Legal Case Summary

Adib Makdessi v. Lt. Fields

Date Argued: Tue Oct 28 2014
Case Number: D-14-0002
Docket Number: 2590950
Judges:Diana Gribbon Motz, Dennis W. Shedd, James A. Wynn, Jr.
Duration: 40 minutes
Court Name: Court of Appeals for the Fourth Circuit

Case Summary

**Case Summary: Adib Makdessi v. Lt. Fields** **Docket Number:** 2590950 **Court:** [Insert appropriate court name if known; e.g., United States District Court, etc.] **Date of Decision:** [Insert decision date if known] **Parties Involved:** - **Plaintiff:** Adib Makdessi - **Defendant:** Lt. Fields **Background:** The case of Adib Makdessi v. Lt. Fields centers around allegations involving wrongful conduct by Lt. Fields, potentially in the context of law enforcement action. The Plaintiff, Adib Makdessi, brought the lawsuit against Lt. Fields, claiming violations of rights and appropriate legal statutes. **Legal Issues:** The main legal issues of the case likely include: 1. The legitimacy of the actions taken by Lt. Fields in the course of his duties. 2. Possible violations of constitutional rights, such as due process or excessive force. 3. The applicability of qualified immunity for law enforcement officials. **Facts:** - Adib Makdessi alleges that the actions of Lt. Fields resulted in [details on the specifics of the incident, such as unlawful detention, use of excessive force, etc.]. - [Additional pertinent details about the incident, including date, location, and any evidence presented in court.] **Court's Analysis:** The court examined the evidence presented, including testimonies from both parties and any relevant documentation. Key considerations included: - The conduct of Lt. Fields during the incident. - Whether there was a legal justification for his actions at the time. - The impact of the actions on Adib Makdessi. **Ruling:** The [Court's decision, summarizing whether the claims were upheld or dismissed, and any penalties or remedies ordered]. **Implications:** This case may set important precedents regarding the boundaries of law enforcement authority and the legal protections available to individuals against potential abuses in police conduct. **Conclusion:** The outcome of Adib Makdessi v. Lt. Fields provides significant insights into the interactions between law enforcement practices and civil rights, emphasizing the ongoing discourse on accountability within law enforcement agencies. (Note: This summary is hypothetical and illustrative, as I do not have access to specific details of the case. For accurate information, please consult relevant legal databases or court records.)

Adib Makdessi v. Lt. Fields


Oral Audio Transcript(Beta version)

Please support. My name is Steve Keel. I represent the appellant in this case, Mr. McDesy. I'm joined by my colleague, Elliott Schulder. Mr. McDesy was brutally raped and beaten in his cell by his cellmate at Wallens Ridge State Prison on the morning of December 21, 2010. This was an attack that was so severe he required multiple sutures and spent 47 days in the prison and firmery. Let me ask you the capacity of the facts in this case and how we out of view those facts. There was a bench trowel here and now is on appeal to us. And you're giving facts that are favorable to your client. Are those the facts upon which our review arrests? Are we to look at the facts as found by the court? I believe this is an appeal of the district court opinion and the district court adopted the facts of the magistrate

. But I also want to point out a clear error standard. This court has found that it can all it is not only look at whether there was overwhelming evidence from the facts that an error was made, but will also look to the processes of the fact finding process. And this court has said that if it is clear that the actual whatever the actual facts may be, if the findings under review were induced by an erroneous view of the controlling legal standard, then clear error can be found. And here the magistrate judge repeatedly talked about in her report and recommendations. So you're telling us the facts within I toward whether the legal standard was incorrectly as far as that's correct. And the it appears that the magistrate judge did not apply the full incorrect legal standard here for delivered in difference. She was looking to whether the defendants, whether the evidence showed the defendants did know she kept saying of the risk of serious harm to Mr. McKessie. And she did not look at whether the evidence, this the voluminous complaints and grievances that have been filed showed the defendants must have known. And because she did not apply that must have known legal standard that is clear error, we believe on that point. And then this this Supreme Court and former V

. Brandon and this court in Odom and number of other cases had. And for any facts any facts that the magistrate judge was operating on and the district court in adoptive numbers operating on any facts themselves to get the legal standard for any facts that you think were clearly erroneous. The measure judge used facts that were clearly erroneous in another cell. The conclusion that the defendants did not know of these complaints and grievances and the attack as it was going on was clearly erroneous because there is an overwhelming amount of evidence. But that that that also puts a legal standard of should have known I'm just passing the facts themselves. Did she say your your defendant was in a certain place or that somebody else was somewhere else or did see or didn't see that you think is clearly erroneous. Yes, on the record of this case it seems she had the full of the record facts before we're just saying that she did not apply the correct standard to those facts and that when looking at those facts and you have you know in the year leading up to this attack 20 grievances complaints more than 20 letters filed 16 of them specifically mentioning sexual assault saying I've been sexually assaulted numerous times with this prison when there is a state policy. The state that says any employee of a prison if they have a reason to suspect sexual assault should immediately report it to their supervisor when you have the supervisors testifying that yes, I would be made aware of this that complaints are sent to me that if there's a security issue, I am aware of it. Then it shows that these defendants must have known that Mr. McDeath was at a serious what's your strongest argument that they these defendants must have known. What's your strongest factual argument that they must have known the several of the complaints and grievances were copied to the defendants in this case

. There was one in 2007 when the first move to Wallins Ridge State Prison where he said I fear for my life that was copied to Captain Gallagher to defend in this case. In on December 9, 2010, just 12 days for this assault Lieutenant Fields spending here was copied on a complaint in which Mr. McDeath said that I will be intimidated into dropping this complaint. I just like the other complaint was mentioning intimidation Lieutenant Fields is named on this complaint at J.A. 273 and then in February of 2010, there was a fight between Mr. McDeath's cellmate who attacked him Michael Smith, this is before they were still made. Michael Smith went into the cell of another prisoner and attacked him so severely that the prisoner required restrictions. The prison report on this attack in February 2010 states that Captain Gallagher was notified of this and met with Michael Smith to discuss this attack on another person. Is your argument that from the facts that were established as being known by these defendants, they should have known it was delivered in difference or is your argument they should have known the facts somehow in the normal course of communications that from which they could then know there was a problem, which is it? They should have known the facts or from the facts or should have known. It's the former is that they must have known that there was a risk here, but this is not just a few isolated things

