such that they might give away some state secrets i'm not sure that i what the point is i misunderstood your honor i thought that the only public recording and accordingly found that the defendants whose sole responsibility was to consider his confinement in the dry cell and let him out when the security justification had lapsed were not personally involved in the violations wonderful he got out here's a question that i have yes the way this case is breaking down for me there's up to june fourth and then there's june fourth certainly and i wondered if you were thinking about the case you would concede that there's no viable generation clean or conditions of confinement claim prior to june fourth because there's no way to ascribe knowledge to the p r c members prior to time on it pair put articulate for the record if you would how you could describe knowledge to the p r c prior to june fourth yes so there's there's a line of doctrine and it's discussed in the brief about knowledge and acquiescence and  to the extent that they acquired knowledge of the conditions prior to and forth and then don't do anything about it that that's acquiescence for the purposes of personal involvement in violation even the record demonstrates that they had knowledge of the conditions before june fourth well some of the conditions are the type that we carried on the whole the whole time and one of them in particular that we're going to talk a lot about is being chained to the corner of the bad continuously the isn't as applied challenge it's not a facial challenge so i think it's possible to think of that particular violation as different from my client partly because of his size the fact that he was six feet tall meant that he couldn't stand fully upright asking us to make a ruling based on the handcuffing or are you looking at the unsanitary conditions that is also the subject of his testimony to be clear i think the actual consideration is as per the roads and  think let's take them a little bit differently because i think there are things that were that they could be inferred to have knowledge from because of the nature of the the dr soner and their knowledge of the dr cell and i think there are some other things that they could have observed in the moment when they were conducting the hearing from the front the front of the cell the fact he couldn't stand the dirty smock and the mattress all around with an observation how do we know what we can see from south there's nothing in the re e that particular officer wasn't even an eye shot of what was going on it was it was your shot only and so and he was still inferred to have knowledge of what was going on and i think you did your client doesn't have an obligation to produce evidence  fact that he could not fully stand operate i think the fact that the fact that the smock was too small and was dirty and didn't close in the front of him i think i think you can infer that they that they saw that and again on the summary judgment posture i think in particular to the extent that there's a dispute i think it should be resolved in favor of my client i also think that the to the extent the cell smelled of urine and feces there's testimony in the record that you know j one sixty nine i think that's also that also a fact that this posture should be resolved in favor of my client in the sense of that being clearly evident too but i want to go back to your your original question sir kicked this whole thing off about you know to the extent that there's a line of demarcation a june fourth you know we're talking right now about the the preparing for stuff but i think it's important to note that first june fourth itself up there and they're continuing to hold him is a key part of the violation itself  hope and a variety of other cases talk about the penal logical justification and and that when there is no you know logical justification conditions that that would otherwise be justified by security interest are no longer justified i think there's two different avenues to to pursue under the command here one is for the conditions in intolerable pursuant to be and then and and whether the continued confinement after june fourth without being a logical specifically to find the right issue and this is one of the reasons that the district court was in error to find the right issue as you know in compliance with policy and that's wrong for a few reasons i mean number one of it as even the defendants c they did not comply with the policy fully but moreover the right at issue and the way that they did not comply with policy extends to holding him past june first when the x ray happened but certainly june fourth when these particular defendants have knowledge that he had had twelve contraband free bell movements and that there was a clean x ray and continued holding him anyway tell me where in the record what they actually reviewed because with the deposition transcript doesn't they've said at one point that they should have knowledge of all of the medical checks that happened to show that they knew that things were fine but also in their brief we are not and there is no brief absolutely but they but they they say they would like the benefit of the medical checks that they have allegedly showed them that things are fine but would not like to also be held accountable for the record of the twelve contraband preval movements which are also in those same medical records similarly be the clean x ray j one sixty two and j three fourteen j one sixty two my client testified to having been told by staff that he had had a clean x ray and i could sing the taylor which is not the brief but is three sixteen f thirty two fifty seven at two seventy which is