Best to answer all right Mr. Lindeman if you're ready we'll be glad to hear from you Thank you honor mayor please the court my name's Andrew Lindeman along with Jim Parham We represent the appellants in this matter the appellants you represent all three of the appellants yes, young Let me ask you something which Brothers may a little bit is the doctor properly in this case and As far as I understand it he as far as jurisdictionally The doctor is in the case as far as I know I'm not following your honors Well, I've scoured the record and I can't find any evidence That the doctor violated any constitutional right Okay, I understand now the gist of your argument and you conceded the the first prom on the opening Brief and on your reply brief And so that pretty well got to dr. Lockdown hadn't well we didn't concede it We conceded that in order to have appellate jurisdiction this particular court Based upon Mitchell v. Forsyth and the progeny that have come since then that any type of issue that involves a factual question or genuine issue of factual genuine issue of fact and dispute cannot be the basis for an interlocatory appeal before this court and for that reason because of those jurisdictional limitations we have Directed our arguments the second prong of the qualified immunity analysis. I know you've conceded the first prong I'm looking at page 14 if you're brief The pelonson out appealing to this the court's ruling on the first prong of qualified immunity analysis Quote there is evidence in the record in light most people to the plaintiff from which the reason we're very confined That these defendants all three were deliberately indifferent to the serious medical east of the plaintiff Now where is the evidence against the doctor? Well Obviously if this court is is is ready to deal with the first prong on the unappealed We certainly do not concede that point we've conceded that point you've already waved it Well, we haven't we haven't waved it because it isn't it is the issue that judge curry in the court below as alleged there was found that there was a genuine issue material fact and dispute Now I agree with you honours. I don't believe that there's any evidence of any of the plaintiffs in the court below many of the defendants in the court below Actually were deliberately indifferent to the plaintiff's clearly established right We can't weigh that out again. We have to take what the judge found That's correct. I mean and that is why we have focused our appeal In order to comply with the jurisdictional limitations on the on the second prong of the qualified immunity analysis What's the difference between here a qualified immunity issue on motion and dispute This means as opposed to a summary judgment motion, which you seem to say there's some problem Well, this was this was heard by the court below on a motion for summary judgment So obviously the record was much more developed. It was not based simply on the pleads I want you to explain to me how you get around your waiver of the first prong again on your reply brief at page five It's bad repeating that the Prove concession of hellish or not appealing a district court to not have qualified a move community on the first prong How you get around that? Well again, I would ask this court to I mean we have appealed clearly on the second prong Second prong presents solely a legal issue as a result this court we would submit as a pellet jurisdiction over that and based upon the Analysis of the second prong we believe that the three Medical personnel the three defendants are entitled to qualify to immunity So despite the fact that there was a finding by the lower court that there were genuine issues and material facts To go to the first over to my other question. What is the evidence against the doctor? That might be a better question to ask the other side I don't believe that there is a sufficient evidence to go against the doctor the doctor was a Physician who was on call he was on call statewide on that particular weekend night He did not actually come to the prison. He did not actually see Mr
. Vincent himself He was relying on information that was relayed to him By the nurses he based upon the history that was provided to him We contend that his actions were appropriate and of course we also have expert testimony that supports that that's in the record So I certainly am not conceding and only reason why this cases in the posture is in is based upon the way the lower court Addressed it and in order to bring a proper and a locatory appeal before this court We have focused on the legal question the legal question is the analysis under the second prong of qualified immunity analysis You don't want to address the first problem. Well, I'm happy to address the first I think it's way for which you've got in your brief twice This way we're playing cannot even be reviewed for playing error well I Think it can be probably reviewed by for plain area if this court Belize as jurisdiction to decide that that issue again what I was trying to really focus is to make certain that We had jurisdiction before this court in fact there was a motion to dismiss this appeal on jurisdictional grounds that was filed shortly after it was heard after it was filed And as a result we clearly wanted to focus on the second prong and again as I indicate I think that the Appellants are entitled to relief and entitled to qualified immunity on the second prong of the analysis The second prong does present purely a legal issue if presents the question as to whether or not There's controlling authority in either the not from the United States Supreme Court or from this particular court that would indicate to these Medical