a bottle i want to because in my limited time i want to focus on two issues that are raised in the appeal the st is the word or granting summary judgment in favor d of three administrators in the order granting the motion to dismiss the claims against principal sherry bacon now yesterday this circuit issued a decision that is highly relevant to this case and i think supports our position in this appeal especially on the motion for summary judgment in the foster versus university of michigan this court reversed summary judgment in a case brought by a student who claimed that the university was deliberately indifferent to complaint she made about a fellow student who was harassing her the district court granted summary judgment because the university had responded to her complain however this court reversed summary and held that summary judgment was improper because a reasonable jury could find that the response of the university what's clearly on reasonable under the circumstances and in particular i wanted to wreck the court to the passage of the decision beginning at page twenty three dollars and there the court noted that the harasser a lated a no contact order and then indicated his sordid to staying for the complaint and the investigation process and the court  concluded that the response of the universe that he was insufficient and had the effect of encouraging the harasser to continue his conduct and we have similar facts in our case now foster is a title nine case but as we pointed out in our briefs the standard for deliberate indifference under title nine and and section nine hundred and eighty three dollars are the same now what i get from the foster case is the following could the jury could a jury look at the facts in our case and conclude that the administrators were not deliberately indifferent that their response was not clearly beyond reasonable and the answer is sure but i submit there's more than sufficient evidence to support a verdict for the point of and the judgment below should person in fact i submit that the facts and foster are much closer than the facts in this case how do you line up the phrasing clearly unreasonable with the cases that say negligence isn't enough and again in a very simple minded way we usually say you know a reasonable man doesn't commit negligence if he commits negligence he's acting on reasonably granted these are different areas of law although they're quite similar so so how do you read those standards together i just think that there's there's always that tension in in the concept of deliberate indifference in that you know it's on the one hand you have to be more than negligence on the other hand if you you know there's barriers phrases that we see in the cases from this circuit that you know if  what instructions would you give the jury would you say simply you know carte blanche if these people were clearly unreasonable they are liable i know i haven't looked at the jury instructions negligent isn't sufficient you know on the other hand if and i think that the this quote has said repeatedly such as in roseville versus war in schools howard vs knox county that that if you are confronted with a situation where there is a strong likelihood that the teacher is going to continue his abusive conduct if if you have responses such that your pure response is clearly on reasonable or deliberately and different under those circumstances then liability can attach so i you know that that that's that's why we have to proceed it at this from the standpoint of look at the record as a whole and is is this record does this record have facts that would support a conclusion of deliberate indifference and i guess what i have to say is i've been handling cases or representing families like c g s for about  ten years and what stands out in this case is just the sheer length of time that mr duvall worked while complaints were pouring in from fellow employees from outside professional let me ask this about the tried to draw up in order to chart right all of these people which is one of the questions but in in sort of your summary of statement of facts at one point you say that duvall was abusing people documented by all work yet few of any of these incidents were ever investigated nor were they ever reported to the proper authorities now that's just part of your rhetoric but that would have been the proper authorities because i grant you that there's a lot of finger pointing of somebody says i did this i did that but they did seem to eventually percolate to this h r and my impression is that in the ultimate it was h r that got him fired it was the guy's todd the percentage sent the the report that actually got him fired before the board that exhibit nineteen which is the actual document  what are the proper authorities other than that right well that to look at the facts for from going to chronological fashion principal sherry bacon was the st supervisor i am sorry i said thought troy scott wright was the h r director who files a document with the word that gets and fired very ok but ask after the i mean and i understand you know the cloud of who did what you who were not who may have received complaints about this teacher but not during the time frame of the abuse of this particular  may have known about the abuse but may not even have been employed or have been retired and thinking specifically of bacon and robinson and then with a god to some of these others may  is that the liability accrual of a cause of action is determined by by federal law and under federal law a cause of action or a claim of cruise when the plane it becomes aware of threaten people who are making complaints and if you destroy the records of your investigations then you hamper the ability of future supervisors to deal with this misconduct and to years ten years later and his bacon is long retired to florida and i just think that it's a question of proximate cause mason and that is just something we don't deal with all the time let me make sure i'm understanding this reasoning so the student who is the plaintiff here is cause of action could not have accrued until after the actions in the book with respect to any i'm right once the cause of back at the whole history of allegedly deliberate indifference to what was going on and bring in people who have long since been retired because this individual's cause against them did not accrue until after he was injured so there's two in your view there is not a limitations period issue there is of course an issue as to whether there was proximate cause with respect individual defendants to see have those contributed to the ultimate injury to this plight that's correct that's correct and whether or not that chain of causation is broken so indicated was decided yesterday i scored the st notice i have of that particular case so i apologize but i just simply cannot address that case and if i can go on with my remarks from there on appreciate that you know i think from the court's questions the court is zeroed in on what we respect we submit to be the real issue in the case in why the trial court judge querist was correct in his decision