a decision from the court in two thousand and three makes clear that even the deposition testimony of one prisoner witness is tice tyson miller yeah say they don't remember why we kept garman's the the only knowledge with regard to government is whatever it is six  even under the dispute as to exactly what he told them when they when they showed up at the cell even under even assuming that that's disputed he they say that he didn't tell them about the conditions and that's  and that and that's fine he admits he didn't tell them about the things that he did sure although i again i think the you know the shouting at them down the hallway is a dispute but for the narrow purpose of trying to tell them that he did not have contraband in his system the fact that he attempted to tell them about the fact that he was contraband free even though even in that that section of the deposition that's not clear as to what he was telling them it's clear that he was prioritizing trying to tell them that he was contraband free that he had clean x ray and they should have gotten out and that and that puts that gives them even if you don't impute to them the knowledge that apparently everyone else in the facility had that the x ray had been cleaning him trying to tell them  you know the hamilton case in the circuit you cannot fail to conduct even a rudimentary investigation when you're when you're on notice something like that and so the fact that he tried to tell them again a summary judgment i think is more than enough to create a genuine dispute of material fact as to whether they had knowledge of that at the time and that's again entirely separate from the fact that they knew that he had had twelve contraband for example and just greenaway i would also like to say sort of gone through the defendants testified at j one seventy three that she came by the cell on several occasions so especially as to the conditions but as to this she may be have the most interactions with him of any of the defendants and in addition in his deposition with scribing have a number of interactions even outside of the the p r c you mention on a couple of occasions the twelve contraband free yes i have my own personal intuition about twelve contraband if it's ok if i look at the suggestion so i actually think of the type of the testimony you're talking about actually i think it's really important in the sense that it's very unhelpful because it is not made that testimony was not made in reference to my kind  particular he says that that's the longest that he's that he's seen someone and that was not made in reference to an inmate who had taken as my client had an enormous dose of laxatives in an attempt to help himself out of the  if you're if you're you know if you take laxatives and take other affirmative steps it's not clear that it's not clear from his testimony certainly but the inmate in question that he's talking about who took as long as ten days had taken ten or had twelve contraband free bellman's and again to the extent that there is a question as to whether or not you know what the significance of twelve contraband movements or ten days is that should be resolved in favor of my judgment posture i think it's i think it's more than more than disputed that twelve conference preval movement is evidence that you have had a number of opportunities to pass all the contraband out of your system and because there as my my friend does very well his argument is based upon a completion of the p p r c and security and medical and what's key here and what the district judge correctly keyed in on was the fact that the p r c did not know until june fourth quite frankly that he let's assume for the purposes of our discussion that we're going to look at june fourth going forward i'm sure that myself my colleagues will have other questions prejean for for purposes of our discussion right now june fourth ok let's whatever whatever that knowledge was he says in his declaration that the medical department informed in the times is x ray revealed the foreign body it appears that the record when you look at the radiological report that's a reference to the his body but it doesn't say in the report that it's a bullet but in any case that's what props that is but there's nothing in the briefs in the record that i can discern maybe you know differently that says that probes somehow relayed that knowledge to any of the four people on the p r c and i i'm not aware maybe you can help me of some legal machination that would allow that information from probes to be ascribed to them that's number one number two dependents tyson miller testified in your depositions that they did not recall why they reveal any of struction and several bowel movements occurred thomas should have been released now if unless i've missed something new to help me with that that's my understanding of the state of the record with regard to the knowledge of the p r c june fourth going forward on the x ray if that's so then what could the popular logical justification to keep thomas in after june fourth what would  who took the x ray told him that she found a bullet the x ray however as we all know because we spend a thousand dollars an hour to have a radiologist look at the x ray was done by a doctor lou who wrote the report finding an eight millimeter foreign object that report was not read by my clients because my clients aren't doctors they wouldn't be able to read a radiological radiology soft tissue mass or pathological calcification there's an eight millimeter opaque form body over the gastric region though some technical terms of there but help us help us with the knowledge that's why they have doctors to look at that and then to