additional court found this evidence to not meet the st prong under former because it applied the wrong standard specifically the court could question question and the attack happened several months after the meaning in that was several months after the  circumstance in this case not enough time had passed the threat continue to be imminent because under the realities of the us our duty and program and attack is harder to carry out we understand the structures of the program create a difficulty for tr coolness to get to lewis therefore the attack was imminent all that was required was an opportunity for travel to be in the near proximity to lewis which was presented on november th two thousand and ten so there is no bright line rule which is what the state incarceration with all the procedures in place that there was not a substantial risk in this case what the record shows is that right with hands behind his or her back his back throughout the right relation they were protocols apparently in place so that objectively there was a low risk is this is the argument or not a substantial risk well in this case the record shows the substantial risk is there was a disagreement between lewis been identified as a security risk group before receive a ticket the reasonable inference then is that when somebody is a member of the security risk group prior to being transferred can be transferred into into northern reason for them to be transferred out of northern under the circumstances of uncertain or in big us mr lewis testified that he the defendant were aware of the july disagreement that the fed and warm lewis of the city could be in jeopardy and that a member of the pure blood would carry out the attack to be sure lewis's testimony could have been clearer but that's for the matter of the jury deliberate indifference because it can or cannot show that the prison officials still take reasonable measures but the district court in this case filter or overworked rather the the record before a student earlier there was a disagreement between lewis and a leader of a violent prison gang that leader issued an order that he was done meaning louis provide for disagreeing with him violating prison gang rules defendant warned us of the threat and also not just that they haven't identified the individual it's that some time has passed everybody is in handcuffs behind their back at all times outside their cell they're under constant supervision even if there was this mega salt you know threat out there it's unclear to me what more could have been done or should have been done or certainly that it was unreasonable or deliberate indifference not to do in this situation  this particular unit had all pure blood senate so to the extent that there's a relief or just a suggestion that they should stay or go and segregated mr lewis from pierrot's that that wouldn't work here because they were up heroes they were in that they were in that unit that doesn't quite answer his question that they shouldn't be put in the same recreation yard at the same time even though they're in the same prison and i appreciate he said transfer but  let's not spend a lot of time with transfer they were put in the same recreation yard at the same time with a known they were your honor yank up behind their backs and also just to call attention this eleven piece before move on the proponent of the threat he's done inmate knowledge and it been transferred at the time he attacked he was in it there he was gone so well i don't follow that this done your honor you don't think that carries some threat well i think that there was some investigation post assault where they determined that it was a standing order left from inmate molecule but handing order that he's done standing by the grown admit that's right your honor but they didn't know it was an order until after they did the investigation which was after the assault they had heard about the threat they well there was two sources how many do you need all your honor you have  in may molly again had said this particular image lewis was john a july he's done in july then you have the nd source is the victim here in may lewis statement is ambiguous really jury question no i think that the court can can decide that certainly as a matter of law they can look at the evidence and say this i mean it it's incredible as a matter of law i think that it would be incredible as a matter of law to say that an issue is what owing is an actual threat an ability on a summary judgment motion we don't as we don't decide credibility on a song you just said it's incredible so i take it that's a credibility well  i think that courts do characterize evidence as either strong or weak on summary judgment i've only come when the last time i believe i believe that well there are a correction officer is conscious of an obvious risk has nothing to do with the st prong of the farmer and informs the nd prong under farmer which is whether or not there is a conscious disregard for the rest went to judge on summary judgment use the wrong standard why wouldn't you appropriate thing be to send it back to him and say you are the district judge used the right standard and make and it was a decision well you are because this court has the in that case your i believe that those protocols coupled with the absence of imminent see in this thread and this case now if  there had been immanency then the war should be done then just following the protocols is that what you're suggesting no no no no your honor i'm saying that i think it's impossible for there to be deliberate indifference on of these existence of the protocols are a complete defense you're willing to assert that proposition i am so that if at this prison the corrections officials learn that on day  thirteen members of this group have said we're going to stab a prisoner x tomorrow and hearing that they still put prisoner x and members of the group in the same recreation yard at the same time no deliberate indifference no deliberate