Legal Case Summary

All right, we're happy to get an argument in our second case. Mr. James, we'd be pleased to hear from you. Thank you, Ron. And please, the court. My name is Michael James. I'm an assistant United States Attorney in the Eastern District of North Carolina. And I represent the defendant in the Central Ocaratory Appeal of the District Court, the Nile of Qualified Immunity to the Appellate's Standsbury Roy and Officer Boyd. So Mr. James, your case pretty much comes down to this isn't deliberate and different if anything, it's negligence. And you don't have a spondy out superior to the two supervisors. That is a pretty much your case. Yes, that's OK. It's better. No, I didn't. It is, I was just wondering why I spent so much time to say that. But yes, that is essentially the case before this court. And in this interlocatory appeal, we're not challenging any disputed facts. I think we're clearing that in our briefs. There were a number of undisputed, very well the facts that this report did not account and you consider. What do you say is you're just sitting, well, what was Mr

. Cornagay and all of this? Well, the plaintiff did not sue Mr. Cornagay. When he wasn't either one, it prepared the computer data sheet. That is correct. He prepared the shoe recreation report and officer boy, he provided that officer boy. So you know, you sue the interesting thing that when I was looking at the lineup of defendants, so you sue the lowest level person and try to make some scapegoat around him. And then you sue the highest level people, the warden and others, Mr. Roy, who are way removed from the actual problem. And then the guy who is at the middle level and is preparing the relevant sheet is nowhere to be found. I mean, what's the story? Well, this report did allow, when the district would deny the motion for some adjustment of the third one, I believe it was, and ordered limited discovery, there was an opportunity to discover who, who the relevant party would be in this case. And it was in the deposition of officer boy that officer Cornagay was the officer charged OIC. And his duties included generating the information, inputting information in that shoe report. Is there any evidence in the record that chose the boy knew that this man was a sex offender? No, no, there is not. There's no evidence of that. Officer Boyd would have to somehow define that visually looking at Mr. Danzer, that he was in fact a sex offender, that's impossible. And the two, and there have been any incidents between the two of them at all. And any, no. And in fact, he's gotten any kind of fight? Absolutely not. In fact, part of the undisputed relevant information that the district court, the armed district court did not consider apparently was Danzer's deposition

. And I believe it had, and also part of his trial testimony. At 265, joint pains 265, he makes clear the point that you're talking about. He had never met Goose then, the man who assaulted him until the day of the assault. He never heard of it. If I may, the point in your brief that Danzer and Gustin had not met before. That is correct. And that comes from the plaintiff from Danzer. Prior to the assault, they never met. In fact, it leaves the joint, and it's 265. He states that Goose was not on the compound when he was there before. So they never met until the day of the assault and in the undisputed fact. So what you're saying is that given the absence of an alert in the computer handout, and given the fact that there was nothing that they had met that they'd never fought, that there hadn't been an altercation. In your view is that there was nothing to put Mr. Boyd on notice. That's correct. And if you're not on notice, you can't be deliberately indifferent. That's correct, John. That's something that you're not on notice. Now, it was he on some sort of notice because of the fact that prison inmates, what could he do, convicted of various crimes, really have a very malevolent attitude towards the case. What's the sex offenders as a client? Well, he would have to somehow know that Mr

. Danzer was the fact of sex offenders. But isn't that the allegation? I mean, the plaintiff is alleging that to be a fact you disputed. We don't have jurisdiction over that. No, I understand that you're on it, but what is undisputed is that one is undisputed. The undisputed fact is that according to Mr. Danzer, they had never met. The two men had never met. That doesn't mean that the officer wouldn't have had knowledge in some other way. There was no evidence of the record. Well, but I mean, we're at the summary judgment stage. An allegation has been made. If there's a dispute about that, and the district court has resolved that factual dispute against you. I understand, you're on it. But in looking at what is undisputed in Mr. Danzer's deposition, Mr. Danzer states he believes that they should have known because that the prison officials should have known because they're a charge of security. That's what he says in his position. That's why he says that's the basis of his state that they knew. Because they should have known they're a charge of security of the prison and the charge of security, security of the prison is under their charge, that they should have known. That is the basis of why he says that officer void knew that he was a sexist

. That's the sole basis for saying that. That they should have known because they're a charge of security. Okay. The court said on at kind of 1991 said it is a material fact in question as to whether the information provided to officer void had the separation orders apparent on the report. Okay. What's the basis for that statement by the district court? By the district court? Well, because in the deposition of officer void, he stated that the two record board would contain the name of individual is number and if the individuals who had to be, that they were in charge of had to be separated from each other. There was no information on the shoe rep report because as I stated to Judge Wilkins, the two men that they were met before, they never had an authentication before. So therefore there's no basis upon which officer void would know that... I guess I just didn't understand what the district court was saying there. But that is the basis for why the district court stated that. Wouldn't the shoe report have indicated or at least the plaintiff was assaulted because of the sex offenders status? The shoe report would not indicate that. The shoe report, the information that that would contain... That would be contained in what they call the CIR, Central and Mid Monitoring Information. And then you have sentry, which is..

. They have two different databases. Okay. Well, wouldn't those two reports have been before void? Before the officer? The duties that were attached officer void, those were the duties of other officers. And even if that CIM information and that threat group information have been on a record board, it would not indicate anything between Mr. Boy and Mr. Dancer. It still would not have provided him with notice that Dancer was a threat to... Excuse me, Mr. Goosen was a threat to Mr. Dancer. All right, maybe that question is better asked of your opponent as to what the factual support is for that statement. All right. And again, I do just want to quickly point out to try to fully answer your question to your satisfaction, Your Honor, that the... That report, that information was not on the shoe report. It's not an information was not on the shoe. I'm sorry

. The threat group information, the gang affiliation, the information about sex offender status, that is not typically on the shoe record report. Well, what in the shoe report would have been most likely to alert Mr. Boy to the fact that Dancer and Gerstin needed to be separated? There would be no information, Your Honor, that could satisfy that because... Were their names mentioned in the shoe report? Their names were mentioned as to those that had to be separated against other individuals. There's no specific... The shoe report did not contain data that said Dancer must be separated by Goosen because they never met. And because they had never met the way the BOP policy is with the separate information, it's very specific. It's with regard to individuals who had past altercations between them, between each other. Now, it lists individuals who had who were informants. That sort of thing. But it does not contain... There's no BOP policy that..