. In other words, you don't point to a fact that anybody specifically knew that that person in the position that person should have known, even if he didn't know directly, of the risk. But that in the normal course of events, that person or those persons should have been informed of the facts. That's what you think. There's a lack of communication in this case. No, it's more than that. It is that one of the facts is this 2007 complaint, not if you have to get a hard from Mr. McSey, which he says I fear for my life. So that is the fact that shows that he must have known, not just that he should have known. We know that Captain Gallowhar met with his cellmate prior to their being cellmates and was aware that this was a violent predator with a history of prison infractions who was about half the age of Mr. McDessie, who was a much higher security level rating. And they continue to leave in the cell together

. These two inmates, Mr. McDessie is 49 years old. He's five foot four. He has a history of back problems. They, you know, he is placed into a cell and left in a cell, even after he has made some point. Wasn't there evidence that there was some sort of prison policy that you separated. You wouldn't put two people like that together in a jail in a cell. There's a pretty, a prison policy that you're supposed to consider these kind of factors about the, you know, their age, their, they rate them on a scale of, you know, we know about the scale. One to five about, you know, and they were, you know, 99. Mr. Smith was at the top of the scale

. Mr. McDessie was lower on scale and much older and has this history of saying that, you know, I have been, because I have been sexually assaulted or physically assaulted by every stalemate I have had at this prison. He is trying every way he knows how to alert these prison officials to the fact that he is at real risk from his stalemate. It seems that what you are saying is that taking the facts as they are and you look across it in terms of policy. There, the court should have determined as a matter of law that they must have known. That's correct. Well, I don't know that you, I didn't read your brief is going that far. Maybe that's one of your arguments. You sort of post five or four theories you get from farmer. And the one that was the obvious risk theory, it seemed to me that the Supreme Court did in fact in farmer talks quite a bit about these obvious risks. And here and so the fact that there could be an obvious risk basis for recovery isn't just sort of a passing reference

. Talk about it length. If you should demonstrate that, then it seemed to be you should so circumstantial evidence of the obvious risk, then the prison official can come back and offer evidence why it was not an obvious risk. And I think the posture you're in now is you're saying that the district court, the magistrate judge didn't recognize the obvious risk factor theory. But if they had you wouldn't be necessarily and even if they found there was an obvious risk, you wouldn't be entitled necessarily to judgment as a matter of law. Under farmer, the prison officials could come back and robust that. Correct. That's correct. They could, but we also. A statement in what you said, well, we also believe that. It's a argument for you right there. You didn't have that

. You would have been lost in the woods. It's not just one person's word against another. It's not just Mr. McDesy's word against the word of these of the prison officials who come back and say something different. I mean, there is the, there's this written record with this weight of evidence and the magistrate judge even recognized during the hearing she interrupted the state during their closing argument and said, you know, over and over, he filed requests that reference numerous sexual assault at Walens Ridge. And she said it just seems to me that there's no one at Walens Ridge who either listen to this man or believe this man. Anything he said. But that's not inconsistent with deciding that these defendants didn't have that knowledge. That's just saying something and it looks to me like somebody there certainly knew, but I thought she made a factual finding these defendants did not have knowledge of those prior complaints. Didn't she make that factual finding? She. I just if you know it don't know I believe she she did, but we're saying that that she made that she was not using the proper legal standard looking at the fact that that the facts find her 10 in her that there was delivered in difference from the fact that the risk was obvious, which is spring courts that your position

. I don't know if your position is that she seemed to misread too narrowly read this spring court case. She she correct. She required it as reading that there had to be direct actual knowledge and she did not consider a second method of proving knowledge. Why don't you take just so I understand just take 15 or 30 seconds if you could and state for me then exactly what your theory is that the risk was obvious that the prison had to know it. Based on the number of complaints filed the clear language of the complaint stating sexual assault based on the state policy of acquiring employees for respect sexual assaults to their supervisors and based on the testimony of the supervisors that yes they would be made aware of these complaints. Therefore is that on the court know that on the court factual finding about who knew that that that that just undercuts the factual finding that she she just didn't she just made a finding that they didn't know what you think she should have it wouldn't be a factual finding it would just be a legal determination that that the prison was aware I mean what what is that very. That that based on the weight of the evidence they must have known must have been aware that these defendants that that the three captain galahar we tried in fields sergeant gang must have known the other the three other defendants officers. Valamie boy and all who are on duty that morning officer boy was in the control room which was just 30 feet 30. Yeah, but she but she out there she found that didn't they test find nothing was different how they'd walk past his sale and and he didn't say anything to him and he started a lunch or something I thought there was a factual basis for those on the scene she could just say I disagree with your testimony and I accept their test. Well, but those are one of the officer Belamie did walk by the cell around 1056 in the morning about an hour before Mr. McKessler

. Well, let me call and boy she let out right away and I mean the district court let out out of it and that they're having been deal with respect to them you have. I know you didn't handle it so it seems to me they're in a different category they didn't deserve the issue they didn't take issue with the magic judges. We believe that the I know you believe they did but you have a better case shall we say with respect to the other three would you agree with that. But we do believe that they did sufficiently object to the findings as to the three officers who were on duty they talked about the testimony of all six defendants they said each of these six did not uphold their sworn duty to protect the safety of Mr. McKessie. In a very serious attack the pictures are in the joint appendix and it just seems incredible that officer boy in sergeant King who are both in the control room as this is going on 30 feet from where it's happening say they did not hear a thing. That's another instance where where they must have known where you have another inmates gang who was allowed by the officers would have heard this. And there have been cases in see I don't think you get I speak only for myself get anywhere just getting the fact. Yes, but we're based on a system where trial courts decide facts and we don't you know unless you have a document that they've ignored you know you really you just don't get anywhere fighting the facts. So you used me you are reduced and I thought that you were going there that you were only relying on miss application of the law. So even though boy who is one of the three that is out because he didn't preserve his arguments anyway was in the next room it doesn't go anywhere with me because the manager judge knew that found it's a fact that's been here. So there you go what what your case has to rest on was that all these reports and this policy made situations because there was in the words of farmer an obvious rip. And that they should have been put to the police officers the prison officials to rebuff that and they they well may be able to and and and the magistrate says that you know McKet in her report McKetty contends that officer boy should have heard or seen the assault. However, the evidence does not show that boy did hear or see the assault as is necessary to make a showing of deliver it's actual knowledge as opposed to being able to infer it as a drink or on that point of law we believe there's. I think we understand your argument here from the government. Thank you. Morning, wait a minute please the court Trevor Cox for Lieutenant fields and the other prison official dependence. The differential standard of review here makes this a pretty easy case. I guess you cannot show that any of the lower courts findings were fairly erroneous. I guess you like any inmate had a heavy burden to carry in trying to demonstrate. Just my questions and sort of put this case in on fence. Right if you look at the backs becomes one

