population after spending a period of time in segregation and feeling that what he really wanted was to be back in the general population that's correct your honor mr blair did submit a handful mr blair directly told mr terry i've got a hit on me and i need protective custody then on top of that there was a but if you got it grannie correct your honor he was in ministry of segregation for two months but then ultimately was released into the general population and immediately before mr blair was released into general population mr terry stated to the working man of the house and professional manner mr blair is the victim here on top of that mr blair and mr terry knew that mr blair had been attacked just hours after arriving at the central correctional center he said two months before this or two months between the two to attacks how long is the period between the two attacks again reiterated in mr blair's june first letter to warn our stock which of the evidence showed was then given to mr terry and in that letter was given to mr terry a day or two before mr blair was released and the general population what relevance is there though that the person who initially attacked my understanding was placed in administrative segregation himself so that the person who initially stabbed him was no longer in the general population that's correct your honor that the house and the individuals it's harmful i mean nobody's going to dispute that i mean that's a grave harm but at the same time that person is now in administrative segregation and can't get it mr blair and you have such a vague alec patient there's a hit on me with no no specificity as do it is population specifically they stated he told the warn mr blair is the victim here but on top of that he specifically stated toward terri he was asking if there's nothing else on the investigation and we've nothing showing us there's any danger for him but the fact was at that time that mr blair was released the investigation has been concluded and in fact the individual who had attacked mr blair the first time the one that was in administrative segregation hadn't even been interviewed yet he was interviewed until two days after mr blair was attacked for the second time so the fact remains that mr blair at our mr terry knew that mr blair had been attacked by a stranger as hours after arriving at the institution on top of that that mr blair told mr terry i've got a hit on me which makes sense in terms of our our general understanding of what a hit but then comes all of these statements in his own letters saying i need to be back in the general because your honor the relevant question here is not one of what other people knew what an investigator nuer what an individual outside the prison knew the question is what did mr terry know and so in relying on these letters where there was absolutely no evidence at trial that mr terry received those letters that he had knowledge of those letters and anything that mr blair stated in those letters there was no evidence showing that that then affected mr terry's ultimate state his knowledge of whether there was a substantial risk of harm to mr blair in the general population and so the district court erred by then not also applying the standard for deciding a motion for judgment of him as a matter of law and allowing all reasonable inferences to be drawn considered in mr blair's favor because at trial he also provided explanations as to why he signed those protective waivers why he doesn't it indicate that  at least that the plaintiffs doesn't think the risk is that great if you want to be back in the general population but in his estimation it's he wasn't himself afraid of some imminent attack each of the classification hearings signed a protective custody waivers that that was his understanding that the individual who's in charge of offender classification and housing recommendations alternately signs off on it i've already told him that that wasn't an option and so that's information that's the kind of inference that the jury should have been allowed to suppose he had knowledge suppose terri had knowledge and i think you know i'm to go back and look at the record i think there's at least some circumstantial evidence that he might have but you may be right but question how can it be reckless to give the prisoner what he wanted even if as you say mr blair or mr terry told mr blair look you've got two choices general population or administrative segregation you know you've got to pick one of the two gave him what he wanted how can that be reckless on the part of mr terry because the foundational principle of the eighth amendment and mr terry duty to protect mr blair from the arm at the hands of other prisoners and mr terry or excuse me mr terry was the supervisor who signed off on one of these committee housing committees that is hearings so there are two different housing status hearings that mr blair or mr kerry testified right there yes or you know we got real evidence in this case so tell me of those ten you said how many did terry say he knew about so i don't know if you just if you went through each of the tanah let me think about th we know that he's aware of the committee hearing that he saw and the waiver that was signed at that committee hearing i don't know whether he's aware of the appeals from those two committee hearings i do know he's aware of the letter that mr blair sent to mr terry supervisor the warden there is a number of instances and it sounds like about half well yeah i think that's i think that's probably fair about half  again the first question we ask here is whether there is an objective so substantial risk of ongoing and so we need to consider the whole record consider whether there's an objective risk before we turn to deputy were the deputy  knowledge of that risk so some of these