. Go ahead, Sarah. I'm sorry. Is there a shoe report in this record? Well, the shoe report that was actually generated, those were not kept. That has been long gone. So you're saying that's why there's no shoe report in this record? That's correct. That's why there's no shoe report in this joint appendix. For that specific data? Is it undisputed that the shoe report did not contain a separation order for Dancer? That is undisputed. Well, it requires it undisputed if the report is not in the record. Well, even the plaintiff does not dispute the fact that there was no... that there was no specific information between Dancer and Houston. Also, it's undisputed that the shoe report did not contain threat group information and which is called the GAN affiliation and CIM information about sex offenders. That's undisputed. That's not disputed by the plaintiff's counsel either. All right, sir. Thank you. All right. Thank you. Now, with respect to the appellate in this case, Officer Boyle

. Officer Boyle was not unnoticed that he had no fair warning that any of his conducts would have been violated a constitutional right, or any clearly established law, except in the facts as stated by the district court. Now, the district court cited as material facts whether the information provided to Officer Boyle had the separation orders. And that's what we've just talked about. Where the fair to have this information was a policy violation and in doing so, this report noted that Officer Boyle left the area unattended and the fact that Officer Boyle was not disciplined. We believe that the district court aired in the 9.5 minute to Officer Boyle on these basis. One, in each defendant is responsible for their own violations. So stating that there was some stated policy violation that would not amount to a constitutional violation in the part of Officer Boyle. So the Bureau of Prison had an institutional-wide policy that institutionally was somehow an adequate or divided here to so-called best practices for sex offenders as- All right, thank you, Mr. Mayor. You'll have some time for a while. Thank you. There's some so much here on the other side of this. Thank you, Your Honor. May I please support? My name is Elizabeth Simpson. I represent Mr. David Kay Dancer. He is the plaintiff at LE in this case and he is also the inmate who was assaulted by a non-independent. Can you speak up a little? I just want to make sure that I hear you. Can you hear me better now? Yes, I'm trying to get to the microphone

. I'll just start by addressing why Mr. Corneggi was not sued in this case. We have no issue with what Mr. Corneggi did. Mr. Corneggi prepared the shoe report and gave it to Officer Boyle. And as far as we know, although we have not seen the shoe report, the shoe report was correct and he entered all the information he was supposed to enter into the computer, he did not do anything wrong. The stage that we're looking at is actually what Officer Boyle did. I would just say that the main problem is that the defendants seem to want to contest certain facts without saying they're contesting them. Because obviously, if they contest the facts that really that's an argument they have to make to the jury, but here we're at the Court of Appeals. It's really telling that they can't make their argument without changing the story as to what the shoe report said. Where is the evidence in this case of notice? Oh, okay. Notice to Boyle that this was a problem. Essentially, first, we have evidence that Officer Boyle had full access to the CIM and Century databases. The shoe post-orders, which are his direct orders for how he's to conduct his job. You're saying constructive notice is not. Not constructive. Knowing that he had access to it and that the CIM and Century database are full of notations saying that dancers the sex offender, saying that he's been assaulted at least three times because he was a sex offender, saying that Gustin is a member of Lennwester Familia. There's lots of evidence that the BOP tracks Lennwester Familia as an extremely dangerous and predatory gang that had to say. Are you saying that the shoe report contained the separation notice for these two members? Yes

. That because of all the information we have received from Century and CIM. How does that be if they had to met? Sorry. That they had met. I don't think they would not say that they had met previously, but it would contain ample information showing that Gustin had a history of assaulting sex offenders. The dancer was a sex offender and that dancer had previously been assaulted various times because he was a sex offender. But because they're longer exists, we can't really rely on your assertions, can we? We can look at page 1000 and page 106 of the SEAL joint appendix and look at what the database entries look like inside of the Bureau of Prison Database. And you can see what kind of information is contained there on page 1000 at the bottom. You can see an awful lot of hindsight involved in this because you have the people who engaged in recreational activities together are just by virtue of the fact that they're in this medium security facility. And, you know, they're the most, they're volatile individuals and it's so easy to say after a fight breaks out, oh, well, you should have known. When you have all of these different individuals put together in different combinations day after day after day, it strikes me as unfair to charge with deliberative difference. For about five to ten minutes and leave these two individuals completely unsupervised. So that's step two of the dealer in difference test. But if Boyd had done that with just any two inmates with no prior knowledge of who those people were, that would be negligence. But what about our case law that talks about they have to actually know their service? And you can, you can, a jury can find and the key point is a jury can find actual knowledge from the very fact. Because it was obvious. Because all of the information that Mr. Boyd had, whenever he looked in the computer, whenever he pulled out a shoe report, whenever he pulled someone up with the computer. Did you invite a speculation? No, what I'm saying is that everyone on the compound knew that Mr. Dancer was a sex offender. He testified to that. He said that he's been assaulted 15 to 20 times because he's a sex offender. Everyone inmate and officers alike knew that he was a sex offender that made him a hated inmate. And meanwhile Mr. Gustin is someone who all over his shoe report says, Lonewester Familia says he assaulted so and so because he was a sex offender. He assaulted so and so because he was an informant. Extremely dangerous has tattoos on his face and entire body showing that he's a member of this dangerous gang. So you have these two individuals who are not just any two random individuals in medium security, but one who's extremely vulnerable and one who's extremely predatory. And Mr. Boyd, who has his job to monitor this situation and make appropriate assignments, taking into account the information in the CIM Centri database, which is there for prison security. He puts these two in the same recreation cage, takes off their handcuffs, and then he leaves the scene totally unattended for five to 10 minutes. So to me, that speaks of not just negligence or not just a bad luck, but deliberate indifference or possibly even a deliberate setup. It's very possible that he was he set up the situation for it to happen, but as long as Boyd is denying it, you know, that's not something that I can prove right here. It has to be a jury who looks Mr. Boyd in the face and decides whether he is telling the truth or lying. Okay, well I'll continue. I do have one thing further. I would like to point to the case fee Ahito, case from the seventh circuit. This is Mr. Posner's opinion, and I think it's pretty similar because it has a situation where you had a very vulnerable inmate, someone who had been identified by the prison psychologist as being vulnerable, and then you had a predatory inmate who had made threats. And you have an officer who left the predatory inmate in a position where he was not secure, not supervised