. So there you go what what your case has to rest on was that all these reports and this policy made situations because there was in the words of farmer an obvious rip. And that they should have been put to the police officers the prison officials to rebuff that and they they well may be able to and and and the magistrate says that you know McKet in her report McKetty contends that officer boy should have heard or seen the assault. However, the evidence does not show that boy did hear or see the assault as is necessary to make a showing of deliver it's actual knowledge as opposed to being able to infer it as a drink or on that point of law we believe there's. I think we understand your argument here from the government. Thank you. Morning, wait a minute please the court Trevor Cox for Lieutenant fields and the other prison official dependence. The differential standard of review here makes this a pretty easy case. I guess you cannot show that any of the lower courts findings were fairly erroneous. I guess you like any inmate had a heavy burden to carry in trying to demonstrate. Just my questions and sort of put this case in on fence. Right if you look at the backs becomes one. Inescapable conclusion. But do we go back and look to see if court applied the right standard. And if the standard that the court applied was they had to have actual knowledge as opposed to an obvious risk would then put the burden on the other side to show it's not that perhaps this could have been turned out different. But which would lead to the conclusion that if they didn't do the right standard and they need to go back and do it the right way. Unless you can show something that even if you did the right standard it wouldn't be in a different. Yes, Your Honor. I believe that the factual determinations that were made credibility determinations that were made by the magistrate after hearing testimony for two days and receiving 100 exhibits and examining a dozen witnesses and video footage. But the right standard applied even if you believe that but that's only if you accept that that she applied the right standard did she apply the right standard. Yes, she did if your honor under none of none of the well the farmer case holds that defendants cannot be cannot be found. 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or by looking at you. the bill of supreme court as well as be the bill of supreme court of drama law that those convincing attorneys or the guilty

. Inescapable conclusion. But do we go back and look to see if court applied the right standard. And if the standard that the court applied was they had to have actual knowledge as opposed to an obvious risk would then put the burden on the other side to show it's not that perhaps this could have been turned out different. But which would lead to the conclusion that if they didn't do the right standard and they need to go back and do it the right way. Unless you can show something that even if you did the right standard it wouldn't be in a different. Yes, Your Honor. I believe that the factual determinations that were made credibility determinations that were made by the magistrate after hearing testimony for two days and receiving 100 exhibits and examining a dozen witnesses and video footage. But the right standard applied even if you believe that but that's only if you accept that that she applied the right standard did she apply the right standard. Yes, she did if your honor under none of none of the well the farmer case holds that defendants cannot be cannot be found. And if the farmer is not a legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal legal 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or by looking at you. the bill of supreme court as well as be the bill of supreme court of drama law that those convincing attorneys or the guilty. the crime styles in to enforce Jews and Rapids. instilling Wiebe of raped and guilty. instance cabo begging crime to conforms to by the bill of crime done by by of covert, guilty legal legal legal legall charges. if you did something, bone pedlicate or guilty legal legal legal legal law another person. if you don't know lie, in a law that law jail pay the jail platinum by the law statute. responded. Also, it appears the standard protocol separating inmates alleging criminal sexual assault was not followed when he filed his offender request for information in 2010. I just think in light of that it's almost a disimagined judge. Doesn't know that an obvious risk can, that's not necessarily the can state claim. Well, Your Honor, I think that this sort of paviot if you will or this glass sort of paragraph. Were you at the hearing? No, no, Your Honor

. the crime styles in to enforce Jews and Rapids. instilling Wiebe of raped and guilty. instance cabo begging crime to conforms to by the bill of crime done by by of covert, guilty legal legal legal legall charges. if you did something, bone pedlicate or guilty legal legal legal legal law another person. if you don't know lie, in a law that law jail pay the jail platinum by the law statute. responded. Also, it appears the standard protocol separating inmates alleging criminal sexual assault was not followed when he filed his offender request for information in 2010. I just think in light of that it's almost a disimagined judge. Doesn't know that an obvious risk can, that's not necessarily the can state claim. Well, Your Honor, I think that this sort of paviot if you will or this glass sort of paragraph. Were you at the hearing? No, no, Your Honor. No, when you read the transcript of the hearing, it appears the magic of the judge is I think you're somewhat surprised with the conclusion that she comes to here. She seems more sympathetic with you. Your Honor, it's clear that she's, she believes that more should have been done in handling the grievances from Mr. McDesy, but it's not clear. Well, I guess I will say it is clear that it doesn't change the ultimate risk position because these these defendants didn't actually know know anything. These grievances were directed towards mental health professionals and in fact, she says, you know, he had not been able to receive mental health treatment and then she quotes mental health professional clerk for saying, hopefully, hopefully you will be well soon. Instead of providing the treatment that the magistrate judge believes that that he needs, with reference to the the offender of request for information October 28th, stating they have been sexually assaulted by a cellmate, that I believe that's in dispute. There are two versions of this document. One of them, which clearly appears to then doctor after the fact, indicates after saying, I have not been eating and I lost weight because of few reasons. And he adds sexually assaulted by my current cellmate, whereas the original version on 271 doesn't have that language. Well, if you're just a dispute, it seems to be that she's, she's resolving it

