least the course i'm joe di well i am an assistant attorney general with the state of arizona and this is i'd like to reserve three minutes if i if i could your honor this is an inter was housed there he asked for protection mr cho and then the deputy warden actually he was isolated he was isolated he was protected and visit choa started the review process and she had the s s u officers to look into this and do up a report so she's presented with a body of evidence after s s you did their report and she had on one hand mr mr farrow's claims that he was targeted by the border brothers and on the other hand she had the information that we she received from the s s you saying there's no confirm statewide threat here and there's no gang connection so she had those two pieces of evidence and when she looked at that she considered that and she concluded she concluding that it's clear that she concluded and it's not disputed that there was no statewide threat to farrow that there was no gang related activity so she didn't and what she did was she recommended alternate placement protection what she didn't do was not just deny protection she recommended alternate alternate housing and she recommended that mr farrow be transferred not claim that he acted as an informant in the past or provide any reason why others might think he is a snitch but he said that at the first request he did say that at the first  the question i mean you're it didn't sound like from the briefing that you were saying he wasn't credible because that's not the reasons doesn't seem like that was the reasons that they gave i mean it seems like you're assuming he was a snitch they made a determination you know because of that that they moved him it's not like they're saying hey we don't believe he was a snitch so we're not going to do anything so i don't think you can have it both both both ways here but i cimarron where i chose the deputy warden he had gotten into a fight with his cellmate well ok so you're saying there were i guess there were more than one or two basis to move him but they ended up making a decision and  seems like he's offering up a lot of reasons and don't we have to take it in the light most favorable to him at this point yes but ok so if we take it in the light most favorable to him he's a snitch and he has these border brothers and that the defense did not know about the harm when you look at a number of things here he was assaulted by a member of the border brothers gang in the lewis i get the rest unit is solved by two members of the border brothers gang in the tucson simran unit he twice reported receiving a threat you know allegedly from the border brothers gaining and then he requested protective custody six times because of a perceived fear at several different units of the border brothers again your individualized approach the answer to that i mean is that what you're standing on i think that's part of the answer your  and on the first yard mr fiar was that he actually got into a fight with his cellmate he wasn't assaulted he got into a fight and he punched a wall and he broke a set on the second yard he was out and this gets to your credibility question have any injuries he had he had a slight laceration on his on his forehead a slight cut on his forehead and i believe the medical records said he had a slight swelling on the top of his hand near his wrist  the deputy warden took that into account the deputy or and took that into account from a credibility standpoint that was all considered and i don't believe the district court took any of that into consideration  court did not take into consideration the information that the individual defendants got from their individual s s u units that said that there is no conflict and i guess the other question i have is why did the officials transfer mr carroll back to the tucson cimarron unit and i think it was september of two thousand and thirteen and then back to louis morey unit indus summer of two thousand  thirteen i maybe september two thousand and twelve i can't remember or and then the other one was to the more loose more unit in december of two thousand and thirteen when mr farrell had previously been assaulted at those units and apparently the officials had determined that he needed to be moved these officials didn't transfer your own well but it's so it's just we don't hold the whole organization i mean so that can always be a defense is that they can you could have enough different people  they don't have to review his record they can just make a determination and they'll never be held accountable no your honor each one of these defendants didn't review his record when i go back to a cho and i just use it because he's the simplest example  involvement in this to heroes to your protective custody process and then when she recommended and that's all she did she recommended alternate placement protection but she didn't do nothing but it seems like it's difficult to say which defendants might have been liable and which weren't because i guess it would take further determination by the court but i don't know that the court would need to do that or the district court was wrong in not doing that because i think the district has to take the facts in the light most favorable to fear of what you just acknowledged so arguably it seems like the threat was obviously at obvious after the first assault or the fight i guess and so even officers involved in the first p c to niall could arguably have acted with deliberate indifference to substantial risk of serious harm isn't that true but the risk was you know yes the state wide threat the state wide threat and the gang connection was not obvious again these officials they had they had a body of information that was presented i think your