morning morning i'd like to reserve five minutes of my time for rebuttal if i'm right or i am the attorney for the plaintiff and appellant larry richardson mr richardson is an inmate in the michigan correctional system and back in two thousand and nine while an inmate he was threatened he reported these threats to prison officials he requested protection the request for protection was denied and he was stabbed by other inmates he was then transferred to another prison he was threatened again he reported the threats again he requested protection then they were protection was denied again and he was stabbed again convicted felons like mr richardson odette to society and they can serve that dead by being incarcerated but they nevertheless have a constitutional right to be free from cruel and unusual punishment and that corresponds to a duty on the part of the prison officials to protect inmates while they're incarcerated serving their debt to society this case concerns mr richardson's claim that the defendants violated this duty and violated his rights by failing to protect him when he was stabbed for the second time in a month despite a prior stabbing prior verbal threats prior written threats set to the prison administration and also violated his right when he attempted to transfer him to a facility where his life had previously been threatened it would seem like this appeal probably and is on the question whether a jury based on this record could find that contrary to what the prison officials are saying now they those officials in fact in for that he was subject to a substantial risk of being assaulted as opposed to  subjectively thinking the officials that he was fabricating this whole thing and so i'm just curious specifically what evidence would you point to that would allow it you're to  say i don't believe what they're telling us now about thinking it was a fabrication they actually knew he was in danger or inferred that he was in danger absolutely what so the first group of defendants year are prison officials at the prison where mr richardson instead for the second time we have different officials from different prisons that's correct so the first group of four which are defendants in the dough mansfield bjrn formerly swift and robinson were at chippewa correctional facility is where mr richardson was stabbed for the second time and the fun it's all testified that they had knowledge of his prison file his record in that record at the time he requested protection would have been several requests for protection based on threats from the gang that last thirteen again would have been a written threat  from the same gang there the his record would reflected that he was stabbed at a prior facility as a result of an assault from a prisoner that's what the record reflected and there was no notation and any of that any of this prison records that anybody suspected these stabbings were self inflicted is that correct i don't believe there was at the time and in fact i think there there may have been at the time markings to indicate we can't prove that it's not self inflicted so if to the extent they reach any conclusion on that they couldn't with rule out that he was assaulted by another inmate but the record did show that somebody thought that might be the case but couldn't prove it i mean it didn't come out of thin air the that they meant we can't prove that it's not self inflicted that's that's true assumes that somebody thought it might be self inflicted that's true you have to make it a different showing or a specific showing as to each of these defendants i mean and you know in section one thousand nine hundred three cases police officers for example we don't just sort of herd them all together and treat them same i mean we look at the evidence as to each one should we do the same thing here i think we should and i think there are questions of fact that will mean for each defendant and i think that the record does reflect that each of the defendants separately had an opportunity to review the information presented to them making when making a decision on mr richardson's request for protective segregation let me ask you this we've got some evidence here which if we take it in a light most favorable to your client which is what we have to do it would seem to support the objective prong necessary to prove your case  but all of the proof on the subjective and that is that it was deliberate and sort of callous disregard of this risk seems to be based on hearsay testimony that is his testimony that a prison official said something to a more you know whatever all of that comes out even on summary  judgment and if we're left i mean what are we left with as evidence of a subjective intent just to just to recklessly or callously remain indifferent i mean they they did put him in protection several times they did move him around where is the proof of subjective what was intent here sure as this court said in the street case one of two federal thirty eight ten the very fact that a risk is obvious can be enough for a jury to find that the defendant was deliberately indifferent if the risk is obvious enough and the defendants are aware of everything  that supports that obvious risk a jury can find that the defendant acted with deliberate indifference i guess that the problem then is how you did how you define obvious in this situation it seems pretty clear that those letters may have been forwards to most people who are out to get somebody in a prison don't write the prison officials and say we're going to get your prisoner it just you know it's it's borders on the per passenger as well that's what i think the hamilton versus i would be case of this court from two thousand and nine is instructive in that case there was a letter from