. No, when you read the transcript of the hearing, it appears the magic of the judge is I think you're somewhat surprised with the conclusion that she comes to here. She seems more sympathetic with you. Your Honor, it's clear that she's, she believes that more should have been done in handling the grievances from Mr. McDesy, but it's not clear. Well, I guess I will say it is clear that it doesn't change the ultimate risk position because these these defendants didn't actually know know anything. These grievances were directed towards mental health professionals and in fact, she says, you know, he had not been able to receive mental health treatment and then she quotes mental health professional clerk for saying, hopefully, hopefully you will be well soon. Instead of providing the treatment that the magistrate judge believes that that he needs, with reference to the the offender of request for information October 28th, stating they have been sexually assaulted by a cellmate, that I believe that's in dispute. There are two versions of this document. One of them, which clearly appears to then doctor after the fact, indicates after saying, I have not been eating and I lost weight because of few reasons. And he adds sexually assaulted by my current cellmate, whereas the original version on 271 doesn't have that language. Well, if you're just a dispute, it seems to be that she's, she's resolving it. I mean, we're letting resolve every other factual dispute. You're on that to not is it sure is that your answer that those comments, the magistrate judge made there, what you call the caveat of the end, is that she's concerned of something happened. She's just made it clear though you can't, can it own these defendants? That that's certainly a reading that you could fairly take that that what are the reading to you that they did that mental health mental health treatment should have been should have been provided to him. And and he wasn't he wasn't getting that the treatment that he that he made I don't think I don't think I don't see where exactly you did that. Well, for instance, he's he allegedly suffered from post-traumatic stress disorder and then the qualified mental health professional park responded. Hopefully you will be well soon. Yes, but that's a quote from what the mental health presider didn't give him any any treatment that hopefully you will be well soon. That's right. That's right. That's right. That's not the magistrate judge saying that there should be mental health treatment

. I mean, we're letting resolve every other factual dispute. You're on that to not is it sure is that your answer that those comments, the magistrate judge made there, what you call the caveat of the end, is that she's concerned of something happened. She's just made it clear though you can't, can it own these defendants? That that's certainly a reading that you could fairly take that that what are the reading to you that they did that mental health mental health treatment should have been should have been provided to him. And and he wasn't he wasn't getting that the treatment that he that he made I don't think I don't think I don't see where exactly you did that. Well, for instance, he's he allegedly suffered from post-traumatic stress disorder and then the qualified mental health professional park responded. Hopefully you will be well soon. Yes, but that's a quote from what the mental health presider didn't give him any any treatment that hopefully you will be well soon. That's right. That's right. That's right. That's not the magistrate judge saying that there should be mental health treatment. Right. No, but I think that's the point is that that's what the magistrate judge was concerned about that more more should have been more should have been done for him. You know, there's there's no there was no evidence to suggest that these these grievances were seen by these defendants. They didn't have they didn't have knowledge of it. Who said policies what happened with the grievances? I'm sorry, Your Honor. Who said the policies? What are the policies? Prison of files grievances? What happens with? Well, there there are different kinds of forms that you can you can file your honor and I will admit my understanding of this is is somewhat approximate. So I'm I'm asking because if a person of files grievances and the answer and the end of a bunch of grievances in this prison of file and number of grievances is the defense then we didn't know because we didn't look at it or we didn't know because our policy didn't allow us to look at it in a way. The particular. Yes, is that the answer? There is your honor or a policy that's compliant with with the pre-active of 2003 when there are specific allegations of sexual assault that are actionable action is taken. These don't fall into that that category. These are not specific allegations of sexual assault

. Right. No, but I think that's the point is that that's what the magistrate judge was concerned about that more more should have been more should have been done for him. You know, there's there's no there was no evidence to suggest that these these grievances were seen by these defendants. They didn't have they didn't have knowledge of it. Who said policies what happened with the grievances? I'm sorry, Your Honor. Who said the policies? What are the policies? Prison of files grievances? What happens with? Well, there there are different kinds of forms that you can you can file your honor and I will admit my understanding of this is is somewhat approximate. So I'm I'm asking because if a person of files grievances and the answer and the end of a bunch of grievances in this prison of file and number of grievances is the defense then we didn't know because we didn't look at it or we didn't know because our policy didn't allow us to look at it in a way. The particular. Yes, is that the answer? There is your honor or a policy that's compliant with with the pre-active of 2003 when there are specific allegations of sexual assault that are actionable action is taken. These don't fall into that that category. These are not specific allegations of sexual assault. These are pleased for health for PTSD for sexual assault that he alleges to have occurred three years ago. No no substantiation. So it's not clear what action would be necessary. I will say that there's in addition to. With all of the grievances the individual that he was put in that sale with one that we described the bleeding where they did everything they could once they found out. So he speak but the person they put him in there with was I guess he was a known game member and if I don't know what he said was true or not but that person had a bunch of things against him of all kinds of infractions he had in prison that would lead to a person who's very valid very motivated to do sexual types acts against someone and he's much bigger than he was and yet he's locked in this sale with him. And that's the same person that ultimately is seen when the door finally opens, chases him out and beats him until someone comes up and stops him getting beat on. And all this is in the context of these grievances that have been viled that you say did not rise to the level of doing anything other than seeing here somebody with a problem. That's correct your honor. The what is the rest of that there was a physical altercation that the sellmate did follow him out but that was the first evidence of any any rest. Not really what I'm going at I'm really getting at the business