statements i'll only only said a couple of them so the on april fifteenth and again on may thirteenth he signs a waiver that says i am not aware of any enemies among the inmate population and i do not believe i am in any danger  unquote and later in an appeal from one of the status committees he says i want to be in general population there is no reason to keep me in administrative segregation and one of the facts and cites in support of that is exactly what we are going to break today he says quote the person who supposedly assaulted me and i were both detained immediately and the incident was isolated unquote that's on jay seven o three mr reed is there anything in the record to indicate the to the techs who are connected your honor i don't know of anything in the  the question is whether at the point of release there is any reason to suspect a second attack and at that well that's when the reason is is if if there's something to show they were then maybe there would be some inference they could be made about been able i got it out of me and he asked me what you know this is terry why would i believe that i had it out on me i told him i felt at the time or believed at that time that it had something to do with my murder case the case the case i'm doing time for i believe that some of my i believe that my victim had some relatives out that time in mr blair's testimony you know i think that it is similar to speculation to this i am not sure of the specific answer to your question of whether ok he comes up with anything later on what i do know is  at the time we had this conversation with mr cherry repeatedly uses words that indicate that and since statement with the phrase i don't know why i was stout in under this court's precedent and other circuits as well speculative statements about a future risk are not sufficient to establish a substantial risk benefit harm so i want i want to ask you really about the main theory of opposing counsel something that you know they're through something that really bothers me which is essentially the argument i think is twisting my arm i mean the whole the ministry of segregation which is nicknamed the whole does not sound like a nice place i've seen administrative segregation other prisons obviously not this prison not a nice place and so you get that you get the choice of solitary or being in the general population which is you know kind of a hobson's choice and he says look there was a third option protective custody but they didn't take that seriously and so essentially you know mr terry twisted my arm and to taking the l of two evils and that's why i did the things i did it was it was compelled what's the what's the state's best response on that there are two things your honor the first is that even taking those statements on there on its face mr blair himself into cate's repeatedly that he is unaware of an ongoing risk is going to make that argument today he needs to have stated at the time that he was aware of an ongoing risk and we have multiple statements over two months where mr blair himself says i'm not in the where of an ongoing risk because he stood by those statements until the day he was released in the general population of the w one was entitled to rely on those under qualified immunity the second part of that answer i think is it's not that simple you can't just put any offender in protective custody into a protective custody housing and i think here there is a distinction that is made by both parties in the breeze between productive housing protective custody status custody housing you can't put a resident dangerous inmates in a protective custody unit that's a problem where we're custody with all the other inmates who are in custody and so what we have here i don't think is a hobson's choice i think what we have is a difficult choice being made by president ministers dealing with a dangerous inmate who doesn't he was not cooperating  the state's i don't want protective custody i'm unaware of any threat against me between administrative segregation and general population and and mr terry's own testimony he says look i knew of any ongoing risk in general population i would've left him right where he was that's where he would have been protected if there had been knowledge of a substantial risk here there wasn't knowledge of a substantial risk there is no evidence side from mr blair's own statements of any kind of ongoing risk and mr blair himself repeatedly denies that earlier statement by saying i don't know about any risk i'm not aware of any risk i don't want protective custody i want to be released to the general population he makes  is not the deputy work and who signed off on blair's release nothing in the record indicates that he was the one who signed off on his release what is in the record is that he ordered a special review of blair's housing status on june five was a different limit of his participation in that decision and second the prison facility generally took a number of steps they secured his attacker they referred the attacker to the inspector general a third party for investigation they placed a lawyer in administrative segregation for two review hearing on june fifth you have a number of statements from mr blair the only possible source of any knowledge of an ongoing risk saying that he is unaware of any ongoing risk and under qualified immunity the prison facility and mr terry are entitled to rely on that qualified immunity protects all but the plainly incompetent that's not what we have here we have a difficult choice where mr blair was given exactly what he requested release him to general population he was unaware court wishes to thank you for your willingness to provide counsel thank you thanks both counsel for your presence in the argument you provided to the court today i will take the case and advisement may be