. He said that he's been assaulted 15 to 20 times because he's a sex offender. Everyone inmate and officers alike knew that he was a sex offender that made him a hated inmate. And meanwhile Mr. Gustin is someone who all over his shoe report says, Lonewester Familia says he assaulted so and so because he was a sex offender. He assaulted so and so because he was an informant. Extremely dangerous has tattoos on his face and entire body showing that he's a member of this dangerous gang. So you have these two individuals who are not just any two random individuals in medium security, but one who's extremely vulnerable and one who's extremely predatory. And Mr. Boyd, who has his job to monitor this situation and make appropriate assignments, taking into account the information in the CIM Centri database, which is there for prison security. He puts these two in the same recreation cage, takes off their handcuffs, and then he leaves the scene totally unattended for five to 10 minutes. So to me, that speaks of not just negligence or not just a bad luck, but deliberate indifference or possibly even a deliberate setup. It's very possible that he was he set up the situation for it to happen, but as long as Boyd is denying it, you know, that's not something that I can prove right here. It has to be a jury who looks Mr. Boyd in the face and decides whether he is telling the truth or lying. Okay, well I'll continue. I do have one thing further. I would like to point to the case fee Ahito, case from the seventh circuit. This is Mr. Posner's opinion, and I think it's pretty similar because it has a situation where you had a very vulnerable inmate, someone who had been identified by the prison psychologist as being vulnerable, and then you had a predatory inmate who had made threats. And you have an officer who left the predatory inmate in a position where he was not secure, not supervised. And what Mr. Posner said was that it was like leaving a hungry lion in a den and then opening the door. It was a very similar situation here. We have a hungry lion, and officer Boyd knew that that lion was hungry, and he just put dancer in there and then left the scene. While Mr. Dancer was left there, these are the things that happened to him. So when officer Boyd says he left for only a few seconds, that's also not credible. That's something that a jury should hear. To hear him say I only left for a few seconds, and hear that it's incredible because while he was gone, Mr. Gus and took off his jumpsuit, he snuck down Mr. Dancer, he stomped and kicked him about 15 to 20 times. Then he wiped the blood off himself, he passed his bloody shoes through the recreation cage down the line to someone else, he received clean shoes, he put them on, he put on his jumpsuit, and he was acting normally by the time a different officer officer paler happened by and saw a dancer slump from the ground leading. So this is all the things that happened while officer Boyd was away from his post violating his post orders. These are the same post orders that told him he had to look at the CIMCENTRY database before he made his assignments. We know what information was in the CIMCENTRY database, it was the information I told you about. So that's the case. The CIMCENTRY, do you have a case that Judge Keenan asked you about that supporting your view, that constructive knowledge and the absence of direct knowledge is enough to ward off some rejuvenation on qualifying? The line that I quoted, the line about knowledge being inferred by the very fact that it's obvious, that the line from farmer to be branded, that when something is so obvious, the situation is so volatile, a jury can make that jump. We'll make you a case fight for the obvious line. That's fine. You've cited the case

. And what Mr. Posner said was that it was like leaving a hungry lion in a den and then opening the door. It was a very similar situation here. We have a hungry lion, and officer Boyd knew that that lion was hungry, and he just put dancer in there and then left the scene. While Mr. Dancer was left there, these are the things that happened to him. So when officer Boyd says he left for only a few seconds, that's also not credible. That's something that a jury should hear. To hear him say I only left for a few seconds, and hear that it's incredible because while he was gone, Mr. Gus and took off his jumpsuit, he snuck down Mr. Dancer, he stomped and kicked him about 15 to 20 times. Then he wiped the blood off himself, he passed his bloody shoes through the recreation cage down the line to someone else, he received clean shoes, he put them on, he put on his jumpsuit, and he was acting normally by the time a different officer officer paler happened by and saw a dancer slump from the ground leading. So this is all the things that happened while officer Boyd was away from his post violating his post orders. These are the same post orders that told him he had to look at the CIMCENTRY database before he made his assignments. We know what information was in the CIMCENTRY database, it was the information I told you about. So that's the case. The CIMCENTRY, do you have a case that Judge Keenan asked you about that supporting your view, that constructive knowledge and the absence of direct knowledge is enough to ward off some rejuvenation on qualifying? The line that I quoted, the line about knowledge being inferred by the very fact that it's obvious, that the line from farmer to be branded, that when something is so obvious, the situation is so volatile, a jury can make that jump. We'll make you a case fight for the obvious line. That's fine. You've cited the case. Yeah, I did. I think that really what we've asked on it. Is that when you think the district court was getting at in this case? I do think so. I don't think that the district court decision completely captures the full argument, but I think what he was getting at is that this was a case where it was obvious. The district court judge actually presided over the trial. And so he saw officer Boyd, he saw the criminal trial. I'm sorry, against Mr. Gaston. And Mr. Gaston was convicted of assault, inflectance, serious, bodily injury. The district of knowledge, I've told you, with the deliberate and different standard, I mean, maybe you could make a constructive knowledge, argument with respect to negligence, but deliberate and different requires a conscious disregard of a known risk. There's a different suite known and maybe should have known or whatever, but the court phrases deliberate in difference in terms of a known risk. Yes, Your Honor. And I think what I'm trying to get at is not should have maybe have known, but must have known. It was so obvious that any officer would have known. Any officer did know that Mr. Boyd did know that the answer was a vulnerable sex offender who would have assaulted many times and he did know the fact that they never met despite the fact that I would. And so, as Mr. Judge Keenan says, it's totally speculative that this information was included in the shoe report. I mean, it seems to me we're trying to make a scapegoat of a very low level official and trying to say, well, all these different inmates, you should know notwithstanding the absence of information in the shoe report, notwithstanding the absence of any history of prior altercation

. Yeah, I did. I think that really what we've asked on it. Is that when you think the district court was getting at in this case? I do think so. I don't think that the district court decision completely captures the full argument, but I think what he was getting at is that this was a case where it was obvious. The district court judge actually presided over the trial. And so he saw officer Boyd, he saw the criminal trial. I'm sorry, against Mr. Gaston. And Mr. Gaston was convicted of assault, inflectance, serious, bodily injury. The district of knowledge, I've told you, with the deliberate and different standard, I mean, maybe you could make a constructive knowledge, argument with respect to negligence, but deliberate and different requires a conscious disregard of a known risk. There's a different suite known and maybe should have known or whatever, but the court phrases deliberate in difference in terms of a known risk. Yes, Your Honor. And I think what I'm trying to get at is not should have maybe have known, but must have known. It was so obvious that any officer would have known. Any officer did know that Mr. Boyd did know that the answer was a vulnerable sex offender who would have assaulted many times and he did know the fact that they never met despite the fact that I would. And so, as Mr. Judge Keenan says, it's totally speculative that this information was included in the shoe report. I mean, it seems to me we're trying to make a scapegoat of a very low level official and trying to say, well, all these different inmates, you should know notwithstanding the absence of information in the shoe report, notwithstanding the absence of any history of prior altercation. You should be able to figure out exactly who's going to get along in the recreation area who's not. And that seems to me to charge a very low level official with an awfully high level of knowledge and we would have to do that in the teeth of a deliberate and different standard. I mean, these standards of review have to mean something. It just can't let deliberate in different slide into negligence. And as always, the effort there to conflate the two. And I think a Supreme Court indicated that the miles apart, I mean, deliberate in differences is above gross negligence. It's frightening. It comes, it comes very, you know, you have these four standards, negligence, gross negligence, delivering difference and just knowing an intentional inflection of action. And there's a good deal of air and light between each of them. There is. And I think if you look at some of the cases that this that this court is decided on deliberate in difference, you'll see that air and light and you'll see why this one comes out on the side of deliberate in difference. What is Parker V. Maryland? That's a clear negligence case, a very tragic situation where one inmate killed another on a prison bus. But there what you have is two inmates who appeared to get along, one had just testified on behalf of the other in a recentencing and the guards while somewhat, you know, ill-attentive, one was playing on a cell phone, one was looking at a televised. And they were on, they were at their post, they were doing their duty and they just didn't notice what happened. That's negligence. But this case is different. This is a case where there is actual knowledge. Dancer testified that everyone knew that he was a sex offender. And so the fact that the officer of work and just say, I didn't know

