party the district court started with an incorrect conclusion on page eighty nine of their ruling saying that violation of an internal policy could never constitute an eighth amendment rely on anything other than the prison policy and common sense to establish that the placement in the top bomb constituted deliberate of my client was as big as john candy had it at his large years to six three three sixty eight when he died the jail when he came in and asked for a copy of his id he gave his id they knew he was over three fifty the jail tested each of their staff  policies including the top bunk policies when they were hired and they don't deny or dispute that we have a large man placed in a thirty inch bunk which is eight inches smaller than the bed that my three year old sleeps  knowledge who want to check his id for these three fifty they know that he's obese as well i mean that's their policy three fifty they had actual knowledge it was three fifty or more from his id they don't have a scale at the columbus  obvious intoxication by isolating him from rooms that had bunks until his blood level should have could have reached alcohol issue because of a few things you know number one they didn't ask when he drank so applying a burn off chart that was last updated in one thousand nine hundred four to everybody general lee is is inappropriate second of all he showed them bloody stool which is you know embarrassing he took it seriously enough to show that it's study an indication of alcohol withdrawal in and of itself third you know he came in for drunk driving for his second offense he had been there the weekend before when they put him in the in the bottom bunk so they knew what to do they knew that he was a you know a significant drinker but there's there's no evidence is there in this record about how one treats people with that were alcoholics you know for example so for example there's no medical evidence to suggest that once your blood level blood alcohol level was zero you're safe there or not i mean it's met a fact if there had been medical evidence it would have said that it is not safe after your blood alcohol level is zero because that's exactly when things like the d t s start but you know it's but i don't see any medical evidence one way or the other and certainly no evidence that the jail people were at all aware of of these protocols what will number one  aware they even testified in their depositions that they knew of this policy and that they had taken the test well you know the upper bunk policy but why what was it that would have alerted them after the thirteen hour time in the holding cell where provided no treatment for his obesity and in the end we're talking about the most obvious condition mr simpson was obviously obese the obvious treatment the easy treatment was to place him in the bottom bunk and i think it's important to look at this court's decision and pettiest this summer where a physician's failure to splint and immobilized by the killers tendon was deemed to be enough to get to trial here we don't need any medical knowledge mr simpson it's really just presume they're all obese people are going to fall off the top bunk that we were unable to get a hold of the brain that's actually quite a picture of the brain was misplaced goodness  your honor your honor one key point we want to point out here is that summary judgment we should be deciphered between direct and indirect circumstantial evidence evidence is evidence and when you start with when the examination that the evidence of this guy if you started by ignoring explicitly on page eight and nine of her of her decision she says that this makes it like a proposition ignoring a policy can never equal well she's saying i think she's saying a harmless enough thing that you agree with to in your brief which is that you need to do more things but the eighth amendment does not require total compliance with every jail policy in the united states that's all yes absolutely yes and we would also argue to again that the summer of discourse decision and  top box instead of being thirty inches wide you know had been twenty four inches wide i started to do a couple of pieces of paper plus i mean surely there must be some point at which putting a man of that size on something with no railing with no protection would be deliberately indifference in that recklessness sensitive farmer versus brennan in the other cases sure  and so one question is is it already also at least objectively reckless to put mr simpson or if he was four hundred fifty pounds or five and you know i mean there's probably some point at which saying to somebody that's where you're going to barriers distance for three hours he's not going over the bank he turned over he moved within the bar the set this video evidence shows that he's able to get up into the bank he doesn't have any problem getting into the park he's able to do all of the things that a normal policy and problem with this policy and she said that the policy was and acted as a comfort measure for inmates not as a safety measure so the only evidence in the record we would posit is that this was a comfort measure not a safety measure and therefore again going back to your question judge that this isn't an obvious risk it was done as a comfort measure so and if you look at the other some of the other reasons that people are allowed a bottom bucket is you you can interpret it as a comfort measure as well that it's easier for them not for safety purposes so we would argue but even if we consider that there was an object really serious risk of harm there is no evidence that officer hard law was the officer who placed mr sampson end this bunker in the cell but the a more important fact is that he didn't know that he was there was a policy that required somebody who was three fifty or over to be in a bottom up i thought  that mr little said that they have to pass a test and that's part of the tests that may be part of the test your honor but he wasn't aware at the time he said it is just deposition testimony as i was not aware of the policy at the time and i was made aware of it subsequent i'm aware of it now but i was aware of it at the time so going back to them addressed prudence if mehmet says that the actor must be consciously aware of the risk and disregard if he's not aware subjective knowledge of the defendant does not require or does not establish that he was aware of the condition and didn't and fail to do something about in fact farmer tells us an official  see point two three it's ten thirty in the morning and you know that which is pretty good i do want to correct something i do want to correct the record that there was no evidence that he was ever asked when the last time he had a drink was because the record is half hours later so he was that point two three point two three sergeant tennille also asked mr simpson do you anticipate power possibly having signs of alcohol withdrawal mr sampson said no these are also clear record indications of the record from document at the lower court want to want to eight page eleven of thirty four they went through the medical screen with him they asked him are you on any medications he said the only medication i'm taking he didn't request the medical treatment he went ten and a half hour twelve hours thirteen hours in holding cell phone the only thing that he raised an issue about was blood in the store which the plaintiffs did not tie to any relation to or there's no admissible evidence any relation to the to the alleged chronic medical conditions of obesity and alcoholism the issues in this case are fairly clearly that these officers did not intend to punish mr simpson they did not punish mr sampson they took good care of mr simpson they listen to him when he asked for something they addressed concerns that he had the only concern that they didn't address was he wanted to move to a bar a cell with a blank when initially put him in a holding cell and they didn't because that was against their policy they were not punishing they did not intend to punish and that debt the evidence in this case cannot be construed as them punishing mr sampson they didn't know of a serious risk of harm there wasn't a serious risk of harm by the placement of him and the top bunk and no actor was consciously aware of a risk and failed to do anything about so in that circumstance the district was correct great consumer data for all the f nurse that the policy was intended for comfort the physician we had a physician who was in charge of the jails in hamilton county cincinnati ohio who said that the reason why hamilton county has this policy is for inmates safety the attention of the policy is a question of fact that you've been decided by a jury so that that's one thing second of all mr sims with morbidly obese they knew that he was morbidly obese the weekend before they knew he when he was in custody the prior week and they knew he had sleep apnea and finally the  didn't intend for the injuries happen it doesn't relieve the jail liability this was an obvious and easy to see medical condition and should have been accommodated as it was the weekend before that with that take you your honor is very much