and should be affirmed and that is that the with respect to each of the defendants and you look at each individual action at each of them it ends up being a pretty compelling picture of whether you call it sweeping under the rug or ignoring or not following three to a can keep to a conclusion have or you want to characterize it a whole lot of allegations against mr duvall over an extended period of t certainly there was collective inaction but there was also if you break it down individually you can get a pretty long list of the instances in which each of the defendants in this case i did not that i perhaps should have done to protect all students and i appreciate that question and comment as well your honor i'm not going to argue that this is coming to this court with perfect conduct by the individual defendants in this particular case that's not the standard and if you start looking at the totality of what was done in start comparing that with some of the other cases that this court itself has decided i would respect we submit that this doesn't fall outside that specter of what the court itself has said it does not constitute deliberate and different  aggregate it you have to look at it defend it bad and it and look at what each of them did but i would said that it looking it but each of them did it there's a pretty long list with respect to most if not obvious and if i may your honor if you and i've done this if you go back and you compare what your honor is suggesting to be that list with clare born in roseville  take a look at the individuals there the this court has said summary judgment should have been properly granted you've got is an example in roseville a principal who had had a notice th for teacher in roseville davis had sexually abused someone quite some time ago that individual eventually come to that person's office of principles and complained about that knowing that that principal then was aware of multiple multiple multiple complaints by multiple female students of sexual harassment that principal in the face of that now age we had a father come to her in talked about his daughter being sexually abused her response was essentially i don't believe it didn't even bother getting back to the father let alone doing an investigation that same principle and comparing that with the parties in this case run in had multiple other girls come to her with complaints not only did she not do an investigation she actually told those girls that they should not say anything about it including to their parents because that particular teacher might get in trouble and could even go to jail actually disabuse the had and then after those multiple girls had complained directly to her had another instance of another group coming to her and complaining about it in the family complaining about it and did not even report that up let alone doing an investigation did not reported up and their principal slim according to this court did not rise to the level of deliberate indifference so you can compute that principle to the parties in this case and you have just by way of example i know would take beyond my time to go through literally all of the particular supervisors here but martin all work who's a director of special education and multiple occasions reported this to human resources council wants to on so long in so many complaints that were referred to numerous sources that these defendants mua should have known that once you give the complaint the human resources is going to disappear into a a problem with only facts you've got or if i may i understand the court's question but the record does not support that description of the facts it's just not correct what human resources did without question there were investigations it's in the record john harkes did investigations human resources did suspend this teacher to go wrong they had suspended him for now again we can say well it wasn't enough but to say that  decided it h r itself st or some board you know i don't even know if that's in the record i know as i stand here i don't want to give you an instance that's right it's fine but that's the part of it did do some investigation but the question would be how many complaints were the through the record instances where we've got others edna robinson herself did an investigation talk with multiple people in the building you know that was done mr l want that one where she ended up saying well there was no support for it she talked there are people who are very supportive of this teacher duvall when she did them but again it was an investigation so again if you line this up no or so o complaints that were made records that were made in when you contrast this to these other cases the principal her name was slim d in the roseville keyes who didn't even refer nothing she did nothing at all didn't bother telling any of the administrators in the district and reading about those bill the court emphasize the differ arguably the difference between action and inaction that she didn't condone it says because she didn't affirmatively do so but then there are other cases as your colleagues that about the do say you can't just turn a blind eye are those simply contrary to to roosevelt that the roseville court didn't take a take cognizance of that line well st i i don't believe that those are necessarily inconsistent with roseville itself and when you look at the case is themselves are dealing with this what i see is i'm looking at these are really kind of a direct connection between the conduct itself and what we're talking about one of the cases they cite is this were consolidated schools case in th you have a principal who reassigns a teacher the principal has noticed sob has a history of at least the alleged sexual abuse from middle school to elementary school and the principal acknowledge that the younger students would be even more vulnerable that was his reason he had no rationale whatsoever for that here who made the transfer or really was it robinson because they mean when she was at the  school you know in a sense the ultimate outcome was well let's transfer him someplace else in that was martin our ward because robinson was at the old school but our work was the one who became  aware enough of this to understand there was some problem and he was the one that initiated the transfer in martin l ward initiate the transfer and compare his rationale for that with the principal were consolidated his rationale was the  entirely special needs there's little supervision for teachers i wanted to have him if he's going to continue with the district in the general education where there is greater supervision and he talked to the principal and the students  less troublesome at the nd school there's more supervision there's more direct supervision and let me ask you one other question in this i'll ask your colleague as well any in this litigation did h r get involved or sued that is as i read it if you take the more benign view things went up i guess troy scott ultimately does get him fired but previously there was who virginia at just send she was is peter jensen written at any rate as near as i could figure