court i am sean lane and i'm here today representing former sheriff brian norton and former deputies gary brooder and jesse hand and deputy jonathan hart who are the appellant's in this matter i would like to reserve three minutes for buttle if possible your honour's appellants come before you today seeking relief from the district court's order granting partial summary judgment on their behalf but denying summary judgment on two violation for in adequate medical care while happily was incarcerated in the real count grand county jail can proceed to trial on apple e's theory of negligence in properly monitoring him while he was incarcerated  against appellants brooder heart and hand in their official capacities only when those individuals are entitled to qualified immunity for their alleged actions and therefore protected under the colorado governmental community act ultimately your honour's we are asking jail which is a really small facility mineral county decided they want to transfer the apple lead to the rio grande county jail which is larger and better equipped and because of their they're more expensive facilities they wanted to move him there so in order to do this they needed to have abilene medically cleared before the rio grande county jail would accept them so happily was checked by a mental health c in mineral county who reported that apple e was not a danger to himself or others and there after the apple e was moved was approved to be moved to the rio grande county jail and he was move there once there the plaintiffs began displaying strange behaviors and his behavior reached a level where he was doing things that were upsetting other inmates to the point where jail staff felt he needed to be moved to his own cell for his own safety from the other inmates at this point jail deputies believe that the apple e was acting strange and definitely had strange behavior but that he didn't pose a threat to anyone including himself so he was moved into an observation and booking as it was located in the booking area and there he was in the presence of sheriff's deputies twenty four hours a day with short breaks when deputies were sometimes called upon to deliver medications to jail inmates well in your honor i have proof that you're asking that and one of the the situations with that is that what the court i believe said was that there was very little evidence but there was some evidence in this matter  we continue to stress the fact that the testimony appears to be uncontested and the some evidence comes from these jail logs but one thing i would like to raise is that even if he wasn't necessarily being checked by a specific to fifteen minutes and we're not conceding that but even if that were not happening the fact is that there is no he was being watched and i don't  that i think that the judge's order actually does agree with that but the question is how often does he need to be watched and with the cost of the qualified immunity doctrine it appears to us that even if he conceding that but you have to concede that for purposes of this appeal and certainly and we certainly can concede that and one of the things i wanted to get to was to say that even conceding your honor i would say that even conceding the plaintiff's position that there could have been three hour blake breaks and i believe that's their position i believe that these officers would still be covered under the doctrine of qualified immunity research has not indicated that there's any specific timeframe for observations that these officers were expected to observe the rapidly there's no guideline passed by the court stating that they have to monitor every twenty minutes to be in compliance or every four hours to be in compliance minutes your honor is this the sheriff specifically ordered these deputies to write down any strange behavior by the apple e and their policy required that if he was on suicide watch he'd be monitored every fifteen minutes  as he on suicide watch there is some question with respect to that i think that it isn't really addressed specifically in the order there certainly was at least one night where we believe he was on suicide watch but in any case we have consistently argued and we believe the record reflects the fact that he was monitored in this booking cell also can be almost all the time except when the deputies would occasionally leave to distribute medication right ok so i mean assuming that we know that you agree with me it seems that at least part of the time he was gets ignited in such a way where they were supposed to by policy check him every fifteen minutes circle to the idea that the deputies were supposed to i mean at least in the world we're living in today they were supposed to look at him every fifteen minutes and then you had the  log that show that sometimes they there's no question they were checking him every fifteen minutes the dog does reflect that yes or ok and i guess my question is isn't it fair for the district court to look at the checked every fifteen minutes and doesn't that bring us to the position that the deputies were violating some type of order or policy i think that  nd of course that there has to be the officers have to be put on notice of clearly established law that prohibits their behavior and we believe that on the st prong of that tes we have is that these deputies continue to call and it's not the specific deputies but jail staff in general for assistance from san luis valley mental health and when they call the mental health clinicians professionals would come out to the jail and repeat and this is a theme in this case and repeatedly tells jail staff that vince the apple e this prisoner interrupting but i was certain that the huge you touched on something that i had a question about this is the danger to himself question relating to deliberate indifference could you explain why the defendant didn't know he was a danger to himself why am number one they're monitoring him every fifteen minutes number two he had a self inflicted nose injury on november th there was evidence that they put a belly cuff on him so he couldn't injure him self and that he pulled back his toenails and the log itself very top says suicide watch now why would taking those facts why wouldn't it be reasonable for the district court to infer that the defendant knew he was a danger to himself or to some extent that requires the deputies to make a diagnosis on their own your honor they did recognize that there were issues and they kept calling for professional help when the professionals would either calm or or that the happily would be taken to them on a couple of occasions they would always assure these deputies that the log and and the headline log is suicide watch isn't that by definition an indication that the individual is a danger to himself well your honor the suicide watch l an artifact of a previous administration well it's in the record though and it is and it's the log that the officers were filling out it seems so it seems now we're we're getting back to judges charge point about arguing arguing factual issues well and you know this is an issue where the document itself was not filled out by all deputies there was no requirement within their policies to keep any kind well to some extent i mean i take it back to the fact that even given what points are saying and conceding all the facts to their position we would say that they have not been borne their burden under this to do ready to give i am please start members of the bench please the court my name is i'm from scottsbluff nebraska and together with my co counsel geoffrey hill i represent greg hoy yours we thank you your honors for hearing arguments in this case and we ask this court to affirm the judgment of the district court for two reasons number one the district court found that there were genuine issues of material fact meaning that