the the issue here is what is the evidentially basis that they actually drew in front i think the defendants have testified to the fact that they thought the letter was not legitimate i believe it was  so you need to tell us what your evidence that they actually saw the threat with legitimate and i drew that inference and went on and disregarded it  i see i think i would propose that the failure to ever consider it as legitimate was a failure was acting with deliberate indifference would i mean you have to show that they're basically lying when they say that they thought it was not legitimate you have to show that they subjectively thought it might well be legitimate but they just didn't care and now they're just saying oh no we didn't think it was legitimate you have to belie that and i mean what do you have to belie it well we have record the record from other defendants sa we can't prove the letter is not legitimate that appears in the record i believe it was an officer both does that show there are lying when they say we didn't think it was legitimate it shows that they're not respecting the results of the investigation which couldn't disprove the threat and then still just resting on a hunch that it wasn't their sent mails missing from the record and that is in the hamilton case everybody knew there was an area in brotherhood gang in the prisons and in this case there was a lot of testimony by the prison officials that they'd either never heard of him as thirteen or they had no knowledge that it was operating in the in their facility i mean there's no proof that there was a gang even know what time was up man responds purely or first there so some of the prison officials testified that they have heard of members of inmates saying that there are members of the m s thirteen gang now it's not tracked by the prison as a security threat group but other defendants testified that that doesn't mean they're not actually present it could be that they're just not track to the security threat group and mr richardson's own experience of being threatened by someone who's telling them he's in the us and he went back to hear say well but it they may not have actually been in the gang but that's at least what he was told ok all right well you'll have your rebuttal thank you good morning your honour's had in for cassie appearing on behalf of the defendants dubious non credible claims of threats that are give the appearance of manipulating the system in order to obtain a transfer cannot be the sole basis for  obvious you can't ignore it so you have a man who's been stabbed won and in the letter writing him why doesn't that fall into three categories sufficient by a very  because even taking that into consideration i would say that there is another step after that that even if it was so obvious that they could assume that the corrections officials had knowledge of this threat that the next question is whether or not their actions  reasonable in taking in how they're investigated this in it would be our position that the actions taken here were reasonable so what the defendants did first and the three main issues are that the the threats that were presented in the information presented by mr richardson could not be verified what and he provided so little information that the investigation couldn't go forward anymore the second issue is that the video footage of the alleged incidents and i wouldn't even classify these as a stabbing but the video footage of the alleged incidents didn't show anything happening and third there are problems with this letter as this court is aware and as judge john tree has indicated why is it that you think the stabbing the stab wounds or whatever are themselves are not a strong indicator that he was attacked i think two points one referring to the video mr richardson was able to provide information on the on the rough dates in the corrections officials were able to look at the video evidence and mr richardson indicated that they had occurred while he was walking to chow hall for example with the wine and it was in a large group of people now despite the fact that it was in a large group of people mr pritchard seen cannot identify anybody that was in that area but i mean my question is why doesn't the fact of a two inch laceration on his that goes through his winter coat and his shirt on his back you know so he's not necessarily seeing it why isn't that sort of you know res ipsa loquitur sort of as to whether he was assaulted in there who are in danger of assault and in other words why do you think the stab wound is like it's well fraud is what that would seem to boil down to because turning to the video evidence and the investigation that was a part of the incident there was nothing to cooperate that this let's say he got he got shanked through his liver ok and he reports with that with the prison say well we don't think anything happened here because we don't have it on video not necessarily no well not at all not at all no yes so so it's just a pet first you look at the wound and either the wounds sort of corroborates his account that i was assaulted or it doesn't i guess what i'm asking is why do you think the wound does not itself corroborate an account that he was assault because there's no evidence here that it even occurred in this large group as he's saying that it was i think the fact that he had the wound itself i think judge daughtry indicated that there is a taking the lights most favorable to the plaintiff probably a legitimate point to the objective part of it but that doesn't end the analysis i've mentioned earlier so the also turns the subjective i mean how do they think he got i guess what i'm trying to extract from you is you know what this was like a scratch she could easily done it