. These are pleased for health for PTSD for sexual assault that he alleges to have occurred three years ago. No no substantiation. So it's not clear what action would be necessary. I will say that there's in addition to. With all of the grievances the individual that he was put in that sale with one that we described the bleeding where they did everything they could once they found out. So he speak but the person they put him in there with was I guess he was a known game member and if I don't know what he said was true or not but that person had a bunch of things against him of all kinds of infractions he had in prison that would lead to a person who's very valid very motivated to do sexual types acts against someone and he's much bigger than he was and yet he's locked in this sale with him. And that's the same person that ultimately is seen when the door finally opens, chases him out and beats him until someone comes up and stops him getting beat on. And all this is in the context of these grievances that have been viled that you say did not rise to the level of doing anything other than seeing here somebody with a problem. That's correct your honor. The what is the rest of that there was a physical altercation that the sellmate did follow him out but that was the first evidence of any any rest. Not really what I'm going at I'm really getting at the business. He's put in their whippedist guy but he has a series of grievances that are there and maybe one grievance is something you can kind of pick aside but the person keeps putting in grievances and I mean in there I mean we're dealing with obvious rest here as opposed to if we take the posture that there's much right from the going dependence that the magistrate may have caught that that obvious rest wasn't enough and we need to have actual but these weren't these weren't grievances against this sellmate. These these were grievances related to alleged sexual assault that occurred years ago and in fact the district toward the adoptive the magistrate judges report made no finding that a sexual assault had occurred. So what we're left with is I'm sorry I thought everybody agreed that there was a sexual assault here. The the investigation that VDoc conducted said there was no sexual assault and I am in that everybody agreed that there was a beating that lasted for hours. I'm sorry a beating that lasts some hours. I think there's a dispute about that as well your honor. All the states it only could be 45 minutes or so. I think what the evidence showed was that as soon as there was a a known risk which was which was known when he left the cell and his cellmate started to punch out. He's already been they've seen he's already been punched and battered and bloodied and had some internal injuries as well by that time so something had to have preceded that. Yes right. Yes but we and the evidence is on just either that they were alone together for I thought about three hours

. He's put in their whippedist guy but he has a series of grievances that are there and maybe one grievance is something you can kind of pick aside but the person keeps putting in grievances and I mean in there I mean we're dealing with obvious rest here as opposed to if we take the posture that there's much right from the going dependence that the magistrate may have caught that that obvious rest wasn't enough and we need to have actual but these weren't these weren't grievances against this sellmate. These these were grievances related to alleged sexual assault that occurred years ago and in fact the district toward the adoptive the magistrate judges report made no finding that a sexual assault had occurred. So what we're left with is I'm sorry I thought everybody agreed that there was a sexual assault here. The the investigation that VDoc conducted said there was no sexual assault and I am in that everybody agreed that there was a beating that lasted for hours. I'm sorry a beating that lasts some hours. I think there's a dispute about that as well your honor. All the states it only could be 45 minutes or so. I think what the evidence showed was that as soon as there was a a known risk which was which was known when he left the cell and his cellmate started to punch out. He's already been they've seen he's already been punched and battered and bloodied and had some internal injuries as well by that time so something had to have preceded that. Yes right. Yes but we and the evidence is on just either that they were alone together for I thought about three hours. That's correct but for instance what is the comment that you're arguing that I thought it was I thought it was a state's argument that he was he was beaten and bruised but you thought it was basically there's some short period before he ran because don't you have testimony about these some defendants going by the cell and talking to him. That's right. That's the time period which there's an asserted you know long beating going on but they say that they didn't say anything he looked fine so I think at the state that in the dispute there was an altercation you just don't think and you think the measure judge supported you that it wasn't ongoing it wasn't a two or three hour or deal that that's correct I mean go ahead and counsel mentioned this that officer Bell me walked by at 10 to 6 a.m. looked in saw nothing out of the ordinary no blood nothing and this was on video footage that was viewed by the by the this by the magistrate judge. The concept being this is that he's in prison and there are games there and if you run your mouth you've got a problem and so some of this at least from his perspective is that you know he's been called a snitch and every time that comes up there's retaliation and there are people in that prison system that do not take kindly to you saying to someone an officer who walks by hey this guy and he has been beat me he's raped me that sort of thing when you know he's a gang member and then you also have at least from their perspective and I notice not a light most favorable but I'm just you know in terms of the obvious risks I'm going you also know that if if if he says these things that the officers are likely to do nothing and if you do nothing you are left in that prison with a bunch of gang people who are going to get you back for what you've done so there's this I mean it's not like he's just out in a general public and he's being beat up in a department or something he yields from an officer walks by he is in prison and he is with gang members and we know this I mean that part about it I think it's pretty much obvious from the record there are there are a few things that makes that he could have done if he were really in debt a vast forest assignment death row where he'd be in a cell by cell I'm not going to comment on that I will say I would like it from these circumstances I won't comment on that either the what I will say is that there's a policy that if he thought he was in danger he could report to anyone there and say I am I am fearful for my life as he did that I know that they say he didn't but he says he did I mean I've never seen a record so many complaints he filed him with somebody I mean that needs to file them according to the state with the right person so it was not bad he said a great great number of things and the well he said them in writing in a timely fashion he did and but none of those allegations were were substantiated and and that's very judged decline to to give them credibility as she was in total to do so because of those credibility determinations and the standard of review here this court should affirm thank you thank you very much I would I just would like to point out that the magistrate judge did apparently get credibility to the grievances and complaints based on her comments in her report recommendations and that trial that numerous grievances were filed and that nobody listened to him and that we would request this case be remanded for determination under the proper legal standard that the defendants here must have known because the risk was obvious and it could that could be inferred from the evidence here thank you mr. Feinstein thank you mr. Feinstein I understand that you all are court appointed we very much appreciate your efforts for your clients did fine job we will come down and greet the lawyers and then go directly to our next case

