d s versus city of new york and legal aid society don't want to repeat the brief that was my only i have a question for you could you explain what's happened with the state of new york as a defendant even in the amended complaint they didn't appear there and it seemed to me that by including the state of new york that would have enabled you to get discovery about personnel at goshen brookwood and rockland i saw some discussion of it just maybe you could explain where the state is in the state is that action  stayed the the stipulation by sent to the court was signed by the attorney for the state and myself and at the time that it was sent it had not been sown want ordered by the court by the court of claims and it has been so that case is stayed pending this decision you have a life claim against the state of new york and we have a lifetime the sin the plains and the court of claims you know well actually we have the court of claims action was commenced that state why were they not named here originally as defendants i beg your pardon and you just explained why they were you did not name them as defendants in this action because that would be a prior action pending and would be my motion to dismiss that cause that action because there is a prior action pending and the whole purpose of beginning the case and the court of claims is because of the statutory requirement know that issue that had to be brought so if we have then also after having the court of claims involved where we obtained the stay and at that point we would have then brought in the state of new york in the district york in the state until until january two thousand and nineteen thank you i've now there was a question for you is d s still a minor or i was trying to figure out his he just recently i think he became eighteen and and is he capable of giving consent to your representation or is his circumstance such that but as far as you know he consents to your oh yes yes absolutely but i mean as far as medically i haven't had a valuation and do you have you appealed rather than we plead his decision on that that the plaintiffs conserve amended complaint to answer the defendant's issues and he didn't say that we couldn't answer  his his findings so we didn't know we were there was very little we can do and also in the many cases that i've cited here that the second circuit has ruled they were on this issue of sufficiency of complaint at the allegations were implausible you have this court has previously ruled that implausibility doesn't mean probability and we couldn't have those records because those records a sealed and we can't get those until there's a case a live case in the district court and that's the whole point and in these cases that i've cited that this court has previously ruled page twenty twenty seven twenty eight twenty nine and there are still and there are so many of them it's for example in two thousand and sixteen anderson news versus american simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence i think part of the district court's difficulty here was that you need city defendants and the legal aid state law state law they acted together in the sentencing phase here because the children's aid society has rules and regulations which are attached as exhibits to the brief  appellant where they have policies of investigating and determining mental capacity and psychiatric disabilities and so on and they didn't do that and they did neither  defendant in the next phase of proceedings which it would be the sentencing and make them a state actor because the children a society by its own mission statement is responsible for the welfare and and proceedings of against juveniles if this court were to uphold judge sterling's ruling then where does it end aged fourteen each twelve age ten a child can decide whether he's going to go to prison or whether he's going to go to a psychiatric hospital and where does it end so if we appoint federal defenders who happened to catch the client at age seventeen the federal defender becomes a state actor becomes a government a government act or for purposes that would be a bit of an action i you don't have a case for that proposition a legal aid lawyer representing a child who's becomes a state actor well if they're in  conferences and and discussions with regard to this child deciding what's to become of him he was to a doctor when you do that it depends to what extent i would say what extent yes we will hear from this falls under you first the court susan paulson on behalf of the administration for children services and the city of new york your honor represented by counsel and with two opportunities to plead the plaintiff has failed to sufficiently plead any claims upon which relief can be granted the plaintiff did not even address in our brief the fact that the fourth fifth and sixth amendment claims are barred by the supreme court's decision and had to be humphrey in the only argument in that regard is was that conditions of confinement are not so bar which the district court did not hold with regard to the other claims the district court dismissed in the first the eighth in the fourteenth amendment claims for facial impl  as the eighth amendment claim with regard to the d s is time at crossroads secure center which i think is operated by the city and which it's alleged that d s again at age fourteen was assaulted and severely beaten by other children sustaining injuries to his face and so on denied adequate medical care remaining there without medication or treatment for a couple of months why aren't the pleadings they are adequate to  survive the bunching to dismiss yes your honor i would direct your honor's attention to page eight thirty two of the appendix where in paragraph fifty five of the complaint is the entirety of the allegation against s for there for the actions that are alleged to have occurred at the crossroads secure center and you will see from reading that that there is that allegation as you just yourself articulated that the plaintiff was assaulted and severely beaten while there and that he was denied medical attention what is missing from that allegation is any allegation that the defendants knew of and disregarded an excessive risk of harm and that's what's required in order to state a claim under the  and for that reason because there is no factual content that is pled that would allow the court to infer that there's an eighth amendment violation that claim is facially implausible a number of cases including carmel versus lonnie and britt first is a legal aide says that a conviction must be disturbed before you can bring any type of a malpractise case and as counsel has pointed out in her brief in appendix the conviction has never been age fourteen whether he'd like to be sentenced to four years in prison or one year in a psychiatric hospital and they were linguistic difficulties i think i can't tell whether his mother was present or not and he chose prison was the thank you as we're you know you've reserved three minutes very briefly i think that judge johnson also said that hecht does not apply and his decision by recollection serves me correctly ok thank you very much and i check that thank you very much thank you all will reserve decision in this case