on the context of this case everyone would agree that there is never an appropriate circumstance for a correctional officer to have any sort of sexual contact with an inmate which is what occurred here and clearly the correctional officers involved in this situation were wrong however the context it's important to emphasize that the department's response to these incidents were exactly was exactly at the involved offices were investigated they were eventually terminated from their employment with the d l c they were criminally prosecuted and they were system worked like it should have of course this case is not against these officers but rather against councilor bachmann who was merely a supervisor in the building where  we maintained in the facts in the district court erred in failing to recognize that ms bachmann is it is entitled qualified immunity turning to the qualified immunity analysis obviously there are various s parts to the analysis in our view and we've briefed all the sub parts but for today's purposes i want to emphasize that in our view the analysis should begin and end as it did in poll versus leonard decided by this court in two thousand and two and responded over cisco d own cited by this court in two thousand and fourteen with sort of the initial i call it the threshold question of whether plaintiff even has proven a constitutional violation based on all of the undisputed facts now in both hall and risk farto there were various notices that were high degree of risk that subordinate would commit the unconstitutional act roll or poke and restart or both looked at the notices that were supposedly provided to the supervisor and concluded no you do not satisfy this initial standard of the qualified immunity now since we say the same result is indicated here if in looking at the notice that was provided to missed bachmann in this case it's st important to recognize three undisputed facts number one correctional officer bromley is the only focus of the district substantiated your related incidents prior to his involvement with miss ten greg the nd substantial fact is for a long significant number of years there were no said no there were no similar type incidents at york of sexual contact between staff and inmates rd important fact to recognize or to take into consideration one when looking at the notice that was provided is it's undisputed that she had no direct knowledge or information concerning the sexual relationship between bromley and tim brett the notice was only argument is the argument of the district court that she was a counsellor and she observed familiar overly familiar interaction between this team ready and the officers an offer had seems to be ready directly and told us there needs to be more of a direct connection between the supervisor and the conduct our position that the supreme court has has spoken in the call in the two thousand and nine case that considerable skepticism as to whether the all the cologne factors including this is the th cologne factor applied and that's one of our primary argument is that the law is not clearly  under the th prong of the cologne analysis how in the can they were trying to ask you this question so if the supreme court told us if paul that there isn't a liability of a government official for the unconstitutional comfort of their subordinates that the factors and that's sort of only lead you know the direct action that's the point you're mentioning and i'm sure i would agree with that yes and that's the only issue here is that right i mean if it has nothing to do with sexual misconduct whatever the officers it has to do with whether there was a the prong here that the district court focused on is that she was grossly negligent in supervising her subordinate so if you take it paul they can only be responsible for their own direct action that in fact the information she had was not enough to put her on notice that she needed to go further and do anything more than she did that is that is our primary argument you're correct  yeah and there were two incidents i recall one was in the laundry when she overheard the conversation talking about a fellow officer and she said printed out and then she referred it to tapping smith and that's what you hear and you say that was sufficient me address if i may the the notice issue that it seems that the panel's concerned with there is far more information known to the defendant in this case that put her on notice of a risk of bromley sexually she knows about prom lease behavior with the plaintiff in terms of the un do familiarity between the two of them in the laundry room and in his office in the davis building go to that single conversation in the laundry room is enough to put her on notice of one to familiarity and enough for her to report the risk of sexual assault and we know this because it is admitted by the commissioner of the department of correction who record and this is at an appendix otu fifteen dollars per statement bachman statement to captain smith is is a is according to her interview at that page of the appendix quote she said i said to smith quote hey i kind of have this situation brewing with bromley and quote but that might have actually transpired this is her speaking after bromley was moved out of the davis building  that report st of all it doesn't say anything about sexual assault it doesn't say anything about them differently eric all it says is according to her i kind of have this situation brewing with bromley and that doesn't put smith on notice of anything but for me to stand for two propositions one she is on actual notice that there's an issue with bromley and two she fails to report it because that's not a report that's a statement she then  might actually have been made after bromley is already out of the davis building and all the damage has been done so there is no report to anyone at any time until after october st two thousand and fourteen months after bromley been moved out of the building so the notice that no the number given is that she had notice of these interactions and she should have ensured that there was a risk of sexual misconduct right or sexual assault do you agree with what opposing counsel said which is that the district court relied on prong four of the clue factors which is that she was grossly negligent and so and so that's what  the the person in charge there's only three officers in the day in this building over which he had supervisory responsibility bromley