your position including for a job is that the state the each of these officers did exactly what the arizona prison regulations require them to do which was an investigation and they determine that there was no state wide threat and they didn't believe the subjective element they didn't believe there was a threat as to him and that correct yes your honor i would just you know there's a problem with that the problem is that to the s t g border brothers bottom section as as you which is the special services unit has determined this could be us as t g related there is no documentation in this packet which indicates a few arrows statements have been checked out and either confirmed or not confirmed that sounds to me like they didn't do everything probe that the prison regulations required and therefore they are contradicting themselves and therefore they can be found not to be credible when they say they did everything and did not know subjectively there was a risk to mr fury and for purposes of summary judgment if there's a dispute in the evidence summary judgment should not be granted prong of qualified immunity while i discuss the first prong which is whether mr farrow's constitutional right was violated so i would like to reserve eight minutes for my time and see the rest of my call farrow who brought the present action alleging that his eighth amendment right was violated after prison officials failed to grant him protective custody custody all six of prior occasions after being assaulted and threatened by record he was assaulted on two occasions not on each of the occasions when i hope he was given he was trying to transfer from one facility to another facility on five least eight members of the board about this but the assaults that you're pointing out to yes there was the one leading up to the first request by a saw me and then the one leading up to the second request which actually involved the record there were physical notes i understand so in one of the instances and during his fifty requests in that file mr farrow actually did produce a note by another gang who alluded to the fact that they we subjectively did not appreciate that he had a substantial risk because we thought he was trying to manipulate us right i understand ironic so we have actually mr farrah can present circumstantial evidence that shows their subject awareness so we don't have to take the prison officials testimony as true and in this case even if the prison officials do say that they didn't believe there was a risk there is evidence that he is proposing mr pierre has provided us is just that it entire file so his file this included the first requests where he had his first encounter with the border brothers in january two thousand and eleven and this is where he got into a fight with mr newdow opposing counsel says that this was just an altercation where his his problems about that they started with this fight with the border brothers and the camera on unit he also noted that mr fear had extensive barley and juries and that he was not able to defend himself because of his medical problems and these were all present in his entire file so each to fund defendant actually had the opportunity to review all of this information and so is that your response to the individual failure of the district court to at the entire file and look at his history and see if it was as he really did which in this case he was targeted by is a recognized security threat group which is a border brothers it was known that the border brothers actually permeated so to say that it was an individual risk individualized response is a little bit misleading because even if it is a case by case to find and how to look at each case individually they still had to take into account the particularly risk that he faced and the such there is plenty of evidence from which a reasonable jury could find that the rest of the defendants response was and reasonable the as i mentioned the this is the border brothers were present throughout the population general population yards of the prison there was lack of evidence to show why they couldn't grant in protective custody there is nothing in the record that suggests protective custody was not feasible and the fact that he was actually at the florence central unit where which was  maximum coast city unit that in many ways mimicked what protective custody would have been like and the fact that he wasn't assaulted there is actually probative of the fact he would have been safe in protective custody since the condition conditions would have been very the supreme court decision which was a fourth amendment case actually i did we don't believe it changes that analysis as a court noted specificity in fourth amendment cases is especially important and it seems to suggest a higher standard hernandez you know we've seen those principles applied to the facts are particularized to this instant case and it's not only in this this circuit where we've found clearly established law using the parmer principle i think that really goes more toward the constitutional violation question and the other point i'd like to make really is that alter alternative placement in this situation didn't address the specific threat coming from the border brothers the border brothers and this is not in the record but the border brothers as pointed out in the arizona department of corrections website is the biggest gang the fastest growing s t g within the arizona department of corrections that has a security threat group which actually also not in the record but on the arizona department of corrections makes a distinction even between just regular gangs and  which show s e g s as further dangerous more dangerous than gangs and i believe they described as blood and blood out and