. You should be able to figure out exactly who's going to get along in the recreation area who's not. And that seems to me to charge a very low level official with an awfully high level of knowledge and we would have to do that in the teeth of a deliberate and different standard. I mean, these standards of review have to mean something. It just can't let deliberate in different slide into negligence. And as always, the effort there to conflate the two. And I think a Supreme Court indicated that the miles apart, I mean, deliberate in differences is above gross negligence. It's frightening. It comes, it comes very, you know, you have these four standards, negligence, gross negligence, delivering difference and just knowing an intentional inflection of action. And there's a good deal of air and light between each of them. There is. And I think if you look at some of the cases that this that this court is decided on deliberate in difference, you'll see that air and light and you'll see why this one comes out on the side of deliberate in difference. What is Parker V. Maryland? That's a clear negligence case, a very tragic situation where one inmate killed another on a prison bus. But there what you have is two inmates who appeared to get along, one had just testified on behalf of the other in a recentencing and the guards while somewhat, you know, ill-attentive, one was playing on a cell phone, one was looking at a televised. And they were on, they were at their post, they were doing their duty and they just didn't notice what happened. That's negligence. But this case is different. This is a case where there is actual knowledge. Dancer testified that everyone knew that he was a sex offender. And so the fact that the officer of work and just say, I didn't know. I mean, officer void line in his position. That's a trial. He said that he knew that sex offenders were a hating group in prison. And then at the position, he said he didn't think sex offenders were hating at all. That doesn't make sense. Everyone knows that sex offenders are hated in prison and that they're vulnerable. But why would he change his story like that? That's a sort of a credibility thing that a jury has to hear, not the court of appeals. I think the officer void did know because all that information was right in front of him, right in the database. And he had a duty to look in the database. So he knew who these two people were. And he left them unattended for five to ten minutes. That's the second piece. The second piece is not just he put them together. Whoops. It's that he then walked away and left them there. Thank you, Your Honor. Thank you. Thank you. I'll be very brief. Judge Keenan, when council began her argument, you asked whether this was constructive notice could be implied because of the various databases

. I mean, officer void line in his position. That's a trial. He said that he knew that sex offenders were a hating group in prison. And then at the position, he said he didn't think sex offenders were hating at all. That doesn't make sense. Everyone knows that sex offenders are hated in prison and that they're vulnerable. But why would he change his story like that? That's a sort of a credibility thing that a jury has to hear, not the court of appeals. I think the officer void did know because all that information was right in front of him, right in the database. And he had a duty to look in the database. So he knew who these two people were. And he left them unattended for five to ten minutes. That's the second piece. The second piece is not just he put them together. Whoops. It's that he then walked away and left them there. Thank you, Your Honor. Thank you. Thank you. I'll be very brief. Judge Keenan, when council began her argument, you asked whether this was constructive notice could be implied because of the various databases. Council said that she was not talking about constructive notice, but it's clear that in fact she was. And Judge Diaz, when you asked council, do you have a case that supports that? And council stated that former V Brennan supported that proposition. We would argue that former V Brennan does not believe it. If we were in former V Brennan at approximately page 840 to 845 deals with that portion of that could answer your question. Let me ask maybe I've misunderstood the factual record. We don't have the actual reports here, but apparently we have prototypical reports that. If in fact the information in the databases showed that. Danzer had a history of abusing. Well, the other way around he was a sexual offender and is in made who assaulted him had a history of assaulting sexual offenders. With that being of even if the officer denied actually looking at the databases that be enough to get past some of the judge. You are one. So the court is asking whether or not if that information was that information is in the databases officer have a duty to look before deciding how he's going to house these in. Officer the officer boy who was not in charge of inputting the data in the shoe report. He relied upon another officer in putting that information and then he used the shoe report to make and the geographical areas to make the actual to make the actual cage assignments. He would not have that information even if the information was as the court stated. He officer board himself will not have that information. Now I would state that. It wouldn't have it's in the somewhere in the databases. It may be somewhere in a prison database, but the particular officer who was charged with getting these officer getting the inmates out for one hour and I remind the court for one hour recreation. When you have hundreds of inmates, a one hour and yes, a cycle inmates throughout for one hour recreation in the shoe area that his duty was his duties were not to in fact check multiple databases

. Council said that she was not talking about constructive notice, but it's clear that in fact she was. And Judge Diaz, when you asked council, do you have a case that supports that? And council stated that former V Brennan supported that proposition. We would argue that former V Brennan does not believe it. If we were in former V Brennan at approximately page 840 to 845 deals with that portion of that could answer your question. Let me ask maybe I've misunderstood the factual record. We don't have the actual reports here, but apparently we have prototypical reports that. If in fact the information in the databases showed that. Danzer had a history of abusing. Well, the other way around he was a sexual offender and is in made who assaulted him had a history of assaulting sexual offenders. With that being of even if the officer denied actually looking at the databases that be enough to get past some of the judge. You are one. So the court is asking whether or not if that information was that information is in the databases officer have a duty to look before deciding how he's going to house these in. Officer the officer boy who was not in charge of inputting the data in the shoe report. He relied upon another officer in putting that information and then he used the shoe report to make and the geographical areas to make the actual to make the actual cage assignments. He would not have that information even if the information was as the court stated. He officer board himself will not have that information. Now I would state that. It wouldn't have it's in the somewhere in the databases. It may be somewhere in a prison database, but the particular officer who was charged with getting these officer getting the inmates out for one hour and I remind the court for one hour recreation. When you have hundreds of inmates, a one hour and yes, a cycle inmates throughout for one hour recreation in the shoe area that his duty was his duties were not to in fact check multiple databases. That was the responsibility of another officer officer, a corny gay who was responsibility was to input information that you report. How many different inmates go through the recreational process. In a particular day. I believe and I believe in the particular case, but I think it was like 99 there were 99 inmates and what officer boy did when he started. 99 inmates for the whole day. Yes, well for his for the whole day and he was doing the recreation assignments for that day. 99 different inmates. So the whole point is to make the process run with some degree of efficiency. That's correct. And the way you do that is by having a match and say these two should not be in the recreational area together. That is correct. And you don't want to put that duty officer in a situation of trying to figure out all sorts of things and trying to draw inferences from this and inferences from that. He's got a lot of other things to do. He's got a large number of inmates to try to put in the combinations that are not going to result in a conflagration. And his job is not to prepare all these things or to speculate or to have, oh well I think this type of offenders more likely to wreak havoc on this other type of offender. But this other type of offenders less likely because it gets into some sort of sociological inquiry. And that's just way beyond what you could expect somebody with these sorts of duties to perform. That's correct. It has to be made. He's making decisions with a lot of people and it has to be clear

