however your honour's good morning we're here and very thankful to have this opportunity to present this case to you this case involves inhumane treatment of a prisoner slash detainee who was held by the delaware prison system for a period of a nine months mr valdez as you know was deaf from birth and unable to hear and of course therefore unable to speak valdez was essentially given virtually no accommodations other then twice during his nine month stay he was permitted to use a t t y telephone your honor mr danberg was the commissioner of the department of correction and was the chief person in charge of policy but did he know that you know he said when he came in he wanted to have some she's having to deal with deficit don't you have to show deliberate indifference and you have to show his knowledge of something that was going on that was wrong in his you know turning you know deciding to ignore it and do nothing about it y when he got there he knew that there was nothing in place but this happened in two thousand and nine to two thousand and ten and he readily acknowledged that in his deposition testimony that there were no policies in place where this actually was impacting prisoners your honor he said that the department did not keep any statistics in terms of how many deaf he was the moving force in as much as he was the commissioner of the department of corrections and as he did if i may he did finally institute this the year ok if there were no good twenty of us unpunished but don't we have to find that if someone is the commissioner it takes more than that it can't be just they're in a position to do something about it and later they do something they have to know there's a problem your honor we're not confining that amberg we probably need to you know   as i said in his deposition he acknowledged that there were no policies were there any definite mates i don't know i mean how would you know he did not but the type of volume that this prison system dealt with  we said that just in the summer and i think you put your finger on the problems how he might have been involved i don't know that's the point right now going to you to bring somebody to court well with all due respect this you've got to be able to say how they were was missing from his his department scheme he must have no must have known that there were hearing impaired and or deaf inmates in a population that exceeds why  would he must have known that if there were that they were not receiving appropriate accommodations is it that you're assuming that he must have known it and then you're assuming that that he must have known that they weren't getting it off your honor because again once wasn't a lot of analysis done a low but in order to avoid the qualified immunity we need to show that that the defendants  your honor it is clear deprivation and a violation of the eighth amendment the prohibition against cruel and unusual punishment way is that where you're going are you going with the idea i well i  think i'm going to go with with both your honor in terms of the eighty eight made it eminently clear that prisoners and this court in particular made it clear that prisoners were entitled to  public facilities how does that amount to clearly establishing that it's cruel and unusual punishment on the men if you don't give those why you think it was it was the language of judge roth and in that decision i mean that was certainly the established and what i'm what i'm saying to the court is that the rights of a hearing impaired deaf inmate were clearly established through the a d f a and the absence of that causes letter and we laid out a little bit of a chronology point is you although you asserted an affirmative defense of failure to serve properly you participate in the lawsuit had all kinds of opportunities to mention this yet went through the entire case over the course of over a year when you finally decided to raise this why is it not under our case law some cases that was set forth in the letter to counsel is your honor i would definitely like to address this question contrary there are no it is in december you said no other issues and you wait till july when you file summary judgment oh by the way your honor respectfully i believe that was a status letter addressing and i can't really speak for mr johnson my previous colleague on here but i believe he soap service a process objection in their answer lay in the weeds engage in discovery represent that there are no other issues for the court's attention and then after the statue of limitations has run popped up with a motion for summary judgment say they're gone and  that's in effect what what your opponent is saying is what happened here and the cases we gave you in that letter seem to indicate that yeah that's problematic so we wanted to speak to those cases how do you get around those cases which seem to say parties don't get to do that and twelve each isn't a cover for him to do it respectfully your honor to get to the cases the cases sort of presented a continuum there there were certainly cases that were about equivalent to ours but then there were other cases that work far much further along that continuum i would like to say however that we did raise it not only once the service was really raised and jurisdiction was raised twice our answer and generally a plaintiff lawyer is generally comes substantively and made no for attempt to disengage we're even alert the other side or the court to the existence of an objection for personal correct isn't it i believe that's correct however if he had named if he had served even on the day before summary judgment despite the statute of limitations the lawsuit was still filed timely we were playing a trick there but he threw it out for lack of personal really is eighty eight law that prisoners are entitled under federal statute to accommodation for deafness let me just say your honor but i thought it sort of goes back and forth between eighth and couldn't hear the testimony right i mean isn't there just like a fundamental problem with not providing an interpreter to a deaf person at a disciplinary hearing where you're about to give him sanctions put him in solitary we're on our other cases like sand in th process gives you an opportunity to present your side of the story and be heard and he said i was fighting it wasn't my fault here what's being said on the i side and there's no interpreter that's you know it's like half half a loaf implicitly don't you think the process also includes the right to hear i mean if you sure but the here and know what's going on hearing so if you're hearing impaired doesn't it imply that you've got to have the tools to be able to participate meaningfully