they're known for targeting individuals how did this case not look like a decision made through the retrospective scope after he's injured that the department corrections individuals made the stakes were negligent as opposed to being deliberately and different because pointed out here in all the questioning in the answers there was an extensive review so i'm and the decision made after several layers of review and compliance with state procedures so if you had to crystallize for us what is  fact as to whether they conducted the investigation is that the crystal ization of the specificity issue here well i believe that goes to whether they were whether or not they were deliberately indifferent and there's you know i believe one of your holding that you know not granting protective custody under certain circumstances like the ones here where they know of a credible threat from a gang you know and they did and they don't take effective measures to remove him from the reach of that gang they violated  and they met that high standard of being deliberate no different they took measures and you say they were not enough they were therefore not effective and that's more than negligence that's the liberty difference that's correct your honor didn't it didn't address kay says that you're on i believe that the case is especially out of state the howard v wade from tenth circuit hamilton b levy from the from the third circuit and the rodriguez the secretary of department of corrections the eleventh circuit all stand for that proposition that simply moving and in me isn't enough and if you're leaving him in the within the reach of the gang that is you you have to address the specific harm that is facing custody custody close custody or maximum custody with regards to the e r to nine five one forty seven the that your honor judge been brought up that was an e mail from the protective custody and ministry to after the final assault when mr farrow i believe was of the cimarron unit she was riding back to the special security unit saying hey i don't see where you've given me any documentation showing that there's a confirmed threat that there's a confirmed statewide threat to firm or not confirmed confirm state wide threat she didn't have any documentation from s s u that there was a confirmed threat she saying go back and a reinvestigation i need some more information from you that would the does not cut against the idea that the the officers did everything that the i was in a prison regulations require i don't believe it does your honor because well he won because when they came back with the information they came back with they didn't have any more they told her were only saying that we think that there's a state wide threat because he was assaulted so he will have their part of the arizona regular shoes is to confirm or writing but they didn't they didn't they they said that they said we think that there might be a threat you are correct your honor substantial threat state wide to your oh and your honor that only goes to that last that that very last review that doesn't go to all the subsequent reviews and all the previous records they didn't document whether the threats were confirmed or not confirmed they did document the threats were not going for that they could not do that they not they could not confirm a state wide threat or gang affiliation they did they did document that you're on they didn't documented until they were called up no it's different when they were called up because when they were called up your honor she asked them you're saying that you think there is a confirmed threat i need you to give me what it is that confirms that threat that's what i'm trying to say on that last review they went back a special security unit went back to the administrator and they said we think there's a threat we think there may be a state wide threat she went back to them and said you need to give me more i can't go by you just thinking there's a threat they came back to her and they said that's all we've got we can't confirm a threat but we think there's a good chance that there's a threat because he was attacked so so soon after he arrived on the are back to the place where he had first been attacked it was the place he had first been attacked and they actually saw him all the way back to where he was first attacked not recommended alternate place that's when her involvement and she didn't transfer mr farrow anywhere she didn't have any input into where mr freear may be transferred to in fact she retired about two months after the after the first incident if i could briefly just address the second prong i'm way out of time here but it'll take me about thirty seconds if you could let me do that but  recommending protective custody over some alternate method of protection becomes unconstitutional so in a case like the one where we have here where prison officials were presented with a body of information conflicting information and that information in scream out for protective custody they could not have known that recommending an alternative placement was was unconstitutional this is case law would there's an objective and a subjective acknowledgment of substantial risk of serious bodily harm to the yes your honor but the only case law that's out there is addresses the obvious cases and so you're saying this is not an obvious case i don't believe this was an obvious case has moved him six times and with was an obvious case of he was being threatened it wasn't an obvious case that there was a statewide threat against mr fear a statewide threat and a has determined this could be eunice t g related i think your honor that's after the last assault on his last yard that's one review that was the one review that was done in response to you so