. That was the responsibility of another officer officer, a corny gay who was responsibility was to input information that you report. How many different inmates go through the recreational process. In a particular day. I believe and I believe in the particular case, but I think it was like 99 there were 99 inmates and what officer boy did when he started. 99 inmates for the whole day. Yes, well for his for the whole day and he was doing the recreation assignments for that day. 99 different inmates. So the whole point is to make the process run with some degree of efficiency. That's correct. And the way you do that is by having a match and say these two should not be in the recreational area together. That is correct. And you don't want to put that duty officer in a situation of trying to figure out all sorts of things and trying to draw inferences from this and inferences from that. He's got a lot of other things to do. He's got a large number of inmates to try to put in the combinations that are not going to result in a conflagration. And his job is not to prepare all these things or to speculate or to have, oh well I think this type of offenders more likely to wreak havoc on this other type of offender. But this other type of offenders less likely because it gets into some sort of sociological inquiry. And that's just way beyond what you could expect somebody with these sorts of duties to perform. That's correct. It has to be made. He's making decisions with a lot of people and it has to be clear. That's these two people shouldn't be there together. And the idea that we should be consulting multiple sources and databases, that's not the way an institution should be run or would be run. That's correct. And if I may just go to a few more points addressed by council, you're on one point that was addressed by council was. I was whether getting into what the district court was thinking when the court formulated its order in this case. Now, and this kind of gets into the situation in Winfield V. Bass, in which this court sitting on bomb. Court through the various records in the case and the issue after Johnson and Jones was decided was whether or not how this appellate court was going to look at the qualified immediately into the tutorial appeals. And part of the argument was discerning what the district court likely assumed. And, but don't you think really the thread running through this entire order of the district court is it's just appalled by the gratuitous violence. Yes, I heard in this case and then. It was very frustrated by the fact that everybody's seeking cover. You know, that wasn't my job. Somebody else's job and who this man was. He could have been killed. I mean, isn't that really what's running through this entire order? That in fact, maybe so you're on it. How for assigning liability on a deliberate and different standards and getting to whether each defendant knew because each defendant is liable for their own actions. The officers responded quickly once the assault began. And in fact, part of the undisputed facts that were not addressed by the court in its order with regard to defendants, the supervisory defendants. One was Lieutenant Roy

. That's these two people shouldn't be there together. And the idea that we should be consulting multiple sources and databases, that's not the way an institution should be run or would be run. That's correct. And if I may just go to a few more points addressed by council, you're on one point that was addressed by council was. I was whether getting into what the district court was thinking when the court formulated its order in this case. Now, and this kind of gets into the situation in Winfield V. Bass, in which this court sitting on bomb. Court through the various records in the case and the issue after Johnson and Jones was decided was whether or not how this appellate court was going to look at the qualified immediately into the tutorial appeals. And part of the argument was discerning what the district court likely assumed. And, but don't you think really the thread running through this entire order of the district court is it's just appalled by the gratuitous violence. Yes, I heard in this case and then. It was very frustrated by the fact that everybody's seeking cover. You know, that wasn't my job. Somebody else's job and who this man was. He could have been killed. I mean, isn't that really what's running through this entire order? That in fact, maybe so you're on it. How for assigning liability on a deliberate and different standards and getting to whether each defendant knew because each defendant is liable for their own actions. The officers responded quickly once the assault began. And in fact, part of the undisputed facts that were not addressed by the court in its order with regard to defendants, the supervisory defendants. One was Lieutenant Roy. He responded quickly as did officer boy. They got the up. I see my time is. Thank you. They responded quickly. They removed the other prisoners. They got medical attention for Mr. Danzer Lieutenant Roy, defendant Roy, interviewed a number, interview dancer and interview a number of other prisoners. So they responded reasonably to his assault. Thank you, mother. We'd like to come down and greet council and we'll take the brief recess.