personnel are more specifically objectively reasonable medical personnel in the same position as the appellants Uh That they're conduct As the ledge by the plaintiffs taking the evidence a light most favorable to the plaintiff Uh did not violate clearly established constitutional rights and of course We contend that the district court did not Uh do a proper analysis of the second prong of the qualified immunity analysis and quite frankly Uh in judge Curry's order There's absolutely no discussion of the second prong she did adopt the report recommendation of the magistrate judge and the magistrate judge Dispositive the second prong with one conclusory sentence The only supporting authority cited by the magistrate judge was the Estelle versus gamble case and the former V V Brennan case both of which are cases the deal with delivered in difference in a very general sense Deal with the general principles that have developed by the Supreme Court Have nothing to do with the very specific factual scenario that is present in this particular case And one of the things that is developed and qualified immunity jurisprudence over the years and this United States Supreme Court has been very specific to To target this and this court has been very specific to target it is that you must look at the clearly established right The existence of clear established right not in a general sense Which is what the magistrate judge did simply by citing a stale and farmer But you must look at with a high degree of particularity and I'm citing the this court's decision in edwards versus City of Goldberg But just in 2011 one of the most recent Supreme court cases dealing with qualified immunity the Ashcroff versus Elkid case Uh the Supreme Court even cautioned and actually called out the ninth circuit in particular the court said We have repeatedly told courts in the ninth circuit in particular not to define clearly established law the high degree of generality The court then went on to say the general proposition for example that an unreasonable search or seizure violates the fourth amendment Is a little help in determining whether the violative nature of particular conduct is clearly established We have the same circumstance here instead of having the fourth amendment. We have the eighth amendment Well, what what is generalized by the following facts? They knew that intestines were protruding with all the placed immunospecary strength care This is a court in defense, but it's obviously just Curry accepted as a factual dispute number two they recognized the condition was life threatening and a medical emergency And number three they failed to secure appropriate medical care I've been sitting there to the chair And under farmer don't they get by that generalized uh Eighth amendment claim as you say I don't think so judge Floyd and because What the district court didn't do in this case and what we contend is appropriate to look at the clearly established right in a very specific sense with a high degree of particularity used courts terms Uh to look at it Applying the decision from salsar versus cats to look at it in the specific sense the specific context of the case This is not a simple mere delay in medical treatment case You've got a factor in a number of different circumstances or what I've been called in our brief Extenduating circumstances including the fact that Baxter Vincent was an inmate with a long history of self-injurious behavior He is someone you got to look at the history that the department was just dealing with in these particular nurses We're just dealing with Baxter Vincent just in the previous week he had previously been hospitalized about a week before After putting a paper clip and jabbing that into his abdomen He was referred to Richelma Moral then was referred to a surgical clinic and made a decision that the paper clip didn't need to be removed I we were dealing they were the nurses were dealing with an inmate who was refusing medical care The first thing he did on the evening of March 7th was he lacerated both his left and right arms And then he refused any type of treatment or medical care for that particular injury Plus a week before when he'd also lacerated himself Nurse Sherman while she was trying to administer medical care to him and all of this is undisputed in the in the record When she was administering medical care to him he assaulted her So you had a nurses and medical person now who had to be concerned about their own personal safety Are you arguing that if this person if the inmate has Uh And testes that are exposed as a result of injury whether he's a good inmate or a bad inmate or he did it or somebody else did it As a factor we could sit should consider in determining whether or not he's entitled with medical care I'm not suggesting that his disciplinary history Necessities whether or not you provide someone medical care and not clearly that's not the case What I'm suggesting is you got to consider the dangerousness of the inmate you got to consider The nature of the inmate himself I don't recall the nurses saying we didn't treat him because we thought he was dangerous I thought the testimony and looking at it in light most favorable to the plaintiff is they didn't see it Well, what I see that his out is and testes works well What I'm addressing is taking a light most favorable to the plaintiff their contention is the the The evisceration was already prominent and noticeable at 1030 at night to the nurses To the nurses and that was prior to placing him into the restraint chair And that's the key issue as well at least as far as the district district court is concerned and When that occurred it was still several more hours and they