inform security that that information was relayed to our four defendants here security captain provost in his dept and declaration said that medical told him although my defendants did not provide a detailed explanation in the report they did indicate that it was still ongoing investigation the dis that there was still an investigation ongoing i checked the box it said continued investigation and they say to the provision exactly the a t m that was based upon how in the policy i'm sorry in the policy the way this works is the p r c will take recommendations from security and from medical that we have to infer because the policy says they take recommendations from there they must have taken recommendations access to the the medical information except but we there's nothing in the record that tells us in fact the did and that's and do you want us to just accept your statement that they would have or should we infer the opposite which would be  treating him and the case law school b b o s a official may rely upon a the medical treating an inmate that that treatment is proper and that's where this conflation i think causes problems because you have the investigation is not being done by the p r c the investigations being done by security that's in the i'm going to interrupt you and i'm going to beg your pardon ok because i think you're getting off the topic that we because i want to bring you back and i'll give you whatever time you want to get back what you are saying but i think it's at least for our purposes a little off the top you cannot appropriately or properly impute knowledge of the x ray to the four p r c members there's no pain you logical justification and i think that that takes care of if you will the generation clearly so with that in mind do you can do you now concede it appears that you do i could be wrong but it appears that you concede based you might argue that you can impute knowledge that thomas was being treated every two hours or seen periodical but that doesn't speak to logical justification so help me on that specific the policy provides that as part of the p r c hearing review that they talked to security but we know that they were there were elections of the policy so if that's if you want to do this on this point then that means every time there's we got to go see the other way we should do the same i don't understand well no your honor and the at the end of the day this court that there is no evidence to suggest that the p r c ever spoke to anyone before they made their decision then i will in the normal course of operation has to be taken into consideration and they wouldn't even know why he was in there unless they talked to the department who was actually conducting the investigation and so they weren't even know that investigation was ongoing if they didn't talk to the department that was conducting the information so if we can unless this court is willing to infer that they just came in they didn't talk to anyone and without any knowledge they check some boxes then yes i have to concede the point but i don't think that that is a fair inference that's certainly herring because to a certain degree it doesn't matter what the x ray actually said it's what was relayed to security which was part of this process and well the record on this isn't entirely silent because we have the testimony of two of them right and who when asked why did you keep them in the dry cell after june fourth it in say we heard about the extra reporter we talked to security they said i don't know i don't remember yes your honor because it was two years after the fact and the p r c doesn't just handle swallowing cases they handle suicides they handle so harmed they said handle protective custody they handle misconduct while other investigations are happening they see a lot of these cases so what's the purpose of the p r c s the purpose of the p r c in this circumstance whether it makes if there's a reason to continue didn't force something or what is the what is the what is their purpose there were all is to be a check on security to make sure security doesn't keep and in a person in a ministry of custody one for no reason and two for too long so the are you explaining to us that the p r c is not checking to make sure the conditions of confinement are commensurate with the policy or if it and its standards are anything like that is are you telling me that that's not their job yes your honor and i will f the the court opinion at page twelve district court in the district which i'm sorry the district court's opinion and that comes from the public policy itself which is the  the conditions because this cell was in the infirmary the conditions are being handled by consensually medical the investigation is being handled by security is there something in the record that would tell us the cell  honor and is is there anything in the record that describes if it's in the infirmary what one can see when one comes to the door because we have something someone testified they came to the door i believe that mr thomas testified that there was a window but as to how big of a window i don't believe that is in the record please help us oh you mean the window because there's a window that is the door to the cell no no no your honor that there is a window in the door oh as well i don't doubt  e he testified that he spoke through the door and as the district correctly related problem the testimony he did not at any time complain about the conditions of his confinement to the p r c now the p r c is not responsible for the conditions of the confinement but i would concede that had a complaint been given to them it is their obligation under the the policy was yelling complaints