that both both parties of cited range are from a wide range of years from many years in this case we think the acknowledge that it's it's higher than mere negligence and we feel that the judge misapplied the facts in this case on summary judgment as it applies to the law in this case mr hardwick not only did when he entered the st louis county jail he had a prior suicide attempt at his mother's house he was also in jail for criminal nonsupport so financing was a big thing he thousands of dollars and backed child support and another major problem that he had when he was in jail his girlfriend at the time who was also the mother of his child broke up with him while he was in jail and mr hart wig became upset into the phone in be themself in the head in the phone till he was bleeding and caused him to require stitches a couple things to that were that were pretty alarming with mr hart wig in these situations is he was untruthful with the staff on not only his prior suicide before he entered the jail but he was also untruthful with the staff on how he heard his had he said he fell down made made up something else that he himself because he knew he was going to be placed in the infirmary seems to me that's a big that's a big hill for you to climb here because i was i was just that it's it's easy to say in hindsight particularly when he killed himself that he was being untruthful and he kept denying it was suicidal house staff supposed to know that that it was in the records judge had they knew they had found out about the prior suicide and asked him about it and they knew that he was not being truthful because they had the records they had found out about it and also they found out about the him cell hitting him self in the head with the phone from the girlfriend because the girl from was advised to tell staff what actually occurred in that in that phone room he was a psychologist one of the alarming things in the notes and we had an expert review the case that also submitted a report that is part of the record part of the summary judgment record  dr magnolia when after mr hart wig himself in the head he was placed in the infirmary right away in the notes dr magno least they did that she was going to see mr hartwig to see is reading this for discharge so it appeared from the notes and from the records that it was a common practice to move the inmates out of the infirmary as fast as possible and back in the general population now what do you think that's  infirmary to a medium status to a precautionary status that there's a there's a big difference and monitoring and let your expert about that about the level of professional care  medium risk because of the prior suicide because of the failing to be honest about things and his he basically stated he wanted to see the doctor and one would be out of the infirmary of the next  one more restrictive than yes and there is much more monitoring now to the problem with the precautionary status was the only  requirement under their policy for costner status was that the person on precautionary status had to have a rheumy well there were no restrictions that that roommate could come in go so being placed on precautionary status was pretty much no status at all being placed back in general population in the summary judgment filings st louis county admitted that after mr hart wigs suicide they change that policy to where if the roommate left the cell the person door to this so it sounds like that door was locked because officer had to come and let the cellmate back in so let the cell mate leaves he remains in his cell behind a locked door that's correct and that's standard facts at least is there we recited the brief he did make a phone call to his mother earlier more than one or more than one that was a half dozen calls that i don't remember i don't remember the records i know  mr heartly gone the day of the suicide and she was required to do checks hourly checks on him and when i asked her she said she glanced in the cell and shoot him remember seeing them at all if he had to be if you had to come out of the cell and make telephone calls an officer would have to lock the door writes it would that count as a check the hourly check it does not know it doesn't kno paragraph affidavit later stated that she did remember seeing him that day however her deposition testimony was that she didn't remember seeing him that day so there is some very troubling throughout court ruling so what was the ruling on that issue the ruling was even though they were different statements that she the court recognized that entered deposition testimony she says she didn't  the district court that this was this was inconsistent affidavit that should not be considered it was it was not inconsistent because it was made a later time she later remember  challenged i want our case law that if frowns on it what it was challenged and was there a ruling by it was in that it was denied it was a separate from the summary judgment that's correct and is that order appeal that is not two denials on the basis of standing because there were no heirs named i had to do a lot of probate research and file myself claim by the third time we had finally gotten the ruling from the probate court judge jackson said it was too late in the case to amend and that's how we got the second question is how is your claim substantively different from footnote two in shell regarding the federal statutory claims week we say appellant specifically  defendants willfully and intentionally failed to place michelle to an environment appropriate to her needs as required by the aid and the rehab back that sounds to me like you description of the claims here and yet that was the services that were offered it did not address the medical care of mr hardwick but that but shell had the same kind of play counted as non medical claims court co ncluded they were in substance cognize a bill medical treatment plan and i'm just saying to you you sort of brushed aside felt love that basis well our claims are medical and then i right a couple things that i wanted to bring up that mr shall discuss first of all the expert report the expert report he submitted to the court in connection with the motion for summary judgment but there was no affidavit or no testimony there was nothing that was attached to it to authenticate it so it was not properly in evidence i jested to it the judge didn't even consider it and it should not be considered by you because it was not properly a part of the i mean it should have but my point is it should not have been considered it wasn't mentioned by the court in her ruling on the motion for summary judgment it was not properly part of the record so it should not be considered by you and even if you do look at it it doesn't contradict the case law at all there's nothing in that report indicate that dr magnolia was deliberately indifferent in it was just a judgment call issue the case law clearly indicates that when there is a judgment call it i mean it's a potential claim for negligence but it's not deliberate indifference as a matter of law and there's multiple cases that are cited in the brief where there are medical and health care professionals that make professional judgments and the court has said that that doesn't rise to the level of deliberate indifference the other issue that mr shuttle talked about was the affidavit of  onal officer about a what she what what happened was in her deposition mr shuttle took her deposition and he asked her when you looked into the cell what did you see and she said you know sitting here right now i don't remember if he was in that i don't remember if he was in the cell at the time or not it would have made sense if you wasn't in the cell because