instances of violence and here we have evidence in the record that there were fifteen stabbings but we don't know when we don't know anything about them we don't know who committed them other than they may have been gang related and again if you know what the prison population is there any evidence on the the prison population here absolutely runner and so what we have here that if you're dealing with fifteen stabbings over two months that means something very different from fifteen stabbings over two years and we think that without that crucial context here would make it impossible for prison officials to exercise their professional judgment when they face these sorts of threats which they face on a regular basis for that reason there is no clearly establish law that requires that result and we think this case should be down he asserts in his complaint that he alerted warden estus to the fact that there were a lot of gangs and he was not getting affiliated and for that reason he was scared in the planets of page six who complain he says what wrote that in a letter to mr justice on february twelfth where he wrote to mistrust of february twelfth that's twenty one page twenty three he doesn't make that same claim he does say that there are gangs here he doesn't say however that they are rodriguez was going to be in particular trouble because he had left the getting so that they don't take kindly to that we just don't have evidence like that and again this was that summary judgment on your honor your point about discovery i mean that it's not a question is before this court question but what the court looks to is whether what they were aware of and what was brought to their attention is enough itself to show that there was a substantial risk and not merely some risk of course there is some risk this court is also recognize that in the there is first of all the opinion includes very little factual information the there is one single threat in milledge here we have multiple different complaints by  limited to physical violence it it couldn't it could quite literally mean anything that is not a specific we know what it means and present i'm sure it has many many potential meanings but here we have inmate who has complained of stabbing violence particularly we have evidence that there are that there is weapons particularly shanks and knives within the vicinity and then he is stabbed we have very there a very clear line as to what he's alleging is a danger to him and what he does milledge also contains no reference to any other risk factors as pointed out in the opinion by the court there is no mention of any gang violence within the cell block or the unit there's no mention of of any weapons or actual risk factors associated with the generalized threat that made here that's just not the case as has been sort of porter or multiple times now we had these fifteen different instances of stabbings and that's just what he's so you're the relief you say complicated at that should have been granted and speaking about what's in the record how what are we supposed to make of the the allegations about fifteen stabbings when the record does not reflect the period of time over which this has happened when the record does not reflect the prison population how can we have value late that and related to that if you don't mind i came away and i can't tell you why i thought this at the moment but a plan gone bad and maybe you could harm me with the idea that mr my brain was transferred to s clair just before february of twenty sixteen cell like in january of twenty sixteen i don't know right i'm thinking now whether it's just something that i came away with but there's nothing in the record or rather there's something on the record about it but related to what judge branch is asking me on can you help me out that last i don't mislead the court i'm not specifically aware of anything in the record that states exactly when he was placed as sin long period of time is the first thing i'd like to point out and two i'm not sure that i would place a huge emphasis on on that factor i think but our case law has has a value weighted when there has been a complain thirty three or whatever number of stabbings looking at the period of time over which this happened looking at the prison population to determine how much of a threat there just a certain number of stabbings present so what are we supposed to do with that in nature of them we don't really have any any evidence as to whether or not they they were you know a month apart or whether out they were extended out over a period of years i just would would emphasize the fact that they were so they were so serious and were such a cause of concern that pell marbury mention the multiple times in several different requests it wasn't as if these requests were spread out over a period of time that the request sociable levon area doesn't he say in the quote short time that i've been to claire i have witnessed gang activity gang activity in fifteen stabbings in my area a case of stoli general violence this is a case where you have a history a background of general violence in in the unit that mr marbury was housed in you had all these attacks that were there were