All right, we're happy to get an argument in our second case. Mr. James, we'd be pleased to hear from you. Thank you, Ron. And please, the court. My name is Michael James. I'm an assistant United States Attorney in the Eastern District of North Carolina. And I represent the defendant in the Central Ocaratory Appeal of the District Court, the Nile of Qualified Immunity to the Appellate's Standsbury Roy and Officer Boyd. So Mr. James, your case pretty much comes down to this isn't deliberate and different if anything, it's negligence. And you don't have a spondy out superior to the two supervisors. That is a pretty much your case. Yes, that's OK. It's better. No, I didn't. It is, I was just wondering why I spent so much time to say that. But yes, that is essentially the case before this court. And in this interlocatory appeal, we're not challenging any disputed facts. I think we're clearing that in our briefs. There were a number of undisputed, very well the facts that this report did not account and you consider. What do you say is you're just sitting, well, what was Mr. Cornagay and all of this? Well, the plaintiff did not sue Mr. Cornagay. When he wasn't either one, it prepared the computer data sheet. That is correct. He prepared the shoe recreation report and officer boy, he provided that officer boy. So you know, you sue the interesting thing that when I was looking at the lineup of defendants, so you sue the lowest level person and try to make some scapegoat around him. And then you sue the highest level people, the warden and others, Mr. Roy, who are way removed from the actual problem. And then the guy who is at the middle level and is preparing the relevant sheet is nowhere to be found. I mean, what's the story? Well, this report did allow, when the district would deny the motion for some adjustment of the third one, I believe it was, and ordered limited discovery, there was an opportunity to discover who, who the relevant party would be in this case. And it was in the deposition of officer boy that officer Cornagay was the officer charged OIC. And his duties included generating the information, inputting information in that shoe report. Is there any evidence in the record that chose the boy knew that this man was a sex offender? No, no, there is not. There's no evidence of that. Officer Boyd would have to somehow define that visually looking at Mr. Danzer, that he was in fact a sex offender, that's impossible. And the two, and there have been any incidents between the two of them at all. And any, no. And in fact, he's gotten any kind of fight? Absolutely not. In fact, part of the undisputed relevant information that the district court, the armed district court did not consider apparently was Danzer's deposition. And I believe it had, and also part of his trial testimony. At 265, joint pains 265, he makes clear the point that you're talking about. He had never met Goose then, the man who assaulted him until the day of the assault. He never heard of it. If I may, the point in your brief that Danzer and Gustin had not met before. That is correct. And that comes from the plaintiff from Danzer. Prior to the assault, they never met. In fact, it leaves the joint, and it's 265. He states that Goose was not on the compound when he was there before. So they never met until the day of the assault and in the undisputed fact. So what you're saying is that given the absence of an alert in the computer handout, and given the fact that there was nothing that they had met that they'd never fought, that there hadn't been an altercation. In your view is that there was nothing to put Mr. Boyd on notice. That's correct. And if you're not on notice, you can't be deliberately indifferent. That's correct, John. That's something that you're not on notice. Now, it was he on some sort of notice because of the fact that prison inmates, what could he do, convicted of various crimes, really have a very malevolent attitude towards the case. What's the sex offenders as a client? Well, he would have to somehow know that Mr. Danzer was the fact of sex offenders. But isn't that the allegation? I mean, the plaintiff is alleging that to be a fact you disputed. We don't have jurisdiction over that. No, I understand that you're on it, but what is undisputed is that one is undisputed. The undisputed fact is that according to Mr. Danzer, they had never met. The two men had never met. That doesn't mean that the officer wouldn't have had knowledge in some other way. There was no evidence of the record. Well, but I mean, we're at the summary judgment stage. An allegation has been made. If there's a dispute about that, and the district court has resolved that factual dispute against you. I understand, you're on it. But in looking at what is undisputed in Mr. Danzer's deposition, Mr. Danzer states he believes that they should have known because that the prison officials should have known because they're a charge of security. That's what he says in his position. That's why he says that's the basis of his state that they knew. Because they should have known they're a charge of security of the prison and the charge of security, security of the prison is under their charge, that they should have known. That is the basis of why he says that officer void knew that he was a sexist. That's the sole basis for saying that. That they should have known because they're a charge of security. Okay. The court said on at kind of 1991 said it is a material fact in question as to whether the information provided to officer void had the separation orders apparent on the report. Okay. What's the basis for that statement by the district court? By the district court? Well, because in the deposition of officer void, he stated that the two record board would contain the name of individual is number and if the individuals who had to be, that they were in charge of had to be separated from each other. There was no information on the shoe rep report because as I stated to Judge Wilkins, the two men that they were met before, they never had an authentication before. So therefore there's no basis upon which officer void would know that... I guess I just didn't understand what the district court was saying there. But that is the basis for why the district court stated that. Wouldn't the shoe report have indicated or at least the plaintiff was assaulted because of the sex offenders status? The shoe report would not indicate that. The shoe report, the information that that would contain... That would be contained in what they call the CIR, Central and Mid Monitoring Information. And then you have sentry, which is... They have two different databases. Okay. Well, wouldn't those two reports have been before void? Before the officer? The duties that were attached officer void, those were the duties of other officers. And even if that CIM information and that threat group information have been on a record board, it would not indicate anything between Mr. Boy and Mr. Dancer. It still would not have provided him with notice that Dancer was a threat to... Excuse me, Mr. Goosen was a threat to Mr. Dancer. All right, maybe that question is better asked of your opponent as to what the factual support is for that statement. All right. And again, I do just want to quickly point out to try to fully answer your question to your satisfaction, Your Honor, that the... That report, that information was not on the shoe report. It's not an information was not on the shoe. I'm sorry. The threat group information, the gang affiliation, the information about sex offender status, that is not typically on the shoe record report. Well, what in the shoe report would have been most likely to alert Mr. Boy to the fact that Dancer and Gerstin needed to be separated? There would be no information, Your Honor, that could satisfy that because... Were their names mentioned in the shoe report? Their names were mentioned as to those that had to be separated against other individuals. There's no specific... The shoe report did not contain data that said Dancer must be separated by Goosen because they never met. And because they had never met the way the BOP policy is with the separate information, it's very specific. It's with regard to individuals who had past altercations between them, between each other. Now, it lists individuals who had who were informants. That sort of thing. But it does not contain... There's no BOP policy that... Go ahead, Sarah. I'm sorry. Is there a shoe report in this record? Well, the shoe report that was actually generated, those were not kept. That has been long gone. So you're saying that's why there's no shoe report in this record? That's correct. That's why there's no shoe report in this joint appendix. For that specific data? Is it undisputed that the shoe report did not contain a separation order for Dancer? That is undisputed. Well, it requires it undisputed if the report is not in the record. Well, even the plaintiff does not dispute the fact that there was no... that there was no specific information between Dancer and Houston. Also, it's undisputed that the shoe report did not contain threat group information and which is called the GAN affiliation and CIM information about sex offenders. That's undisputed. That's not disputed by the plaintiff's counsel either. All right, sir. Thank you. All right. Thank you. Now, with respect to the appellate in this case, Officer Boyle. Officer Boyle was not unnoticed that he had no fair warning that any of his conducts would have been