so there's nothing in the record that says and correct me if i was but there's nothing in the record that i can recall that says they  properly her by that that the purpose of going to the cell is twofold number one it's a half a conversation with  thomas and number two it has to be in part to see the conditions otherwise they couldn't possibly make a determination if continued placement in administrative custody  it and you'd agree that if the p r c its purpose is to see mr thomas and talk with them and the purpose is to determine if continued placement in the ministry of custody  warranted they'd have to look i mean if suppose he was you know naked in the corner and nothing else in there i mean it would be on them to determine whether administrative custody was warranted so can't we appropriately infer that they must have seen the conditions in which he was in in order to have a conversation with him no your honor and here's why ok the when we discuss about whether continued confinement in the ministry of custody is warrant that doesn't go to conditions because that's not the p r c s purview that is whether the justification original remains and as we argue based upon the security saying that medical found a foreign object in the gastric region and that there was seven movements before the x ray and five after and they haven't found that foreign object there's no evidence that anyone told security or the p r c that this might be a bullet lodged it's somewhere in the gastric region they use that and said ok well seeing as there is a foreign object and we haven't received it we haven't recovered yet does it make sense to continue to minister to custody per a short you know some time thereafter that is the determination that they're making the whether the conditions whether the infirmary guards are not doing what they're supposed to be doing whether the medical people who see him every two hours are not doing what they're supposed to be doing that is not within the purview of the p r c although in because an inmate in his situation obviously doesn't have any piece of paper he can't possibly grievance the p r c is the place that if you have a grievance you're to bring that up to him but that isn't their focus their focus is is this person still suicidal is an investigation still going go on is if this person is self protection is that danger to this inmate still ongoing well focusing in on what you've identified a reading from because i was i was going to do it from memory but oh it probably a better thing because we we have your memory we do yeah now this is three fourteen one moment i can read for you however once the x ray failed to reveal any obstruction and several bowel movements occurred you should have been released sooner that's in the facility manager's appeal response at three forty and then in the final appeal decision  three sixteen the following quote as indicated by superintendent carmen once your x ray failed to demonstrate that that any contract demonstrate any contraband and you failed to eliminate any contraband you should have been released from dry cell placement and for that reason your grievances  he said was that the x ray which we know where are you getting that from what he actually said you're right he said to them three fourteen once the x ray which at this point clearly he must have seen failed to reveal any obstruction not far in bottom right hand and several bowel movements occurred that isn't necessarily the bow movements before do for i see so you're  knowledge of the x ray information i thought that's what you asked us to infer and that is that knowledge would have included presumably the presence of a foreign object above the gastric area something along those lines right so i'm not sure how i can reconcile what you want me to infer from propes and what the officers knew of the defendants on june fourth with what was said around august fifteenth or memorialized around august fifteenth here's the distinction  captain propes did not say that he relayed all the information on the x ray right i think we have to agree on what he says or that medical relayed all the information to security what he says is that medical set told him that a foreign object had been found that's it nothing about him and a lack of obstruction so we have a individual who is looking back at the situation and saying that had i had to do it over again maybe i would do it differently and that quite frankly gets us into gear the banks territory where it's not a dispute fact so much as a disputed matter professional judgment and there should not be are we should not make prison officials afraid that if i am on the side of security i'm going to that is was not clearly established as violating the now this is a very and i'm going very long on my time so please end up at any point but being judge disarm perfectly clear on june fourth with respect i'm not i don't care about conditions for purposes of this question it's all about duration on june fourth when the p r c decided to keep him in there the sole justification that they had was that that there was a foreign that the radiological report in a cave that there was a foreign body in his abdomen right is there anything else but based upon the evidence no and is that was that that was not contemporaneously recorded anywhere we only learn about that through the burbs declaration later is correct ok my next question is i'm going to ask you the same question i asked your friend which is how do we how without any medical evidence or or any evidence how do we process the fact that there were twelve obstruction for he contraband free of dominance well i don't believe that that is a proper question to the jury