Please support. My name is Steve Keel. I represent the appellant in this case, Mr. McDesy. I'm joined by my colleague, Elliott Schulder. Mr. McDesy was brutally raped and beaten in his cell by his cellmate at Wallens Ridge State Prison on the morning of December 21, 2010. This was an attack that was so severe he required multiple sutures and spent 47 days in the prison and firmery. Let me ask you the capacity of the facts in this case and how we out of view those facts. There was a bench trowel here and now is on appeal to us. And you're giving facts that are favorable to your client. Are those the facts upon which our review arrests? Are we to look at the facts as found by the court? I believe this is an appeal of the district court opinion and the district court adopted the facts of the magistrate. But I also want to point out a clear error standard. This court has found that it can all it is not only look at whether there was overwhelming evidence from the facts that an error was made, but will also look to the processes of the fact finding process. And this court has said that if it is clear that the actual whatever the actual facts may be, if the findings under review were induced by an erroneous view of the controlling legal standard, then clear error can be found. And here the magistrate judge repeatedly talked about in her report and recommendations. So you're telling us the facts within I toward whether the legal standard was incorrectly as far as that's correct. And the it appears that the magistrate judge did not apply the full incorrect legal standard here for delivered in difference. She was looking to whether the defendants, whether the evidence showed the defendants did know she kept saying of the risk of serious harm to Mr. McKessie. And she did not look at whether the evidence, this the voluminous complaints and grievances that have been filed showed the defendants must have known. And because she did not apply that must have known legal standard that is clear error, we believe on that point. And then this this Supreme Court and former V. Brandon and this court in Odom and number of other cases had. And for any facts any facts that the magistrate judge was operating on and the district court in adoptive numbers operating on any facts themselves to get the legal standard for any facts that you think were clearly erroneous. The measure judge used facts that were clearly erroneous in another cell. The conclusion that the defendants did not know of these complaints and grievances and the attack as it was going on was clearly erroneous because there is an overwhelming amount of evidence. But that that that also puts a legal standard of should have known I'm just passing the facts themselves. Did she say your your defendant was in a certain place or that somebody else was somewhere else or did see or didn't see that you think is clearly erroneous. Yes, on the record of this case it seems she had the full of the record facts before we're just saying that she did not apply the correct standard to those facts and that when looking at those facts and you have you know in the year leading up to this attack 20 grievances complaints more than 20 letters filed 16 of them specifically mentioning sexual assault saying I've been sexually assaulted numerous times with this prison when there is a state policy. The state that says any employee of a prison if they have a reason to suspect sexual assault should immediately report it to their supervisor when you have the supervisors testifying that yes, I would be made aware of this that complaints are sent to me that if there's a security issue, I am aware of it. Then it shows that these defendants must have known that Mr. McDeath was at a serious what's your strongest argument that they these defendants must have known. What's your strongest factual argument that they must have known the several of the complaints and grievances were copied to the defendants in this case. There was one in 2007 when the first move to Wallins Ridge State Prison where he said I fear for my life that was copied to Captain Gallagher to defend in this case. In on December 9, 2010, just 12 days for this assault Lieutenant Fields spending here was copied on a complaint in which Mr. McDeath said that I will be intimidated into dropping this complaint. I just like the other complaint was mentioning intimidation Lieutenant Fields is named on this complaint at J.A. 273 and then in February of 2010, there was a fight between Mr. McDeath's cellmate who attacked him Michael Smith, this is before they were still made. Michael Smith went into the cell of another prisoner and attacked him so severely that the prisoner required restrictions. The prison report on this attack in February 2010 states that Captain Gallagher was notified of this and met with Michael Smith to discuss this attack on another person. Is your argument that from the facts that were established as being known by these defendants, they should have known it was delivered in difference or is your argument they should have known the facts somehow in the normal course of communications that from which they could then know there was a problem, which is it? They should have known the facts or from the facts or should have known. It's the former is that they must have known that there was a risk here, but this is not just a few isolated things. In other words, you don't point to a fact that anybody specifically knew that that person in the position that person should have known, even if he didn't know directly, of the risk. But that in the normal course of events, that person or those persons should have been informed of the facts. That's what you think. There's a lack of communication in this case. No, it's more than that. It is that one of the facts is this 2007 complaint, not if you have to get a hard from Mr. McSey, which he says I fear for my life. So that is the fact that shows that he must have known, not just that he should have known. We know that Captain Gallowhar met with his cellmate prior to their being cellmates and was aware that this was a violent predator with a history of prison infractions who was about half the age of Mr. McDessie, who was a much higher security level rating. And they continue to leave in the cell together. These two inmates, Mr. McDessie is 49 years old. He's five foot four. He has a history of back problems. They, you know, he is placed into a cell and left in a cell, even after he has made some point. Wasn't there evidence that there was some sort of prison policy that you separated. You wouldn't put two people like that together in a jail in a cell. There's a pretty, a prison policy that you're supposed to consider these kind of factors about the, you know, their age, their, they rate them on a scale of, you know, we know about the scale. One to five about, you know, and they were, you know, 99. Mr. Smith was at the top of the scale. Mr. McDessie was lower on scale and much older and has this history of saying that, you know, I have been, because I have been sexually assaulted or physically assaulted by every stalemate I have had at this prison. He is trying every way he knows how to alert these prison officials to the fact that he is at real risk from his stalemate. It seems that what you are saying is that taking the facts as they are and you look across it in terms of policy. There, the court should have determined as a matter of law that they must have known. That's correct. Well, I don't know that you, I didn't read your brief is going that far. Maybe that's one of your arguments. You sort of post five or four theories you get from farmer. And the one that was the obvious risk theory, it seemed to me that the Supreme Court did in fact in farmer talks quite a bit about these obvious risks. And here and so the fact that there could be an obvious risk basis for recovery isn't just sort of a passing reference. Talk about it length. If you should demonstrate that, then it seemed to be you should so circumstantial evidence of the obvious risk, then the prison official can come back and offer evidence why it was not an obvious risk. And I think the posture you're in now is you're saying that the district court, the magistrate judge didn't recognize the obvious risk factor theory. But if they had you wouldn't be necessarily and even if they found there was an obvious risk, you wouldn't be entitled necessarily to judgment as a matter of law. Under farmer, the prison officials could come back and robust that. Correct. That's correct. They could, but we also. A statement in what you said, well, we also believe that. It's a argument for you right there. You didn't have that. You would have been lost in the woods. It's not just one person's word against another. It's not just Mr. McDesy's word against the word of these of the prison officials who come back and say something different. I mean, there is the, there's this written record with this weight of evidence and the magistrate judge even recognized during the hearing she interrupted the state during their closing argument and said, you know, over and over, he filed requests that reference numerous sexual assault at