indifference because these measures you really want to go that far well your honor i would say that these measures were designed for the put to to thwart the potential for violent behavior has but they're not foolproof are they well your honor i would say that i would say that they that officers can reasonably rely on them i think i think that you know he said she saw the space shuttle blog on t v i mean they can reasonably rely i think i think that he's the guy in the corner with his sheet of and he's taking the stone and he's sharpening it they say well there's a protocol here we don't have to worry you know i don't see how that could happen because these inmates the only time that these inmates are actually together is on the record was injured wasn't me i'm sorry ana was injured wasn't it was daughter you know when you say you don't see how it could happen this happened things can happen isn't a very good argument in a case where it didn't happen you're saying that i don't think that there is anything that can rule out the possibility for the incredible to happen why not why not just making sure that when a threat from a gang member is received that the guy is done you don't put them in the same yard at the same hour your honor i think that you can't do that they didn't do that in this case at least for one reason which is they didn't perceive that there was a threat to this man they didn't see it and that's that that of course raises the question whether they should have but it's not that they can't prevent at least lessen the risk no you i don't think that's correct that's very risk putting them in separate either separate yards at the same time or the same yarn a different that's what your honor but whether or not they should have appreciated the risk is a negligence issue it's not a deliberate indifference issue well it sure it's not just negligence i grant you that and the question then is on these facts were they in different you're just saying they weren't but that's a long way from saying the protocols take care of the case now run a very different issue that's wrong i think you're wise to move but you were st you telling us the protocols took care of it i think well i think that in this case i think i do think that the protocols  because they're designed to thwart the potential for violence stemming from gang affiliation that they pull could a finding of deliberate difference today preclude the possibility that there could be an assault would like to make your honor is that this case does not meet the farmer standard and the judge of judgment of the just the course proper properly affirm for three years this one is because this threat was uncertain and  group of people known for violence in prisons says this fellow is none that doesn't set off alarm bells somewhere well  me based on his twenty years of experience as a correctional officer dealing with that type of organization gang affiliation for a leader to say done meant that he was going to be terminated from his gang and maybe a jury would agree with that and  maybe the jury would think he's just saying that to avoid liability the way many defendants do in the world skews maybe but it would still even that normally we have juries decide is he to be believed when he says i to bash his head and next time i see him and you don't think women leaders and i read some ominous overtones for violence i think that it's going to demote him in the hierarchy of the group we're going to take  court the the four months that that elapsed between the july incident and the november assault restaurant but as i look at the record that we have in august or september of two thousand and ten which is only a couple of months before lewis's is his warrant by swiftly and and  run out of a possible problem your honor it's that's not long at all and also four months one is four months when you're in that circumstance and it takes a while to figure out how you're going to  some then why in august or september which is only two months before this louis get these warnings well in everybody's co existing so well well that's you know that's a really good question it makes it sound like the testimony of lois was maybe incredible however looking at the deposition and what lewis is saying he's speaking of the july incident he's speaking of he's claiming he's  told him about information he learned in july so there's no new fresh threat oh it's ongoing no it's it's it it's eleven time in july and so he is taking him aside just before his transfer to a different unit to say by the way there's an issue brewing which to me it seems a little incredible but you know we're not juries you know the side that i ask you a different line about what might have been done is there more than one recreation yard in this prison not that the not that these inmates were were go it's joint appendix page ninety nine dollars in the administrative director there was another yard in which this victim could have been spending one hour a day there is another opportunity they could have put  all by himself for one hour sure it outdoors in the yard right that they didn't know there was a rug from any member of this group yes they didn't know there was a threat times this may have happened in the past to give an indication where there's this is an ongoing problem or whether the procedures are not good enough but the fact of the matter that in this case the fact show that the defendant had this ongoing threat looming over us had and then we're not saying that the particles are not sufficient in the general sense to protect inmates on a general sense but on the facts of this case when there is a disagreement with a violent gang leader and that by linking the issues the threat maybe those procedures were not simply good enough all the evidence shows that mr lewis met both prongs under former according to district court or should be vacated remanded thank you thank you both your arguments the court will reserve decision the final case on the calendar