we are on to the plaintiff was given a written notice of the immunity but my right about that was the burden on well that i think the problem is regardless of who the person is on there is no clearly established right too it would review what the district court did so i guess i need to know the with the district court in error in putting the burden on valdez is to show that his rights were clearly established or was the burden on you as the state to show that reasonable officials affirmative so so it was and it is kind of a yes or no was the district right or wrong in putting the burden on valdes i believe the district was was correct because in order to present its case it's a burden of proof that he would have to meet that these people did in fact  issue is sometimes framed dizzee qualified immunity issue sometimes it's framed as a with this stuff there's not any confusion i mean i'm not confused about this you've got call fight immunity if you can prove you have qualified needs an affirmative defense you've got the burden of proof what's confusing about that but i believe that it's it's evident that there this is not a clearly established law against a certainly not against state individual actors to the extent that schizm who had the responsibility of showing that did he have the responsibility to show that it's not that it is clearly established well it's sort of hard to argue in the in the vacuum of this doesn't exist so we present forward that there is no issue there's there's no established authority that individual defendants can be helped personally liable for this which is it's a very disturbing thing to do for correction senior correctional people at what point do they become personal liable do we have to but they request personal knowledge and acquiescence which i believe is a little treat for example although i don't know that i believe in the sample analysis works for us in this case because in sample there was there were ongoing over detention issues which certainly that would have put them on notice would it not respectful your honor no it would not their grievances go through a grievance process that go up to a grievance chair just because an inmate is filing grievances which many of them do doesn't mean it comes up to the warden level so none of these and and by all accounts in the record that issue was dealt with if you were the commissioner you were warden and you would go follow up if the records suggested that the issue was signed off and resolved did he know was there an awareness that it had been signed o reasonable reasonable manager would have a duty to go any further than that right yes i mean i would just conclude if you could and i would just say there's absolutely nothing in the record to suggest that mr valdez wrists subjected to any kind of cruel or unusual punishment under the eighth amendment which is the theory that's in the complaint perhaps there's due process but that wasn't really that wasn't really the cause of action that mr martin just presented and i don't believe that she's i'm creates a right that can be right that can be held against individual actors if it would be very disturbing for this courtroom pose eighty a liability on individual matters the a d a s written to a part of the state for a reason that as managers they have to my clients have to manage a budget which is given to them by the general assembly if they don't have the ability to provide necessary things for the disabled the correct remedy should be to to hit the state hit the state coffers not to hit individual people this is also a slippery slope at what point would entitle manager because personally liable for mr danberg was he was two years in but the corrections department is a large department and if you believe that many of our adversaries say it amber the commissioner of correction i think we have some rather strong evidence that links in any personal involvement way the other three defend dance the warden of the prison mr phelps as well as deputy warden's kline and peirce and what i'm referring to specifically is a letter that my sister just acknowledged my client sent to the warden addressed as a final notice sometime around october fifth two thousand and nine which was roughly halfway through his incarceration period the letter was sent to directly to the fact that he had been denied accommodations for the first effort of his entire stay up until october and you know whether they handled as a grievance or not they were certainly on knowledge that they had knowledge rather what's wrong with police handle what's wrong with police in the head it says show how does it make libel well being and actually to be fair the police handle was this written directly to the warden and it talked about the fact that my client was staff and that he has not had any phone calls sure but you're not suggesting are you that that prisoners can't jump the grievances and create substantive rights for themselves simply by writing for the work are you know i'm not your honor but this certainly should have put him on notice i believe as in mr danberg i think he should have been on notice already because they freely acknowledged and i must say with callous indifference in their deposition testimony hey we don't have any type of policies for deaf people if we had if we treated them differently we would be discriminating against the general population let's let's stick with what she believes and we're dealing with your which is the idea that the warden is on notice and therefore should have done something and in this case he does do something he passes this on to somebody who's responsible for handling it and i'm trying to i'm trying to chase  theory you've got mr martin for why that is not only not enough but it actually represents a sort of a moving force behind deprivations that constitute cruel and unusual delegate but he was put on specific notice by mr valdez not only easy to delegate perhaps but essential to delegate right because the the the warden can't be addressing each individual prisoners grievances if they choose to write him he's got to give it back within the system that he does that and evidently somebody tells him or lists in the system it's addressed it's been handled  say it was handled rather it just says essentially hey ron you deal with this i don't want to deal with suspend the grievance was had i mean to be a different situation if that's had not signed off on his grievance and had  and said this is wrong what you're doing is wrong this isn't just one thing it's that make it so but we don't have that we have something that actually was resolved and the warden checked it would find that the prisoner was satisfied what's a warden to do