created a substantial risk a significant harm because they maintain the policy of random double cell assignments that place prisoners at a heightened risk yes or what's the  alternative would you suggest a random assignment i would suggest that they have to you know every reason you know consider whether i mean we have to have ask accordance with that belief and what it what does act in accordance mean they should not assign people at a heightened risk of being raped along with convicted rapists well part of it anybody homosexual activity in prison but most of the people and gays typically are not homosexuals they're just you know this is an inferior alternative for them that's all they have so you look for the sort that every prisoner should have his own cell you know which you know fine but you know we don't have that you know if you look at the order in jensen this is this is what the injunctions that the injunction poses upon the defendants a duty to use the classification instruments he's spent some serious time in prison the never see had several faults but no dude had anything to do with rape or irritating with homosexuals or anything else but but he did have a great convict you had way back which were when you alternative between random assignment i assume they discerned certain things you don't put a bully in with somebody who's a weakling or something i don't know but prison is not a pleasant place and i'm not sure who you want for a room and i can't the stress here i have to stress here that we're i'm not asking for perfection i'm asking for at least that they try to hear the policy was that apparently it was that they didn't even have to try to the policy was randomness but why do you give because they asked around and tried to discern and of course you want to ask the person before you make that kind of judgement or categorize him and in that way you know you would be here if people made all those presumptions in the prison i could see complaining because someone was presumed to be a homosexual because they had certain behaviors or people said they were and then we have that kind of case right he didn't want to say anything just he was he didn't respond when they asked him so i'm just trying to figure out what kind of guidance we should give or you would give to the prison system you know without you confront the person salary you going to get around that it's double selling is fine double double selling with what if you're homosexuals are afraid to be raped and so on you still have to be stuck with a heterosexual or they have to find some little skinny how a man also a lot of this rape in prison has to do with establishing domination over other prisoners showing you're a tough guy so that it's done by heterosexuals more than by homosexuals right how you  deal with that well i mean if you if they know if the prison knows that they get that someone convicted that someone didn't you know did a rape and that suggests that they're at a high so what is so what do you with sexual offenses can't be placed with persons are you saying that all anybody with any kind of priors sexual offense no matter how long ago it was over that type of conduct was involved should be i'd not placed a vulnerable person should not be placed with them trying to see where we can draw the line or you know sometimes prisoners have convictions for assault serious assault you know based on i can't you know i can just argue on the basis of these facts where face prisoner was in jail on a conviction for rape to silver was in jail on conviction for rape now you know case because you just think for a second ok do these prisoners but putting together these prisoners create a toxic combination where we're going to get a rape and that's it it literally takes a second you look at this person's conviction you look at that first sense convict you know conviction does this make sense or you know what are you most looking at who rape women do not rape other men you don't divert you know the vast majority of prison rapes you know that look a lot that this person was he interviewed is he said there's all kinds of guys hitting on me or something does he have to mean when i went to prison person says are you homo sexual it may be a precautionary thing if someone says yes the it maybe put him somewhere and it was judge posner pointing out ok now we know we've got a guy who's is homosexual and i don't know there may be rules what you do with it i don't know what they are but he doesn't acknowledge it thought that that you know i you know i look i was not the trial attorney here but i mean you know i see how tall is this five foot six and he's regardless of the conditions at their institution to implement a broad protective policy targeted at an indeterminate group of perceived vulnerable inmates intended to crack protect them danced a group of are ever convicted of any sexual offense this would be a broad departure from existing eighth amendment jurisprudence because mr ramos is unable to satisfy either the objective of subjective to how prisoners are segregated integrated for me with each other that there is your honor that within the d o c that there are broadly speaking three levels of consideration given to the type of harm that mr ramos suffered here the most broad consideration is the classification made at d o c central which is made by the bureau of classification and movement where when an individual comes in  the classification specialist looks at a number of criteria i believe it's fourteen and these are listed in wisconsin admin co d o c three zero two zero seven and these include the offense of conviction  the attitude of the offender criminal history it also includes the the offenders perceived vulnerability that the specialist understands through this interview and any specialists have had training on sexual offenses and prison in and they knowledge don't they that people are at an increased risk of sexual assault when they're doing this classification your honor i can't speak specifically to the classification specialists but d o priority to inform everybody from the top down that preventing prison rape is a significant solace or something that the classification people have to look at yes your hon was established as a zero tolerance policy from the top to bottom so can i know we've had cases in the past where someone will request that he be put in solitary because he feels endangered by the other prisoners is not an option for some or is specifically to highly vulnerable you know someone maybe he had cooperat this case took place there is a specific wing a unit that is largely for individuals with mental health issues but they were you in his deposition testified that can make two points from from your comment there with regard to size i don't think that any court has ever established sort of a benchmark for for height and weight that you know once you hit this you're vulnerable category isn't limited to sexual orientation if you look at the testimony from director morgan that's cited in our brief that category of vulnerable people includes the young it includes the old it includes based on sexual orientation it also includes individuals with mental health issues and i think it's generally understood that there are there's a large proportion of prison population now knows nothing in terms of ramos he had he had served twelve years before in prison correct that's correct there was nothing in his record that indicated that he had had problems during those years from in terms of being attacked or aggressive conduct in his conduct reports so it's not that he was this sheepish totally vulnerable individual there and really nothing in the record to indicate that he was as vulnerable as his argument suggests well so we just going back to the levels of consideration that are available with in once once an individual is classified based on those criteria there's also a unit or rather an institution determination that decides where the individual is going to be placed within the institution and then  sort of most importantly you have the boots on the ground the correctional officers who interact with these individuals on a daily basis and have great training on how to avoid dangerous cell pairings and really have you know not only an institutional interest but a self interest in eliminating potentially risky pairings the correctional officers are going to do what they can to keep peace on their wing and here there's there's honour's the defendants here would be entitled to qualified immunity there's simply no clearly established law requiring implementation of such a broad policy as mr ramos seeks and unless your honour's have any so the this critical problem here is that the trainings haven't that what they say what they're saying in the trainings hasn't been linked to anything that they're actually doing on the ground the training say that l g b t i've read a heightened risk of victimization but you know what they're not carrying out that in any way evidently with the actual policy on the ground if you haven't you haven't suggested any any feasible way of dealing with the  that the men raping women do not normally rape other men yet they're heterosexual now they may do it of course but in a prison especially but how is inside the prison with him with you know raping men if they're going to be raping you don't know anything about that how often heterosexual rapists rape other prisoners belief ursus perception and so you know what really bothers me about this is that it's ok for him to keep it private to himself but i don't see how you can rely on his nani answers to those questions to try to show deliberate indifference on the part of the officials if we have a policy in place that you know protected people then you wouldn't be afraid of being a target if you came out and that's