because the jury is without any kind of medical evidence that says that this is impossible so it's so impossible that there could have been anything at only the most incompetent of  official would have thought otherwise i don't believe that we the court should or that we can draw a straight line and say we're going to count bowel movements and when you hit a certain point then you have to let him go regardless of anything else biology there are no clear lines in biology and so if this case was the situation where mr thomas's attorney had gotten a medical expert or any evidence to suggest that the number of found movements with way beyond human possibility then i agree there's a fact but they don't have any there's no evidence on that the only evidence we have is the testimony by superintendent tie that based upon his experience he has personally experienced seen an inmate take more than ten days which you know as all evidence i'm sure is self serving it is under oath so it is true but that's the only evidence we have and so i don't believe there's a dispute a fact because there's evidence on one side enters nothing on the other side of it i just  put aside the hiv so for the other ok young is is different because this is not a situation in which mr thomas is having to deprecate in a corner the testimony is clear that every time he used the bedpan it was taken away within minutes every time used to your and it was taken away within minutes and how do you see the evidence is clear when he provides testimony that's in i mean how is something definitive if there's a genuine dispute i think it becomes very problematic your honor if the claim of can create the disputed fact within one test and then you can always defeat summ window you would not see a lack of toilet paper because there wouldn't be any toilet paper in there because there cannot be anything in there for him to use to hide or destroy the country that's the whole point of the try so same thing with hand sanitizer wipes so unless the p r c was watching him deficit and then eat and there's no evidence that they did they were there is no evidence that they would have known about not providing  sanitation once and again i go back to the real reasonable realize that this is an inmate and this is why this is distinct from quite frankly most if not all of the cases that both sides  this is a situation which medical is seeing him every two hours and the p r c can reasonably rely absent some evidence to the contrary that that is in fact occurring and i find it telling that my friend cites twenty cases and i distinguish and i cite twenty cases and he distinguishes them that tells us there is no clearly established law on this issue otherwise we would have i would like to make two main points on rebuttal and then i have a couple of serve subsidiary points first cutting through everything that my colleague just said even if what he said is a plausible description of what might have happened it requires a telescoping series of inferences all to be construed against my client at the summary judgment posture one of them is you know that the x ray itself which said that there were no bowel obstructions and that merely there was a foreign body that the foreign body could be inferred to be obstructing the digestive tract require as an inference that the person who told my client that it was not an obstruction and that it was otherwise clean and that it was a bull it didn't tell anyone else  and inference that the security officer officer propes did tell them and there's no evidence of that it requires the the inference that even if they had all of this knowledge you know with the twelve bowel movements and and all the other evidence about the x ray the the bay interpreted that in a particular way and even aside from all of that there is still evidence that my client tried to tell them at the cell door that he had had a clean x ray and should have been held there in the first place and i would again director attention to j one seventy five and j two one for that purpose i would add that the the the  duration and you've talked a little bit about the ration even if you do even if you don't buy that they had any knowledge of the conditions in the first four days i do think the duration is still important because conditions are substantially worse there are a lot of cases that talk about you know severity required like the wyly case for example talks about how the severity of a violation decreases as the as the duration of it gets longer so your view is i have the my other point earlier i guess as to the duration specifically obviously you know if it's only in the dry cell for ten hours or something the duration claim is a little bit harder to make out ten days is a long time five days is st time and then even within the duration claim the fact that it was days five or ten days five or ten are worse than goes on for five from the from the experience of the prisoner and in the law the second point the setting the second overarching point that i want to make on rebuttal is again to go back to what the scope of the violation is here my colleague mentioned that the it is not the responsibility of the p r c to check for compliance with the amendment which is a concerning statement if you think about the responsibility of prison officials and the eighth amendment guarantee that prisoners will not be subjected to cruel unusual punishment hope itself which is you know we've cited in as a is a seminal qualified immunity case in the sense that even fifteen years ago the supreme court said that those defendants themselves could not get qualified immunity counsels that conditions that would otherwise be record has developed