as you pointed out judge kelly the way the system worked out is when it's time day room hours is what we call it recreational time when the inmates can leave the cell the correctional officer presses a button which disengages all the locks on the cells so saw him make telephone calls she recalls that she testified that she recalled him coming out for dinner taking his food and eating dinner in the recreational area she saw him there she testified that she saw him and there was nothing remarkable about remarkable about him there was nothing in particular that she noticed about him which is completely consistent with our position that this was in a good the argument here is that with the power after seven o'clock right right so one one or more is one right so she came back into the unit at seven o'clock missed disengage the the lock so that the inmates could leave mr heartl said oh i'm hopeful that i'll get back with my girlfriend i we're talking again and things are and well so mr harwood talks to his girlfriend five times on  the van a cop does not want to talk to you anymore leave her alone mr hardwick wanted to have his mother convinced savannah cobb to come to court so they could see each other in court and they could see each other in person and ms pierce said no i want you to leave her alone she doesn't want you anymore get out of her life leave her alone and then i did take the mother's deposition and she testified that she didn't appreciate that he was suicidal or that there was anything particular there so that phone call was made at seven eighteen pm the investigative report that is in for front of you there's a police report and investigative report there's an inmate statement in there who says that after he saw mr hardwick make a phone call and then go take a shower we also have the statement of his may who said he seemed fine that there was nothing unusual about his appearance at that time we know that officer made her rounds and we know that because they have an electronic system where the  correctional officer has to key in and punch a button along the way to ensure that they're doing what they're supposed to do she testified that she looked into mister hardwick cell she said the things that she looks for that when you're looking into a cell you look to see if you know who's there or if they're doing something that they're not supposed to be doing if there's a safety issue you know there was nothing that you know came to her mind  you know she may he may have been in there but certainly not doing anything that he wasn't supposed to be doing and he may not have been in there and if he wasn't in there there was a good reason for him not to be in there because he was allowed out of the cell just like it was so that was you know the last contact that she had with that particular cell intel she was discovered at eight fifteen pm now something along these lines something that th just discretionary correct then she says a bot it did not breach of ministerial duty to conduct our checks but my so what could put a curse to me is what if she was negligent in the way she did them i would think monitoring checks of someone a precautionary status is not scripted minister there i mean there is no evidence at all that she was negligent in the way she monitored her checks she testified her job is to look into the cell you know claim against the i mean i know that they asserted negligence claim against officer by take but there their claim was that she didn't monitor him but the evidence was that she clearly did she did her ministerial duties of checking into the cell and there's a case boehner that started in here boehner versus special school district and stevens versus don under missouri law which says that that as long  the employee is doing their ministerial duty which she did in this case then there's you know there's a munity if if you want her to do something other than do th checks and wants her to go beyond that monitor her in another way i mean moniteur mr hardwick in another way beyond just you know check doing the cell checks doing the specific ministerial duty with the evidence of what the extent of the ministerial duty the minister the evidence of the missed ministerial duty was that she was supposed to do the hourly cell checks and check in are the precautionary status guidelines or right i mean that part i mean yes i mean we do for all of me but that's my point yes doing doing routine cell checks i guess this is a general population facility in which some of the people are really quite well monitored right i understand ok well then if you take the extent of monitoring what you know what you want to do that's a discretionary function so for example that's by that was yes so for example she has discretion  what group of inmates she wants to let out of their cell to eat dinner first that's discretionary with her it's discretionary with her if she wants to you know check on precautionary inmates twenty times a shift i  you know it is the timing of it we have very discrete time records showing the events that took place so from the time i have the number of minutes in the record that he spoke to the mother i can't remember off the top of my head how long that was but i do have in the motion for summary judgment the call began at seven eighteen pm we know how many minutes he was on the phone with his mother and then we know that she checked the cell began her tour at seven twenty five so there's just only a few minutes in there just have a nother follow up question on the ministerial duty and it's probably in the record but is the duty the ministerial duty just checking the minutes there is there any tag on to that and you have to report if a b or c is happening in the cellar as well only i looked how the duty was was written in her occasions well in the record we can look and see i mean we have a suicide prevention policy in the record which just requires a really checks during that particular something right you're supposed to report it to your lieutenant or report it up the chain of command if you see something inappropriate and she did not see anything inappropriate that occurred at that time and it's far as the affidavit i know mr shadow made a deposition testimony and that there was nothing there you know there was no contradiction there that wasn't explained in a reasonable manner so so we have that and then i know he makes a lot out of the change of policy that happened after the fact which is a subsequent remedial measure that we did in good faith sit down after the suicide and see if something could be done to make this so it won't happen again and so we change our policy in response to mr hardwick suicide that shows good faith on behalf of the county you can't a subsequent remedial measure to prove underlying negligence or underlying bad faith it's it goes for other things so that just shows good faith behalf of the  cell and she doesn't remember anything about it doesn't remember seeing him in the what all the things that my opposing counsel has stated that she did she saw  remembered that she remembered a lot of things about him that was put in the subsequent affidavit but when i asked specifically in the deposition that's where we get the testimony that isn't is is the tale i guess that's what judge jackson had found when i filed the motion with respect to the supplemental affidavit but also correctional officer say not only did she know that mr hartwig was on cautionary status but she also knew of the hitting of the head incident because she happened to be just by chance  working on that floor where he was that day so in analyzing these claims you know the focus is on what the defendants knew with respect to the heard me please the court