here's evidence that he could have done it himself i mean if you don't have that that's fine but i think you know if he presents with  some kind of stab type that would seem to conclusively show that he's been assaulted and probably is you know in danger of being assaulted there you add asked me how do they believe that these injuries occurred i believe there was deposition testimony that they believe that they were self inflicted because of the location of the shuttle the cut on the shoulder and how it occurred in the fact that mr richardson said it occurred on a specific date at a specific location and when they checked the video there was nothing on the video showing to cooperate his he received treatment so you know yes and i am we're not contesting i want to be clear we're not contesting that he wasn't stabbed or and he thing like that i think the documentation like you mentioned he received medical treatment there's medical records showing that he did suffer injuries i think the point of my argument essentially that i'm trying to make is that the actions taken by corrections officials after everything were reasonable and that's part of the analysis here because they took this they investigated they requested that he file the protection for requests for protection they moved mr richardson to protective segregation they and they placed him in there while they were talking with witnesses they contacted as much as they could so i think for example one of the questions was raised as to and thirteen gang being in the facilities all together the investigation they discussed this with the security threat group needed to determine whether or not imus thirteen had a presence that anyone had heard of and the department of corrections across the state and nothing came of that no one had heard of the as you mentioned no one had heard of them as thirteen either at all  or in a facility and so there were a lot of steps taken in this investigation and in order to verify anything and the plaintiff is relying on the hamilton case and i want to kind of further clarify some of the issues as i think this court has already indicated there are some distinguishing factors a couple of other issues to distinguish with hamilton is that as the scores and mention the letter in this case went to the inspector was addressed to the inspector and was signed by the gang there is testimony that is said that is completely unheard of no one has ever heard of a gang that wants to cause harm to a prisoner or another prisoner that wants to put a hit out on believed didn't the supposed to have them the prisons that were listed in the threat were all level two facilities mr richardson was a level two prisoner at the time it every level in the upper peninsula the other four facilities that were not listed are either level one four or five with that he turned to level four of ventura he was and it was during the course of this litigation that all of the facilities eventually at one point or another either through the letter or through this litigation every facility in the upper peninsula has become off the table and he has to go downstate and there also is testimony speculation as to that that when a prisoner says he cannot go to any facility in the upper peninsula that raises flags because if the prisoner is feeling threatened in the upper peninsula what makes why is the upper peninsula the difference your argument is based on his request of court to be moved to  out of the upper peninsula there were other requests that transfer in the in the preceding advance he he requested protective segregation which is very different from saying i can't say anywhere in the upper peninsula take me that near him that is correct so it's and that's why it's at some point or another either with the letter order at some point in the litigation it has come out that he that all all of the facilities in the upper peninsula are off the table essentially let me ask you this just as a matter of curiosity i don't want to wander too far off the record but there's something in the record that suggests that in the end they wanted to transfer him back to newbury and he refused to go are you allowed as a prisoner in the dock to say you don't want to go to a certain prison not just and i knowledge i can't speak to how one way or the other but i would be hard pressed to say yes well that i've never said just an allegation that is not substantiated by the record or am i going to get into the record and find out that a person who can say no i don't want to go to newbury and thank you very much i believe he had refused and and i'm sure if i am i don't  want to misspeak so if if i'm corrected but i believe he had refused and he wasn't transferred to newbury is he is that allowed under policy no ok at least to my knowledge that part of his allegation i didn't hear your first were refusing to transfer that is my understanding and i'm going to yeah but he's but he was allowed to refuse even being punished i mean you're not nobody picked him up by the newbury so where did he end up at the end of all this and has he been harmed again by anybody to my knowledge no and i have as of i don't know if something's more recent but as of two thousand and fifteen i believe he was at paragon correctional facility which is in the upper peninsula and i am not aware of any additional allegan level four is it that is a level one and five i believe ok thank you and so i want to again just kind of emphasize the reasonableness of the actions that were taken here by the correction officials and because again as i mentioned that that is the standard that is  ultimate question as to whether or not their actions were reasonable in this case and they were because the as i mentioned the video footage could not verify anything