plead or do in order to properly readiness qualified immunity before the rebuttal kicks in the way that issue was raised in this case is for whatever odd reason the officers five their motion for summary judgment and never included in the affidavit never included in the deposition testimony what the officers dead is that filed a hodgepodge of medical records report investigation and and disciplinary proceedings in support of their motion without an appendix and as we quired by the northern rules that texas they played up objected to that and said your honor non appendix is impossible for us to figure out exactly what these officers or relying upon and it amounts to no evidence the court agreed with that  he said the local rules of this quarter or not i don't requirements and failure to follow them may result in pleadings or evidence being stricken from the summary judgment record the quotes cites graham versus dallas independent school district which is a northern district of court case of two thousand and six the court is of the opinion that defendant sepang dixon he puts that in quotation marks will read in the brief we have outlined significant fact issues and that's that's another point of error that we've raised is that the court ignored the supreme court's dick dictates in the hole and versus jeffrey wayne cotton case they came out of this court and said you have these are fact intensive cases you can't words what did they do wrong well we outlined in about twenty pages in the brief well i'm aware of what you outline my point is did you depose any of them now we did know there were he gave us forty days officers if not all of them were disciplined for failure to do their job that's the problem and in the complaint in connection with your call with your clients or where they discipline because of what happened to your client or because of something else they were disciplined because of what they did not do which caused it in regard to your call the death of the client sun right well ok now i have a couple of questions what was was required to be watched every five minutes rounds have to be made because when you're in a single cell by yourself as the courts to where you can harm yourself and no one is going to yell for a jailer or you can get sick and no one is going to call for each other well right and now this isn't the no this is not the one that was something like that in harris county and my other question is i am shocked or i am wondering how a person could have a twisted bow and not ever be in pain or not ever it's per ten i guess is probably what he had although the autopsy report indicates de hydration and there is an ig there is evidence from the hodgepodge of documents i did receive or the plaintiff received in the motion that his water had been cut off  that they relied on their round logs and that was one of the findings on several of them the supervisor also who was dismissed because apparently he was not personally involved although the record shows that he was and we pled that he was but to answer your question that's conscious indifference by definition and the problem i have with the court's order is that he doesn't go in and take the factual facts that we pled and the facts that are in the record as to each officer and outlined why taking all the evidence in favor of the plaintiff this was not conscious indifference and they weren't subjectively aware of what was going on with this of and he says examining the allegations and evidence that can see each defendant separately as required which he doesn't do there is no evidence that either compost pettus coleman cochran or  at any time possessed active subjective knowledge at thompson's medical condition or that any of them did anything to consciously disregard this condition that's a conclusion and the supreme court says in qualified immunity cases that are outcome determinative that stopped the case right there and qualified immunity is judged made there's nothing in one thousand nine hundred three that provides that defense and so if it's going to be a fair and equal system then the supreme court says you've got as a core to at least outline all of the facts taken in most favor to the plaintiff the nonmoving party and show why there was no conscious indifference the autopsy record in the cops to report in the record it is so what what are the was accused of signing thompson's close observation sheet without checking on thompson he made it he was one of the officers assigned to thompson's row but another officer did the road check he stated that he  noticed the officer who did the road check had not signed the close observation sheet so he signed for another officer claiming that he had done it he falsely documented thompson was standing at  a meal my understanding was something i mean the way i read your brief supposedly they brought him a breakfast tray and he ate breakfast and then the next time they brought him the evening tray the prison system as you know about three thirty is when they think is that going to be up at five o'clock and as far as anyway my brief goes on very specifically and i did that on purpose because that's what the law impossible for warriors to to schedule with their schedules and that the attorney general that works out of austin i'm in lubbock where one of our court of appeals justice is from grant that a qualified immunity but i guess the couldn't answer your question i did not take any deposition but louis ask you two things first is do you agree in great with the wrong that these individual findus must have known of an disregarded it an excessive risk to the prisoner's health the judge basically what we're looking at he was extreme on asking you if that's basically what we're looking at the rights to ok now we know what happened to extend the autopsy evidence is in the record what is it and they didn't know that he had it twisted ballet didn't know necessarily that he was writhing in pain is some evidence shown to next period of that's what was he would have been writhing in pain they weren't checking on what is the excessive risk to his health that they knew about what they do about he's a schizo predator he had lost weight he's under doctor's orders for high calorie meal and they also know that he was in a single cell by himself for a reason he would put his clothing into the toilet because that he wasn't there so and still has to be a causal relation between what they knew and the harm that occurred to him so what did they know about him that could have if they had responded more just checked on him and realized he wasn't moving i mean he didn't die it was a living molly has that to his gangrenous about for three or four days i'm sorry that cannot happen in a couple hours exactly and their duty was to check on figure out why and could you imagine he could have been moving around a whole lot where is are evidence in this record that would support what you're saying it seems to me that if there is not something we find in our general knowledge of this kind of condition and mine is minimal this this should have been observable to someone based on what we find is or any doctor's report in here as to what somebody with that condition would have looked like three hours before he immunity which then shifted the burden to miss thompson to overcome their competent summary judgment summary judgment evidence in order to rebut or to overcome the same title or rights of qualified immunity she was required to present know periodically yes they were gone they were supposed to check on him because he's in close observation every fifteen minutes and the record before this court we cannot deny that they did check on him every fifteen minutes excuse for qualified immunity i have ever heard they didn't do their job therefore they were not deliberately indifferent there must be a better argument than that your honor unfortunately that is the argument because in order to be deliberately indifferent they have to check on there has to be some form of me and