violated a constitutional right, or any clearly established law, except in the facts as stated by the district court. Now, the district court cited as material facts whether the information provided to Officer Boyle had the separation orders. And that's what we've just talked about. Where the fair to have this information was a policy violation and in doing so, this report noted that Officer Boyle left the area unattended and the fact that Officer Boyle was not disciplined. We believe that the district court aired in the 9.5 minute to Officer Boyle on these basis. One, in each defendant is responsible for their own violations. So stating that there was some stated policy violation that would not amount to a constitutional violation in the part of Officer Boyle. So the Bureau of Prison had an institutional-wide policy that institutionally was somehow an adequate or divided here to so-called best practices for sex offenders as- All right, thank you, Mr. Mayor. You'll have some time for a while. Thank you. There's some so much here on the other side of this. Thank you, Your Honor. May I please support? My name is Elizabeth Simpson. I represent Mr. David Kay Dancer. He is the plaintiff at LE in this case and he is also the inmate who was assaulted by a non-independent. Can you speak up a little? I just want to make sure that I hear you. Can you hear me better now? Yes, I'm trying to get to the microphone. I'll just start by addressing why Mr. Corneggi was not sued in this case. We have no issue with what Mr. Corneggi did. Mr. Corneggi prepared the shoe report and gave it to Officer Boyle. And as far as we know, although we have not seen the shoe report, the shoe report was correct and he entered all the information he was supposed to enter into the computer, he did not do anything wrong. The stage that we're looking at is actually what Officer Boyle did. I would just say that the main problem is that the defendants seem to want to contest certain facts without saying they're contesting them. Because obviously, if they contest the facts that really that's an argument they have to make to the jury, but here we're at the Court of Appeals. It's really telling that they can't make their argument without changing the story as to what the shoe report said. Where is the evidence in this case of notice? Oh, okay. Notice to Boyle that this was a problem. Essentially, first, we have evidence that Officer Boyle had full access to the CIM and Century databases. The shoe post-orders, which are his direct orders for how he's to conduct his job. You're saying constructive notice is not. Not constructive. Knowing that he had access to it and that the CIM and Century database are full of notations saying that dancers the sex offender, saying that he's been assaulted at least three times because he was a sex offender, saying that Gustin is a member of Lennwester Familia. There's lots of evidence that the BOP tracks Lennwester Familia as an extremely dangerous and predatory gang that had to say. Are you saying that the shoe report contained the separation notice for these two members? Yes. That because of all the information we have received from Century and CIM. How does that be if they had to met? Sorry. That they had met. I don't think they would not say that they had met previously, but it would contain ample information showing that Gustin had a history of assaulting sex offenders. The dancer was a sex offender and that dancer had previously been assaulted various times because he was a sex offender. But because they're longer exists, we can't really rely on your assertions, can we? We can look at page 1000 and page 106 of the SEAL joint appendix and look at what the database entries look like inside of the Bureau of Prison Database. And you can see what kind of information is contained there on page 1000 at the bottom. You can see an awful lot of hindsight involved in this because you have the people who engaged in recreational activities together are just by virtue of the fact that they're in this medium security facility. And, you know, they're the most, they're volatile individuals and it's so easy to say after a fight breaks out, oh, well, you should have known. When you have all of these different individuals put together in different combinations day after day after day, it strikes me as unfair to charge with deliberative difference. For about five to ten minutes and leave these two individuals completely unsupervised. So that's step two of the dealer in difference test. But if Boyd had done that with just any two inmates with no prior knowledge of who those people were, that would be negligence. But what about our case law that talks about they have to actually know their service? And you can, you can, a jury can find and the key point is a jury can find actual knowledge from the very fact. Because it was obvious. Because all of the information that Mr. Boyd had, whenever he looked in the computer, whenever he pulled out a shoe report, whenever he pulled someone up with the computer. Did you invite a speculation? No, what I'm saying is that everyone on the compound knew that Mr. Dancer was a sex offender. He testified to that. He said that he's been assaulted 15 to 20 times because he's a sex offender. Everyone inmate and officers alike knew that he was a sex offender that made him a hated inmate. And meanwhile Mr. Gustin is someone who all over his shoe report says, Lonewester Familia says he assaulted so and so because he was a sex offender. He assaulted so and so because he was an informant. Extremely dangerous has tattoos on his face and entire body showing that he's a member of this dangerous gang. So you have these two individuals who are not just any two random individuals in medium security, but one who's extremely vulnerable and one who's extremely predatory. And Mr. Boyd, who has his job to monitor this situation and make appropriate assignments, taking into account the information in the CIM Centri database, which is there for prison security. He puts these two in the same recreation cage, takes off their handcuffs, and then he leaves the scene totally unattended for five to 10 minutes. So to me, that speaks of not just negligence or not just a bad luck, but deliberate indifference or possibly even a deliberate setup. It's very possible that he was he set up the situation for it to happen, but as long as Boyd is denying it, you know, that's not something that I can prove right here. It has to be a jury who looks Mr. Boyd in the face and decides whether he is telling the truth or lying. Okay, well I'll continue. I do have one thing further. I would like to point to the case fee Ahito, case from the seventh circuit. This is Mr. Posner's opinion, and I think it's pretty similar because it has a situation where you had a very vulnerable inmate, someone who had been identified by the prison psychologist as being vulnerable, and then you had a predatory inmate who had made threats. And you have an officer who left the predatory inmate in a position where he was not secure, not supervised. And what Mr. Posner said was that it was like leaving a hungry lion in a den and then opening the door. It was a very similar situation here. We have a hungry lion, and officer Boyd knew that that lion was hungry, and he just put dancer in there and then left the scene. While Mr. Dancer was left there, these are the things that happened to him. So when officer Boyd says he left for only a few seconds, that's also not credible. That's something that a jury should hear. To hear him say I only left for a few seconds, and hear that it's incredible because while he was gone, Mr. Gus and took off his jumpsuit, he snuck down Mr. Dancer, he stomped and kicked him about 15 to 20 times. Then he wiped the blood off himself, he passed his bloody shoes through the recreation cage down the line to someone else, he received clean shoes, he put them on, he put on his jumpsuit, and he was acting normally by the time a different officer officer paler happened by and saw a dancer slump from the ground leading. So this is all the things that happened while officer Boyd was away from his post violating his post orders. These are the same post orders that told him he had to look at the CIMCENTRY database before he made his assignments. We know what information was in the CIMCENTRY database, it was the information I told you about. So that's the case. The CIMCENTRY, do you have a case that Judge Keenan asked you about that supporting your view, that constructive knowledge and the absence of direct knowledge is enough to ward off some rejuvenation on qualifying? The line that I quoted, the line about knowledge being inferred by the very fact that it's obvious, that the line from farmer to be branded, that when something is so obvious, the situation is so volatile, a jury can make that jump. We'll make you a case fight for the obvious line. That's fine. You've cited the case. Yeah, I did. I think that really what we've asked on it. Is that when you think the district court was getting at in this case? I do think so. I don't think that the district court decision completely captures the full argument, but I think what he was getting at is that this was a case where it was obvious. The district court judge actually presided over the trial. And so he saw officer Boyd, he saw the criminal trial. I'm sorry, against Mr. Gaston. And Mr. Gaston was convicted of assault, inflectance, serious, bodily injury. The district of knowledge, I've told you, with the deliberate