it did not show any injury occurred the  to look for this sorry as i'm hearing that back yes i can understand i think there is i believe there is video thank you  yes the medical descriptions of these wounds are in the record i take it i believe they are if they're not i do have them in front of me as well but i do believe that they are a you have an indication of where in the record they are off the top of my head i do not i would be glad to get that if needed next question is the original letter from the gang in the reichard it is not  because there no one has been able to find it to be honest there is testimony about the letter that is in the record both from depositions and from other exhibits plaintiff has admitted obviously that the letter it is real in so there is testimony about it but the letter itself during discovery went back to find it could could not be located and so taking with all of this into consideration taking into consideration the investigation that occurred all of the questions that were asked the lack of information that was provided by richardson the question is then whether the correction officials viewing all of this at the time that they had it in front of them were reasonable in their actions and these corrections officials were i don't know it's this isn't negligence i mean it's whether a jury could find that notwithstanding some of the things you pointed to these officials in fact and for that he had a substantial risk of assault and they just didn't really care very much that's that's a question and the question yes and your honor that is correct and then the question is if they actually knew of it if they responded reasonably and if there was any question of fact to the jury that they'd responded reasonably posit that there isn't in summary judgment was properly granted in this case because of the reasons that i have outlined because when you take everything into this consideration there's no evidence showing that they are unreasonably disregarded this risk that they acted with such a malice and an intent to just disregard any risks that were being presented to to them by mr richards that they investigated these foley they asked him questions they placed him in protective segregation why they were doing all of this investigation and cooperation and ultimately nothing came of it and in as i had mentioned that claims like this cannot be the sole basis for obtaining a transfer in a correctional facility in claims that a parent are clear that this is just an attempt to manipulate to go down state to be closer to the two friends and family and so according i'd like to first address the idea that mr richardson didn't provide enough information to us when reporting these threats therefore the defense tried to investigate but they want to fire as they could so they just threw him back in general population where he was stabbed for the second time mr richardson you know when he was first transferred to chippewa he was brand new there he didn't he didn't know the names of inmates he didn't know where they locked and he was threatened for the first time within a few days of arriving there in the record reflects that the record also reflects that even prison officials resident unit managers who work closely with the inmates can identify everybody that they work with by name not able to investigation that's right he was brand new to the facility and he said this is the ethnicity the here are the two nicknames i heard and they've threatened me and by the way i was just stabbed a week ago and they apparently so they say investigated and were unable to find anything so he was returned to general population and that's where he was stabbed with you can see that they did perform an investigation there definitely some find that this is all just a front for we want to keep him where he is and we could care less if he's going to be assaulted i think a jury could find they just went through the motions they were pleased to not have enough to go on to complete an investigation i think a jury could does that as you can disagree with the premise of this question if you like but it would seem like these letters at least as they've been described this morning and as i recall them kind of on their face are pretty dubious that they're authentic and if that's true would nat be something that might make it harder to think that the officials actually thought this whole threat was was true i would say assuming that it's true that you're right but i disagree with that i mean yeah and i don't believe that's true and i will say it's an important factor that the letter was in the defendant's custody and it's since been destroyed the only record we have of it are some notes referencing it from the time but we don't know if there's indicia of credibility in this letter fax that mr richardson himself might have known about might not letter that i am aware of that prison officials were aware of at this time in october of two thousand and nine at chippewa correctional facility i believe there was a later letter but that's not at issue for the the second stabbing saw it and somewhat of an idea of what the content of the letter was based on records a second letter in the record is there not supposedly from the gang yes yeah but that came at a later time yes but looking at did briefly address the tapes the tapes have all been destroyed now we don't have an opportunity to review them we have to take defendants at their word that they reviewed these tapes but we don't know what areas of the prison  they review tapes of what time periods exactly we don't know any of that and there's also no tapes of mr richardson harming himself or fabricating that so if there's to some there's any inference to be drawn from a lack of tapes it should