there is no final appealable question for purposes of title twenty eight of the united states code section  and number two even if this court does exercise jurisdiction the district court finding genuine issues of material fact was correct not every claim that touches on qualified immunity is available to a descendant on interlocutory appeal in one thousand nine hundred and five the united states supreme court held in the case of johnson versus jones that a defendant who's entitled to invoke qualified immunity cannot appeal a district court summary judgment order in so far as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial this court would have jurisdiction over a claim that there was no  clearly established law accepting the facts as the district court viewed them but this court does not have jurisdiction over a claim that the plaintiff has not presented enough evidence to prove that his version of the facts actually occurred the defense has argued that greg sawyer didn't present enough evidence to support his constitutional claim but that claim of insufficient evidence is a purely factual dispute it does not turn on an issue of clearly establish law judge more found genuine issues of material fact regarding whether the defendant abandoned greg hoy as when they were supposed to watch him and because judge moore found material factual disputes that must be resolved by a jury the court doesn't have jurisdiction to really weigh the evidence in the records to decide whether material factual disputes precludes them or judgement and what are those facts with the facts so that greg  seated just feet away with one of them actually with his back against the glass panel of greg still somehow not noticing that the inmate who they're supposed to watch carefully is whipping his eye from its socket mr harding mr hand say they were on their feet walking back into the booking area from someplace else in the cell or in the jail none of these defendants can explain away the three hour gap in the multiple logs in which they were supposed to mark was how do you respond to that point i well i disagree this is not an appeal about whether the rights at issue was clearly established it was the th amendment grants pretrial detainees a right to medical evaluation and treatment for their serious medical needs and their will bust authority saying that that includes mental illness and if the defendant did not watch greg sawyer as they violated that right the district court is there one that's exactly like this is there a case that says that you know that pertains exactly to the issue of a psychotic man auto nucleate ing which is the term to removing his own eye there may not be there will be include the amount of time that went by which a inmate or a detainee symptoms are intensifying and are getting worse and and the circumstantial evidence not just the direct evidence is that the symptoms are intensifying and that the jailer is well aware that its employees are well aware of that and they don't act while the symptoms get worse and worse that's what happened here your honor and the montoya case it's not a mental illness case but it does still have those it does still have those components of intensifying symptoms objectively what we have to show is that objectively there was multiple clinicians who warned of the jail that great was very seriously mentally ill warned him that his condition was likely to worsen there's not a single clinical report that said the condition was resolving and this  clearly established law question the montoya case was a district court case and for clearly established to offer a qualified immunity we we look for a supreme court core temp circuit case and given that it's your burden to show clearly established law i didn't see the supreme court or circuit case now the district court  don't understand that part of it but how is it factually analogous to this case i can't answer that kate i can't answer that question at this time you know and i apologize condition he had been directly involved in the use of force with great earlier that day when great had attempted to escape from the cell now that night there was three at that time there's three people on duty there is mr bruder mr hart  a number of times in this deposition while i was just around the corner and yet at the time that hart and hans left the area wherever they went mr bruder who claims that he was watching diligently on the video screens the entire time didn't come up to the staff that area even though the booking area excuse me even though he knew that in that booking area was an inmate who is on suicide watch there's no order removing him and he's been told by his own sheriff and by mental health watch this man carefully and document what he does and as surgeon bhooter says we knew that this booking area is never to be left  understaffed irrespective of whether there's a high risk in make there and here he allowed that policy violation to take place he saw that they were leaving and said and allowed it to be on staff with a high risk in the sitting there now what you may have noticed your honor is that there is this conflict between what sergeant wuterich claims happened and what mr hart mr hand claimed happened and they cannot all be telling the truth they cannot mr bruder says that a small facility this is not like you know the denver county jail and even somebody who has a supervisory title such as sargent is going to be involved in the you know managerial in may care the ministerial part is that on an ongoing basis and that's why you'll see sargent boozers names on these logs as well and so he had the same responsibility as did heart and hand to make sure that that grade was watched he had the same responsibility for the fact that three hours passed the hours without any evidence that he was looked at at all it's not just that they didn't watch him although what i would say about just watching him is that that was the easiest and most effortless thing that these three defendants could have done and they didn't do it the log is the fact and every excuse the defendants make for not marking that log for three hours is just another question  then of course again we have video evidence that should are shown us what was going on and it has been destroyed in the large very clear that that defendants who have the you know could have been shown by video evidence they did not get to benefit from  destruction now not only did they not watch him they didn't just pick up the phone and call mental health which would have been the next least effort saying they could have done a little more effort to get him out of the cell taken to the hospital which they had been told logs show and the absence of video evidence is that for three hours they did not take him to the hospital didn't call a clinician a admits they didn't ever engage with him or talk to him they have to turn cartwheels to explain away evidence that says they didn't even watch him one year old honors said that's not negligence that's extraordinary indifference deliberate indifference is when you don't care even a little bit just sitting there and watching an inmate as ordered would be to get very bare minimum especially and this is important on a night when the jail is half empty and there's no booking melbourne all of them admitted there was no reason they couldn't have done it and they didn't care enough to even do that they knew there was a substantial risk of serious harm so obvious that a reasonable man would realise it and the fact is that they actually and subject of late did realise that risk it's a check court found questions of material fact as to whether these defendants were deliberately indifferent to grade schoolers and for the means in this court should affirm the district court and should demand this matter for trial if i don't if the court doesn't have any of the questions