easier for us on just a duration claim rather than the conditions claim because of the challenges you've already discussed how you prove what they knew and when they knew it is the easier easier cause of action for you to argue to a jury about the continu mean i'm not certain what would be easy it's it's hard to know what would be easier to argue a jury but i do think again i think there's a conditions claim i think there's a duration claim and as we've discussed at the outset the very fact that they held him without justification conditions that they were holding dry cell conditions as a general matter would fall below the baseline required by the eighth amendment if they were not justified by a legitimate investigator i want to make sure you're not asking this court to say dry cells are unconstitutional no your honor no in fact the key point is that those conditions may be justified in many circumstances by a legitimate investigative basis on a belief that contraband the the problem is when as here it becomes clear very early on that they're no longer an investigative basis and again in this case that's that's made out by the x rated shows no struction the twelve  sense and him attempting to tell them that and other people in the facility having told him but i guess we're supposed to infer a summary judgment not told them when the investigative purpose lapses there no longer a basis to hold someone in those conditions and again as hope says when there's no longer a justification to hold someone to conditions that would otherwise fall below the  so there's there's a there's a duration issue there is a holding him there in the first instance once but just a question of the lapse issue and there is a duration issue and i think those are all very important i would very briefly like to talk about qualified immunity just because it came up again at the end i think that regardless of you know how many cases either of us have cited the the case law makes clear that number policy is constitutional for one thing says nothing at the time and and for another thing even if it had they didn't comply with it and beyond that even if they had complied with the policy and even if the policy had previously been up against facial challenge the relevant standard here is the eighth amendment the eighth amendment looked like the policy and qualified immunity start for purposes of qualified immunity the defendant standards the defendant's conduct is judged against the relevant standard and that is the eighth amendment and there are lots of cases that put them on notice young young being among them but their being many others lots of cases that put them on notice that that the conditions and holding him without justification and holding could be drawn that a substantial risk of serious harm exists and they must have drawn the inference i've heard you talk about some facts and about inferences that could be drawn but but i haven't heard you tell us how how you know that the president officials did those inferences certainly so the hamilton which is which is the case in the circuit says that if you have knowledge of conditions  investigation that makes that that may break out of my station and the reason is that if they have knowledge of a potential violation they can't absolve themselves of liability by conducting the investigation the beares capital case which is which is also from the circuit points out that you can infer from circumstantial evidence that they had knowledge and this the record is replete with circumstantial evidence as to the knowledge that they had and again i would remind you that this is on the summary judgment posture and that all the inferences that you're that we're talking about here should be construed in favor of my client on this posture and so the you know hamilton the fact that they had the knowledge and didn't do anything about it that should be construed in favor of my client as to as to what they did or didn't do for the purposes of sort of the subjective part of the test and beers capital that circumstantial evidence can show about the knowledge they had and all the evidence that should be construed in favor of my client makes out the objective part of the test and so i actually think that you know the both the objective and the subjective parts are are more than satisfied the the the it says you can appeal this within two days and i wondered why if you perceive that you disagreed why didn't you appeal so that's actually it's a very orwellian kind of thing on their part in the sense that when you're in the dry sell your knowledge of paper pens you're not allowed an actually possible for him to have done anything about it two days he did what he could do which was complain to them orally and try to tell them why it was not just by that he was being held there but he couldn't he couldn't possibly have filed a written appeal of any kind within two days and i don't think that it would be fair to hold him to bat for just the way it has to be in writing just as you can appeal on i don't know if even saw this form so far i mean i think there's i think there's record evidence that he didn't until later  and again to the extent that it only requires an oral appeal him attempting to tell them why it was no longer just like to hold him and then turning and walking away i mean j g twenty three he he writes that day when when they came to the cell door they already had their minds made up and that that was his that was his impression of what was going on and if they already have their minds made up that is exactly the sort of refusal to conduct an investigation into the possible circumstances of the violation but that hamilton counsels is a violation of