and different standard, I mean, maybe you could make a constructive knowledge, argument with respect to negligence, but deliberate and different requires a conscious disregard of a known risk. There's a different suite known and maybe should have known or whatever, but the court phrases deliberate in difference in terms of a known risk. Yes, Your Honor. And I think what I'm trying to get at is not should have maybe have known, but must have known. It was so obvious that any officer would have known. Any officer did know that Mr. Boyd did know that the answer was a vulnerable sex offender who would have assaulted many times and he did know the fact that they never met despite the fact that I would. And so, as Mr. Judge Keenan says, it's totally speculative that this information was included in the shoe report. I mean, it seems to me we're trying to make a scapegoat of a very low level official and trying to say, well, all these different inmates, you should know notwithstanding the absence of information in the shoe report, notwithstanding the absence of any history of prior altercation. You should be able to figure out exactly who's going to get along in the recreation area who's not. And that seems to me to charge a very low level official with an awfully high level of knowledge and we would have to do that in the teeth of a deliberate and different standard. I mean, these standards of review have to mean something. It just can't let deliberate in different slide into negligence. And as always, the effort there to conflate the two. And I think a Supreme Court indicated that the miles apart, I mean, deliberate in differences is above gross negligence. It's frightening. It comes, it comes very, you know, you have these four standards, negligence, gross negligence, delivering difference and just knowing an intentional inflection of action. And there's a good deal of air and light between each of them. There is. And I think if you look at some of the cases that this that this court is decided on deliberate in difference, you'll see that air and light and you'll see why this one comes out on the side of deliberate in difference. What is Parker V. Maryland? That's a clear negligence case, a very tragic situation where one inmate killed another on a prison bus. But there what you have is two inmates who appeared to get along, one had just testified on behalf of the other in a recentencing and the guards while somewhat, you know, ill-attentive, one was playing on a cell phone, one was looking at a televised. And they were on, they were at their post, they were doing their duty and they just didn't notice what happened. That's negligence. But this case is different. This is a case where there is actual knowledge. Dancer testified that everyone knew that he was a sex offender. And so the fact that the officer of work and just say, I didn't know. I mean, officer void line in his position. That's a trial. He said that he knew that sex offenders were a hating group in prison. And then at the position, he said he didn't think sex offenders were hating at all. That doesn't make sense. Everyone knows that sex offenders are hated in prison and that they're vulnerable. But why would he change his story like that? That's a sort of a credibility thing that a jury has to hear, not the court of appeals. I think the officer void did know because all that information was right in front of him, right in the database. And he had a duty to look in the database. So he knew who these two people were. And he left them unattended for five to ten minutes. That's the second piece. The second piece is not just he put them together. Whoops. It's that he then walked away and left them there. Thank you, Your Honor. Thank you. Thank you. I'll be very brief. Judge Keenan, when council began her argument, you asked whether this was constructive notice could be implied because of the various databases. Council said that she was not talking about constructive notice, but it's clear that in fact she was. And Judge Diaz, when you asked council, do you have a case that supports that? And council stated that former V Brennan supported that proposition. We would argue that former V Brennan does not believe it. If we were in former V Brennan at approximately page 840 to 845 deals with that portion of that could answer your question. Let me ask maybe I've misunderstood the factual record. We don't have the actual reports here, but apparently we have prototypical reports that. If in fact the information in the databases showed that. Danzer had a history of abusing. Well, the other way around he was a sexual offender and is in made who assaulted him had a history of assaulting sexual offenders. With that being of even if the officer denied actually looking at the databases that be enough to get past some of the judge. You are one. So the court is asking whether or not if that information was that information is in the databases officer have a duty to look before deciding how he's going to house these in. Officer the officer boy who was not in charge of inputting the data in the shoe report. He relied upon another officer in putting that information and then he used the shoe report to make and the geographical areas to make the actual to make the actual cage assignments. He would not have that information even if the information was as the court stated. He officer board himself will not have that information. Now I would state that. It wouldn't have it's in the somewhere in the databases. It may be somewhere in a prison database, but the particular officer who was charged with getting these officer getting the inmates out for one hour and I remind the court for one hour recreation. When you have hundreds of inmates, a one hour and yes, a cycle inmates throughout for one hour recreation in the shoe area that his duty was his duties were not to in fact check multiple databases. That was the responsibility of another officer officer, a corny gay who was responsibility was to input information that you report. How many different inmates go through the recreational process. In a particular day. I believe and I believe in the particular case, but I think it was like 99 there were 99 inmates and what officer boy did when he started. 99 inmates for the whole day. Yes, well for his for the whole day and he was doing the recreation assignments for that day. 99 different inmates. So the whole point is to make the process run with some degree of efficiency. That's correct. And the way you do that is by having a match and say these two should not be in the recreational area together. That is correct. And you don't want to put that duty officer in a situation of trying to figure out all sorts of things and trying to draw inferences from this and inferences from that. He's got a lot of other things to do. He's got a large number of inmates to try to put in the combinations that are not going to result in a conflagration. And his job is not to prepare all these things or to speculate or to have, oh well I think this type of offenders more likely to wreak havoc on this other type of offender. But this other type of offenders less likely because it gets into some sort of sociological inquiry. And that's just way beyond what you could expect somebody with these sorts of duties to perform. That's correct. It has to be made. He's making decisions with a lot of people and it has to be clear. That's these two people shouldn't be there together. And the idea that we should be consulting multiple sources and databases, that's not the way an institution should be run or would be run. That's correct. And if I may just go to a few more points addressed by council, you're on one point that was addressed by council was. I was whether getting into what the district court was thinking when the court formulated its order in this case. Now, and this kind of gets into the situation in Winfield V. Bass, in which this court sitting on bomb. Court through the various records in the case and the issue after Johnson and Jones was decided was whether or not how this appellate court was going to look at the qualified immediately into the tutorial appeals. And part of the argument was discerning what the district court likely assumed. And, but don't you think really the thread running through this entire order of the district court is it's just appalled by the gratuitous violence. Yes, I heard in this case and then. It was very frustrated by the fact that everybody's seeking cover. You know, that wasn't my job. Somebody else's job and who this man was. He could have been killed. I mean, isn't that really what's running through this entire order? That in fact, maybe so you're on it. How for assigning liability on a deliberate and different standards and getting to whether each defendant knew because each defendant is liable for their own actions. The officers responded quickly once the assault began. And in fact, part of the undisputed facts that were not addressed by the court in its order with regard to defendants, the supervisory defendants. One was Lieutenant Roy. He responded quickly as did officer boy. They got the up. I see my time is. Thank you. They responded quickly. They removed the other prisoners. They got medical attention for Mr. Danzer Lieutenant Roy, defendant Roy, interviewed a number, interview dancer and interview a number of other prisoners. So they responded reasonably to his assault. Thank you, mother. We'd like to come down and greet council and we'll take the brief recess