Walens Ridge. And she said it just seems to me that there's no one at Walens Ridge who either listen to this man or believe this man. Anything he said. But that's not inconsistent with deciding that these defendants didn't have that knowledge. That's just saying something and it looks to me like somebody there certainly knew, but I thought she made a factual finding these defendants did not have knowledge of those prior complaints. Didn't she make that factual finding? She. I just if you know it don't know I believe she she did, but we're saying that that she made that she was not using the proper legal standard looking at the fact that that the facts find her 10 in her that there was delivered in difference from the fact that the risk was obvious, which is spring courts that your position. I don't know if your position is that she seemed to misread too narrowly read this spring court case. She she correct. She required it as reading that there had to be direct actual knowledge and she did not consider a second method of proving knowledge. Why don't you take just so I understand just take 15 or 30 seconds if you could and state for me then exactly what your theory is that the risk was obvious that the prison had to know it. Based on the number of complaints filed the clear language of the complaint stating sexual assault based on the state policy of acquiring employees for respect sexual assaults to their supervisors and based on the testimony of the supervisors that yes they would be made aware of these complaints. Therefore is that on the court know that on the court factual finding about who knew that that that that just undercuts the factual finding that she she just didn't she just made a finding that they didn't know what you think she should have it wouldn't be a factual finding it would just be a legal determination that that the prison was aware I mean what what is that very. That that based on the weight of the evidence they must have known must have been aware that these defendants that that the three captain galahar we tried in fields sergeant gang must have known the other the three other defendants officers. Valamie boy and all who are on duty that morning officer boy was in the control room which was just 30 feet 30. Yeah, but she but she out there she found that didn't they test find nothing was different how they'd walk past his sale and and he didn't say anything to him and he started a lunch or something I thought there was a factual basis for those on the scene she could just say I disagree with your testimony and I accept their test. Well, but those are one of the officer Belamie did walk by the cell around 1056 in the morning about an hour before Mr. McKessler. Well, let me call and boy she let out right away and I mean the district court let out out of it and that they're having been deal with respect to them you have. I know you didn't handle it so it seems to me they're in a different category they didn't deserve the issue they didn't take issue with the magic judges. We believe that the I know you believe they did but you have a better case shall we say with respect to the other three would you agree with that. But we do believe that they did sufficiently object to the findings as to the three officers who were on duty they talked about the testimony of all six defendants they said each of these six did not uphold their sworn duty to protect the safety of Mr. McKessie. In a very serious attack the pictures are in the joint appendix and it just seems incredible that officer boy in sergeant King who are both in the control room as this is going on 30 feet from where it's happening say they did not hear a thing. That's another instance where where they must have known where you have another inmates gang who was allowed by the officers would have heard this. And there have been cases in see I don't think you get I speak only for myself get anywhere just getting the fact. Yes, but we're based on a system where trial courts decide facts and we don't you know unless you have a document that they've ignored you know you really you just don't get anywhere fighting the facts. So you used me you are reduced and I thought that you were going there that you were only relying on miss application of the law. So even though boy who is one of the three that is out because he didn't preserve his arguments anyway was in the next room it doesn't go anywhere with me because the manager judge knew that found it's a fact that's been here. So there you go what what your case has to rest on was that all these reports and this policy made situations because there was in the words of farmer an obvious rip. And that they should have been put to the police officers the prison officials to rebuff that and they they well may be able to and and and the magistrate says that you know McKet in her report McKetty contends that officer boy should have heard or seen the assault. However, the evidence does not show that boy did hear or see the assault as is necessary to make a showing of deliver it's actual knowledge as opposed to being able to infer it as a drink or on that point of law we believe there's. I think we understand your argument here from the government. Thank you. Morning, wait a minute please the court Trevor Cox for Lieutenant fields and the other prison official dependence. The differential standard of review here makes this a pretty easy case. I guess you cannot show that any of the lower courts findings were fairly erroneous. I guess you like any inmate had a heavy burden to carry in trying to demonstrate. Just my questions and sort of put this case in on fence. Right if you look at the backs becomes one. Inescapable conclusion. But do we go back and look to see if court applied the right standard. And if the standard that the court applied was they had to have actual knowledge as opposed to an obvious risk would then put the burden on the other side to show it's not that perhaps this could have been turned out different. But which would lead to the conclusion that if they didn't do the right standard and they need to go back and do it the right way. Unless you can show something that even if you did the right standard it wouldn't be in a different. Yes, Your Honor. I believe that the factual determinations that were made credibility determinations that were made by the magistrate after hearing testimony for two days and receiving 100 exhibits and examining a dozen witnesses and video footage. But the right standard applied even if you believe that but that's only if you accept that that she applied the right standard did she apply the right standard. Yes, she did if your honor under none of none of the well the farmer case holds that defendants cannot be cannot be found. 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or by looking at you. the bill of supreme court as well as be the bill of supreme court of drama law that those convincing attorneys or the guilty. the crime styles in to enforce Jews and Rapids. instilling Wiebe of raped and guilty. instance cabo begging crime to conforms to by the bill of crime done by by of covert, guilty legal legal legal legall charges. if you did something, bone pedlicate or guilty legal legal legal legal law another person. if you don't know lie, in a law that law jail pay the jail platinum by the law statute. responded. Also, it appears the standard protocol separating inmates alleging criminal sexual assault was not followed when he filed his offender request for information in 2010. I just think in light of that it's almost a disimagined judge. Doesn't know that an obvious risk can, that's not necessarily the can state claim. Well, Your Honor, I think that this sort of paviot if you will or this glass sort of paragraph. Were you at the hearing? No, no, Your Honor. No, when you read the transcript of the hearing, it appears the magic of the judge is I think you're somewhat surprised with the conclusion that she comes to here. She seems more sympathetic with you. Your Honor, it's clear that she's, she believes that more should have been done in handling the grievances from Mr. McDesy, but it's not clear. Well, I guess I will say it is clear that it doesn't change the ultimate risk position because these these defendants didn't actually know know anything. These grievances were directed towards mental health professionals and in fact, she says, you know, he had not been able to receive mental health treatment and then she quotes mental health professional clerk for saying, hopefully, hopefully you will be well soon. Instead of providing the treatment that the magistrate judge believes that that he needs, with reference to the the offender of request for information October 28th, stating they have been sexually assaulted by a cellmate, that I believe that's in dispute. There are two versions of this document. One of them, which clearly appears to then doctor after the fact, indicates after saying, I have not been eating and I lost weight because of few reasons. And he adds sexually assaulted by my current cellmate, whereas the original version on 271 doesn't have that language. Well, if you're just a dispute, it seems to be that