saw the Intests and truthy when they had him in the chair I Well the the issue that I'm getting to is that they're extenuating circumstances that would Justify putting him in the chair and that's some of the things that I was just outlining There's also obviously a major consideration that this is a self injurious inmate He was a known cutter. He was part of the behavior management program Which was designed to address cutters? That's why he was at broad river because that's where that program was and so part of putting him in a restraint chair Was of course it was twofold it was number one to stop his self injurious behavior and number two in order to Provide protection to the medical personnel so that they could then administer treatment The facts of this case are that even though he was actually restrained He had a razor hidden in his mouth that he dropped into his lap And that's what he did he used to then cut open his abdomen at approximately 1030 so of course the medical personnel don't know whether he's got any other weapons whether he still has that razor blade Where he can get access to it So what we're suggesting is for objectively reasonable medical personnel Which is the way we do we look at this under qualified immunity in the second program in particular You have to look at whether or not it was reasonable to put him in a restraint chair And it would be number one for self protection for him The number two to provide safety for the medical personnel so that they could then treat him And if the court has seen the videotape of this incident you will notice Immediately after he is restrained in the chair the nurses are able to administer care to it And I would submit to the court that's a the care that was submitted the plaintiff's own expert doctor in the wind Testify that that was appropriate the dressing that was placed on the open on the open wound in the in the abdomen so Again the point of the second prime analysis is you can't just look at this in a generalized sense like the district court could or did You have to look at the specific circumstances you have to look at it within the Factual scenario that's presented. This is not a run of the mill delay of medical treatment case This case involves numerous Extenuating circumstances and for that reason we contend that qualified immunity should have been granted to these medical personnel Thank you, let them and you've got some time reserved in reply Mr. Moore May please the court Let me start with you How did it affect your case to have the doctor in this case? Well the doctor who was at the time licensed position was on call for the entire state of South I'm sorry. Just tell me what is the evidence of The evidence says that violation of the Plain Constitution right. What is the evidence of that in this record? The evidence says the district court viewed it was that doctor walls In a light viewed in a light most favorable to Mr. Vincent was aware that he had a protruding intestine That he recognized that this was a potentially life threatening medical emergency When did the doctor first learn that? That's in dispute, but as early as 1230 p.m
. That's not the way I read the record. I know that the doctor authorized placing Mr. Vincent in the chair He was not told at that time that there was any protrusion of the intestines And later when the nurses discovered that Reportedly they immediately called the doctor and the doctor immediately said take him to the hospital Now if I left out anything Yes, Your Honor, that's in dispute what the nurses actually told doctor walls He testified that he was not aware of a protruding intestine when he was first contacted However, he was aware of an eviscerated bowel which can be as he testified a life threatening medical emergency that requires About argument. I think they're wanting to see him because I don't think the doctor had any knowledge from this record About that, but one time And he when he was advised of that he immediately told him to take him to the hospital Yes, Your Honor If we can see that he did not know the protruding intestine He at least knew that he had a bowel evisceration and knew that he had a history of mental illness And instead of sending him to the hospital Which is a life threatening medical emergency. He testified he acknowledged that it could be He ordered that back to Vincent be placed in a non-stero Five-point correctional restraint chair for eight hours For the papers Was he aware at that time of the extruding bowel or the eviscerated intestine Was he aware of that at the time he told the nurses to put him into restricted chair? He testified that he was aware of a bowel evisceration The when as soon as the nurse has contacted him That they informed him that there was a bowel evisceration He testified that he believed it was superficial He testified that a bowel evisceration can be a life threatening medical emergency that requires immediate medical attention And despite his knowledge Instead of sending him to the hospital he ordered that Mr. Vincent be placed in this non-stero correctional restraint chair for eight hours Is that his testimony or a deposition or what? Messing his testimony that he was aware of a bowel evisceration Well, I'm aware of that, but his question is when was he aware of it? Anyway, what does it add to your case to have the doctor in it? Well, Your Honor, I'm going to be just covering the jurisdiction argument today But it adds a lot because he is the one who authorized the other Appellants the two registered nurses to place Mr. Vincent in a correctional restraint chair. They had contacted him for guidance Is that the focal point of your argument that the doctor should be liable because he authorized the nurses to place him in a restricted chair? Yes, it's part of it's part of our argument We think that all three of the Appellants are responsible But Mr. or excuse me, Dr. Wallace, who again was aware of an eviscerated bowel and ordered that an inmate like Mr