i only know a little bit about this from a family experience but when you have a twisted bout and you end up with gang green in your belly those are both very very painful things so they don't know you can't expect them to be gastroenterologist but you can expect him to perhaps her down the cellblock if somebody was calling out in pain that is true there was evidence that he was writhing in pain if there is evidence that miss thompson brazil and we don't know because all you've got is a bunch of lying jailers how do we know he didn't yelling pain if they're all lying about you know they're off playing cards in the break room all day think that helps establish the fact that his condition wasn't in fact obvious at the time that he died he was seen that morning by medical professionals purpose i think it was part of his daily rounds checking on him seen that he was ok to give him medication with a person disciplined no because there is no evidence that at that time that mr thompson was displaying any sort of pain each nurse or each or what was the time of the riots build it by a medical person it was eight o'clock in the morning around seven forty five o'clock in the morning before they did the luncheon meal which was at night what happened and that is a part of the record that the plaintiff provided for the court that is within the summary it shows that at that morning he was seen twice the day before he died he was seen by medical professionals also his customary behavior that he displayed in his so was sitting at the end of his body just kind of sitting there and we provide provide a controversy in evidence to shows that other officers who weren't defendants in this case indicated the same type of disciplined for also find the road check sheet this was a check on the officers every fifteen minutes they did not they were checking on him every thirty to forty five minutes sometimes of fifteen minutes the issue with the last meal fired and there's independent criminal investigation initiated by the offices of the inspector general to slowly relying on these documents these discipline areas as the formation of subjective awareness is improper because the law is well established within the circuit that there was disciplinary standing alone cannot establish deliberate indifference or constitutional violations the burden is on miss thompson to develop more she sees me as required to show this object awareness of these officers not about mr dunn observation when i mean escaped forty days to put their evidence and that that really wasn't enough time given the distances involved between son in law back to wherever the prison ones i would argue that he should've shown or attempted to engage in discovery he knows of his burden the court be very clear that this was an issue qualified immunity he knew very clearly that he had the burden to prove his case there's actually an extension of time that we requested it which was a additional thirty days so now we're saying within seventy five days depositions going to be taken in iraq's going to be taken which is likely because he was in close observation of those up individuals do have psychiatric issues but pursued the hip of these officers don't know the exact details of these of the mr thompson's ailments or psychiatric issues and i think know maybe less aware of the pain but i just can't believe there was no pain there was that it wasn't really really painful your honor there's no evidence of it in  so i'm not sure of that conclusion of how much pain mr thompson was in the fact that these officers did not their failure to alleviate a risk they should have which they should have they should have been conducting their self searches every fifteen minutes but they did not under domino establishes the deliberate indifference cannot attach and when we start to frame our argument somewhat these officers should have done they should have gone to see them they should have known that he was in pain that they should have known that and so given these arguments given the fact that the opponent has failed to establish law excuse me the evidence of this objective awareness the mens rea of all these officers that she has failed to satisfy her burden to overcome their right to qualif to do the fifteen minutes check is so they won't kill themselves right i imagine that is part of the reason why though you know i mean you could almost say that when you're dealing with prisoners who are so ill that they have to be individually selden that they're doing the kind of behavior that this fellow engaged in and it's pretty much almost deliberately indifferent not to do your job under those circumstances it's more th but i'm not i'm very hesitant to apply live villainy the officers and certain conditions but goodness knows it can't be a defense you're not doing your job and therefore you can't be deliberately indifferent because you didn't know what happened i believe the standard is what these offices know well that's a problem right but and i agree that that is a sabbat fact in this case these officers didn't do their job properly but the liability cannot attach to matter how ugly that fact unless they were subjectively aware we were not knowing you can read it literally indifferent if you know there's a excessive risk to this fellow's health life if they don't do something but the risk that played out here under certain correlate to the risks that they did know about which is a psychiatric problems so if he had banged his head against the stereo killed himself she was before that he died now or agree that liability may attach if he had committed suicide if he hung himself if he banged his head against the wall to or because those officers should have known the psychiatric issues that they should have been checking on him that's not the case the officers in this case were disciplined of they were put on probation and one officer was actually fired as a result of this but no criminal charges that i know of were levity against any of the all that were to report far from our investigation yes rather and that's been furn and i know the argument as your honor jones has indicated but in order to establish deliberate indifference there has to be some sort of acknowledgement that these officers were aware and that even though they didn't check on them every fifteen minutes did not die from a psychiatric a she died from intestinal blockage of a lock as they know the officers knew about or there's no evidence that they should have known about that blockage and because she has failed to present evidence of their awareness  just briefly on the rebuttal i wanted to talk about something in the court's opinion that was very troubling to civil rights attorneys and that is the the construction of what you have to raise as a defendant in order to properly shift the burden of proof the basan versus have to have a county case a two thousand and one case out of this circuit is the law and what it says is that you have to show in order to a ship the burden to the plaintiff on qualified immunity you have to show a very it's a very low bar you have to show that jack to be in good faith and you were in your discretionary capacity as an officer that's it well unfortunately the lines of cases that have come down since then have been basically anna and there's the brown versus callahan case six twenty three federal thirty to forty nine and it basically says once an official pleads this defense the burden shifts to the pla and establish that he was acting within the scope of discretionary authority so if nothing else comes out of the case i hope that you will clarify what the defendant's has to do it's more because of the trial court picks up on brown and collier and just says you just have to put a one sentence motion for summary judgment we played qualified immunity that's not what brown stands for i the law and that should be reinforced you have to do more than simply have a one month one sentence motion and say we play qualified immunity and that's what the