she's, she's resolving it. I mean, we're letting resolve every other factual dispute. You're on that to not is it sure is that your answer that those comments, the magistrate judge made there, what you call the caveat of the end, is that she's concerned of something happened. She's just made it clear though you can't, can it own these defendants? That that's certainly a reading that you could fairly take that that what are the reading to you that they did that mental health mental health treatment should have been should have been provided to him. And and he wasn't he wasn't getting that the treatment that he that he made I don't think I don't think I don't see where exactly you did that. Well, for instance, he's he allegedly suffered from post-traumatic stress disorder and then the qualified mental health professional park responded. Hopefully you will be well soon. Yes, but that's a quote from what the mental health presider didn't give him any any treatment that hopefully you will be well soon. That's right. That's right. That's right. That's not the magistrate judge saying that there should be mental health treatment. Right. No, but I think that's the point is that that's what the magistrate judge was concerned about that more more should have been more should have been done for him. You know, there's there's no there was no evidence to suggest that these these grievances were seen by these defendants. They didn't have they didn't have knowledge of it. Who said policies what happened with the grievances? I'm sorry, Your Honor. Who said the policies? What are the policies? Prison of files grievances? What happens with? Well, there there are different kinds of forms that you can you can file your honor and I will admit my understanding of this is is somewhat approximate. So I'm I'm asking because if a person of files grievances and the answer and the end of a bunch of grievances in this prison of file and number of grievances is the defense then we didn't know because we didn't look at it or we didn't know because our policy didn't allow us to look at it in a way. The particular. Yes, is that the answer? There is your honor or a policy that's compliant with with the pre-active of 2003 when there are specific allegations of sexual assault that are actionable action is taken. These don't fall into that that category. These are not specific allegations of sexual assault. These are pleased for health for PTSD for sexual assault that he alleges to have occurred three years ago. No no substantiation. So it's not clear what action would be necessary. I will say that there's in addition to. With all of the grievances the individual that he was put in that sale with one that we described the bleeding where they did everything they could once they found out. So he speak but the person they put him in there with was I guess he was a known game member and if I don't know what he said was true or not but that person had a bunch of things against him of all kinds of infractions he had in prison that would lead to a person who's very valid very motivated to do sexual types acts against someone and he's much bigger than he was and yet he's locked in this sale with him. And that's the same person that ultimately is seen when the door finally opens, chases him out and beats him until someone comes up and stops him getting beat on. And all this is in the context of these grievances that have been viled that you say did not rise to the level of doing anything other than seeing here somebody with a problem. That's correct your honor. The what is the rest of that there was a physical altercation that the sellmate did follow him out but that was the first evidence of any any rest. Not really what I'm going at I'm really getting at the business. He's put in their whippedist guy but he has a series of grievances that are there and maybe one grievance is something you can kind of pick aside but the person keeps putting in grievances and I mean in there I mean we're dealing with obvious rest here as opposed to if we take the posture that there's much right from the going dependence that the magistrate may have caught that that obvious rest wasn't enough and we need to have actual but these weren't these weren't grievances against this sellmate. These these were grievances related to alleged sexual assault that occurred years ago and in fact the district toward the adoptive the magistrate judges report made no finding that a sexual assault had occurred. So what we're left with is I'm sorry I thought everybody agreed that there was a sexual assault here. The the investigation that VDoc conducted said there was no sexual assault and I am in that everybody agreed that there was a beating that lasted for hours. I'm sorry a beating that lasts some hours. I think there's a dispute about that as well your honor. All the states it only could be 45 minutes or so. I think what the evidence showed was that as soon as there was a a known risk which was which was known when he left the cell and his cellmate started to punch out. He's already been they've seen he's already been punched and battered and bloodied and had some internal injuries as well by that time so something had to have preceded that. Yes right. Yes but we and the evidence is on just either that they were alone together for I thought about three hours. That's correct but for instance what is the comment that you're arguing that I thought it was I thought it was a state's argument that he was he was beaten and bruised but you thought it was basically there's some short period before he ran because don't you have testimony about these some defendants going by the cell and talking to him. That's right. That's the time period which there's an asserted you know long beating going on but they say that they didn't say anything he looked fine so I think at the state that in the dispute there was an altercation you just don't think and you think the measure judge supported you that it wasn't ongoing it wasn't a two or three hour or deal that that's correct I mean go ahead and counsel mentioned this that officer Bell me walked by at 10 to 6 a.m. looked in saw nothing out of the ordinary no blood nothing and this was on video footage that was viewed by the by the this by the magistrate judge. The concept being this is that he's in prison and there are games there and if you run your mouth you've got a problem and so some of this at least from his perspective is that you know he's been called a snitch and every time that comes up there's retaliation and there are people in that prison system that do not take kindly to you saying to someone an officer who walks by hey this guy and he has been beat me he's raped me that sort of thing when you know he's a gang member and then you also have at least from their perspective and I notice not a light most favorable but I'm just you know in terms of the obvious risks I'm going you also know that if if if he says these things that the officers are likely to do nothing and if you do nothing you are left in that prison with a bunch of gang people who are going to get you back for what you've done so there's this I mean it's not like he's just out in a general public and he's being beat up in a department or something he yields from an officer walks by he is in prison and he is with gang members and we know this I mean that part about it I think it's pretty much obvious from the record there are there are a few things that makes that he could have done if he were really in debt a vast forest assignment death row where he'd be in a cell by cell I'm not going to comment on that I will say I would like it from these circumstances I won't comment on that either the what I will say is that there's a policy that if he thought he was in danger he could report to anyone there and say I am I am fearful for my life as he did that I know that they say he didn't but he says he did I mean I've never seen a record so many complaints he filed him with somebody I mean that needs to file them according to the state with the right person so it was not bad he said a great great number of things and the well he said them in writing in a timely fashion he did and but none of those allegations were were substantiated and and that's very judged decline to to give them credibility as she was in total to do so because of those credibility determinations and the standard of review here this court should affirm thank you thank you very much I would I just would like to point out that the magistrate judge did apparently get credibility to the grievances and complaints based on her comments in her report recommendations and that trial that numerous grievances were filed and that nobody listened to him and that we would request this case be remanded for determination under the proper legal standard that the defendants here must have known because the risk was obvious and it could that could be inferred from the evidence here thank you mr. Feinstein thank you mr. Feinstein I understand that you all are court appointed we very much appreciate your efforts for your clients did fine job we will come down and greet the lawyers and then go directly to our next cas