there was somebody up the line in h r who decided to do nothing or very little did nobody want to sue them well if you're going to tell you what of the standard but you have this direct connection in the language here talks about the student i mean that's actually in the language itself and there is nothing suggesting that any of these individual supervisors knew anything about this particular student c g and that you know comes right out of the clear going case in also the roseville piece you know connecting that in when this court has hand these other cases it is a really a direct connection you h instances where wardens in prisons have instituted a policy saying you're not going to have the medical attention that you need for budgetary purposes and for that reason we have someone who is case where the plaintiff had been killed by the police they had fifty four deaths in a single year in that chief of police that acknowledged that they did have a problem it needed to be addressed it did nothing ut there is some language in that case that would wouldn't really be terribly supportive of your position you know that the language that the courts talk about but then rules will goes on to explain how that language is to be applied again reading rooms bill it's very careful to talk about that in it i think brings back in and yes here's the link but here's how we're going to apply it in these supervised reliability cases particularly in schools and public schools and that's where it specifically talks about there is nothing there that the defense did or did not do that encouraged the teachers abuse of this student that's bruised but let's with it's talking about here and again it requires more then i know there's some broader language in here but what i invite the court to do is to contrast what these individuals did it may not have been always but this court would have wanted especially with the benefit of hindsight which we're told by the circuit you don't look at it in hindsight type analysis but you've got these individuals who did refer this on they found the policy itself the district this notion that it just simply goes into a black hole is not correct from the record you know this was investigated we have john parks doing investigations we have a charge taking display action we can argue that it wasn't enough but for purposes of deliberate indifference we have the teacher having to get additional counseling as far as in good management in the c p i training that they talk about so it isn't that nothing was done now in hindsight problem is that went on for too many years born again i think it compelling and link the history again of very serious misconduct of sexual abuse which it happened over extended period of time in the principal in that instance with this prior history with the  department of d h as having found that there was validation for four of nine girls who had come for in light of their history in prior history rehires the teacher to be a physical education teacher and a baseball coach the principal in that case with the knowledge of all that it is when he goes to rehire deputy for the teacher he starts to tell them what happened i don't want to hear a don't want to hear it so again talk about a blind eye then there's a history once that teacher goes back st rumors then direct complaints of someone who said i saw this where the teacher was sitting eventually that principal saw the teacher after being rehired sitting in the bleachers and being inappropriate with a female student actually sought and did nothing other than saying be careful then who's more when you look at other well let me ask you this is there some who would not have the presumably would not have the ability of peculiarly the facts surrounding the abuse and to report the abuse simply affectively report the abuse of students who were not special education students those that impose some sort of with that impose some sort of special obligation on the school system of the people school system i think bill bit different because they're not a party to the case at this point is st the individuals are concerned i'm not saying it's not a factor itself but again we have a situation here where they did in fact they did do investigations they did report this on martin it would entreat himself advocated for discipline he wanted this teacher to be  did that by what reporting up because he understood it in your colleague may correct me he would have no power to fire or suspend that is correct each year but what did not he made the recommendation to each other which is that we have a documentary an oral recommendation what we have deposition testimony that's cited in the record seppa zisha of him sane i did act yes but not a document i don't i'm not aware of any document just the deposition when you talk about ok look at the stance of these children they were dealing with special needs him with respect to that and if you look at the case law i started talk about clear born in you know what i submit was a really compelling record of that principle in that instance and i had not even finished where that was in that case you had a counselor telling that particular principal th reason to believe in some now a judge about that teacher acting inappropriately and again nothing was done and again no deliberate indifference so there you have actual knowledge in you have this very high standard in this court the way it has applied it i respectfully submit the judge quist made the correct decision based on the applicable law here but this does not rise to the level deliberate indifference thank you thank you somebody in h r who messed up it probably would have been naturists and correct and ok just you know we didn't have the facts to know and you didn't and you didn't want to bring in parks because he seems to have roughly done what he was directed on the grounds that in that case the abuse was quote repeated and recent as opposed to sporadic which is what our cases it's clear that doing something is not enough  and also i want to correct the statement that mr all worked transferred duvall to the gardner cademy because of their be greater supervision and what he testified to was that he did that because of a quote firestorm of complaints that he was receiving about me through the wall you know i have a limited amount of time you are there any particular questions that the panel has that you'd like me to address ok just let me just close by repeating something that judge clay mentioned which is that these complaints that the defendants received about mr gove all concerned students who were cognitively impaired and were  nonverbal so the abuse that they received from mr de paul with somebody that they look to for protection so that abuse was uniquely terrifying and had trauma caused last trauma if screw administrators cannot be held accountable for their failure to a den of firing control abusive employees then there is no recourse for the most vulnerable population our community asked the court to reverse the order granting the motion to dismiss the motion for summary judgment and the order denying the motion to amend the