as one of them she at met this is at my brief page seventeen note non that there was multiple reports that there were no cameras including in the laundry room and in the office where inappropriate conduct took place and so what we what we have is direct viewing of unto familiarity conversations between grumbling that occur after he has been instructed to no longer do them so we have inappropriate behavior by him toward this one inmate where bachmann to the defendant says cut it out he doesn't cut it out she then says to smith you know i've got this thing growing with bromley so she's clearly aware of it and what and what prettiest is and what the b o c zone administrative directive say is unto familiarity is the evidence of a risk of sexual assault that's what the administer directed said so it's not a matter of well it's just a conversation and so therefore that didn't put her on notice of the risk actually she concludes as does the commissioner of the carter correction sample and his the testimony that the exact things he observed is the exact evidence that would put and should put a supervisor on notice supervisory liability so if in it but the supreme court tells us that a plane just must be that each government official defendant to this issue is own individual action as by the constitution doesn't that mean that instead of looking to a special concerned intentional discrimination that was the case having to do with discriminatory intent and in that context what the supreme court said was under and when you have to prove discriminatory intent you have to have more personal involvement by the supervisor there has to be an intent element of the very thing being claimed as a constitutional violation which is this which is racial or religious or other types of discrimination so in that context the supreme court said we need more involvement we me we need proof of deliberate indifference and prove a discriminatory intent with this court has said on i think a dozen occasions since this issue of the ball came up and i have these are all quoted in panel there different panels have different things with so many saying what your honor suggest which is you know here we don't really need to decided because there's evidence of deliberate indifference or for some other  reason but but and so the cone is not properly before us with not yet determined the contours above supervisory liability it may have height i'm quoting this court and a number of different you know i understand so i understand what was said in those cases so i guess i discussions about it ball so you're saying that it was only about intentional discrimination and any other any other kind of a case or any other constitutional violation it's all just shouldn't apply but animist so you're saying if he had just treated it as an amendment violation as opposed to a discrimination case that it would have come out totally differently in this room would never have said what it said about supervisory liability  this context of an economic claim this court would have recognized that by now it's had more than ten years to do that and it hasn't done it and the reason it hasn't done it is because it pubescent stand for the proposition that your honor just stated it isn't limited holding any limited case involving a very different kind of claim than that made here and so and back to your question of a few minutes ago judge about what clay what are the factors some under cologne that applies here a both as a matter of law and as a matter of policy these are the ones that do and should apply the th factor grossly negligent in supervising subordinates who committed the assaults not the th factor which is exhibited delivered indifference by failing to act on information that the unconstitutional acts were current and that's a new or should have known standard and also the nd cologne factor which is the defendant after being informed of the violation through it record failed to run the the wrong and so i guess my proposition my question as a matter of policy would be why would the supreme court have overruled the school on factors it doesn't make sense in the context of making them a violation in a department of correction supervisory liability case where all of those three factors are met by the evidence before the court and if the if all decision had meant to do something like that this court would have long ago understood it implied and so what we have here is a matter of clearly established law is not the dicta from nd circuit cases saying we're not really sure yet what it all decided or how it applies or might apply in this context we don't base it as it has been set out by the decisions of this court in this context on dozens of occasions and that's why i think we are we we have the argument so let's any of my colleagues are there questions let's hear back from the clearly focused his comments only on the laundry room incident where probably in ten grand we're discussing another correctional employees and it's without question it is a violation of the administrative directives to discuss business matters employees with and then that's that's uncontroverted so clearly it's appropriately the commissioner's opinion that it should have been reported but he also said he was asked point point by point us counsel did any officer in the chain of command exhibit negligence in any way in regard to their supervision of bromley and the other two officers no pieces said clearly and specifically no  well what about what about the argument what about the argument of the administrative directives explain to her or she should have known that the mill your conversation was itself evidence of a risk of sexual assault that doesn't have i don't agree with that interaction indicates sexual assault i understand your argument that maybe not everybody would think the interaction showed that sexual assault was happening but the argument from the other side is that you have these directive is indicative of the likelihood of a sexual assault at the that's complete doesn't make any sense right your point here is that the constitutional norm cannot be shaped by the prison regulations whatever the constitutional norm is that's the norm and prison regulations may bear on thinking about whether that enormous filing but it doesn't define the parameters of that that's exactly right your hon and unless you're a healthy yeah i was going to say thank you very much for your argument the case is submitted