. Vincent with the history that he had to be placed in a correctional restraint chair non-medical for eight hours for behavioral reasons is a big part of our case that is our case against Dr. Wallace However, we assert that this case has not been is not properly before this court the the four circuit court of appeals the United States court Supreme Court has repeatedly ruled that in order for a denou of summary judgment based on qualified immunity to be appealable the appellants must concede to the facts as the district court viewed them Here Mr. Lindeman and the appellants are arguing these a laundry list of extenuating circumstances that this court must consider before they are able to determine whether or not qualified immunity is available We understand that we can't weigh the evidence So what's wrong with the summary judgment stage with an inlocatory appeal? Ascent, we don't weigh the evidence. If you don't weigh the evidence and you accept the plaintiff's version of the facts as being true for the purpose of this appeal and are able to parcel out an issue of law from this appeal then this court definitely has jurisdiction to entertain that issue of law. However, we believe that the appellants in their appeal have mixed questions of fact with questions of law which is not a proper interlocutory appeal. By asking this court to consider these extenuating circumstances these extenuating circumstances are all contradictory. It's contradictory that he had a weapon but he was a threat of harm to himself and he was a threat of harm to the nursing staff. It's a highly disputed fact that he'd been laying in bed. He was a threat to harming himself. By the time that he, that the nurses and the doctor or just the nurses had found him there is no evidence that he was going to continue to do anything else
. He just needed to get the host. Because he had used up all the razor blades he had? Yes, Ron. There was nothing else for him to use. He was in a crisis intervention cell where he should not have had access to these items in the first place. But the issue of him being a threat of harm to others is a highly contested fact. And the lower court considered all of these facts when they ruled in a light most favorable to the plaintiff that there was a constitutional violation. And so, yes, under the wind-filled case, under the ICO case, if this court makes the determination to parcel out the question of law and apply it to the facts as the district court view them, there would be jurisdiction. But the appellants here are not asking to do that. And the appellate jurisdiction is very limited. The Supreme Court has been very clear that in order to burden this court with the midstream appeal, certain requirements must be met
. And the appellants have not met that requirement of isolating an issue of law for this court to consider. And unless this court hasn't been required. And the argument is that if, even if you take all of the testimony and evidence and you view in the light most favorable to the plaintiff, the law is still not clearly established that constitutional right was violated when they took the actions they did, or didn't take action. Right. And Mr. Evans is going to be arguing qualified immunity. He's going to address that issue. But in order for this appeal to be properly before this court, yes, the facts must be considered in light most favorable to the appellate. And the court must accept the facts as the district court viewed them. In fact, there's case law out there that says the court must accept the facts as the as the plaintiff presented them, unless in those unusual circumstances when the allegations clearly contradict with the evidence
. And in the ICO case, for example, when there was a video that contradicted some of the plaintiff's testimony. But here we have a video that only supports our allegations. Unless the court has any more questions for me, I'm going to ask Mr. Evans to address the remaining issue of qualified immunity. Yes, sir. May it please the court. Again, the appellance in this case have made this an issue of extenuating circumstances, which takes this out of the case being about a simple delay in medical treatment. However, the record is presented to the district court makes it clear that this is exactly just that. This is a delay in medical treatment case. In fact, a six-hour delay while Mr
. Vincent's intestines were spilling out into his lab. He was left by himself for two hours in the cell where he still has access to razor blades, if one still existed at that point in time. Again, that's a contested issue. Mr. Vincent's testimony was that he placed the razor blade into his abdominal wall past his intestines and no longer had access to it. Correctional staff and medical staff had never locate the razor blade either in trauma surgery or in cleaning out the institution. Again, after the two hours being left alone in the cell, Mr. Vincent was forcibly placed into a restraint chair for two hours with such force that the ratchet straps visible in the joint appendix caused additional intestines to spill out into his lab. He was left by himself for two hours, removed from the restraint chair, and in additional two hours inexplicably elapses before he's thrown onto the floor of a miniband and driven by correctional staff to the hospital wherein he is immediately taken into trauma surgery and spends a combination of two months either in the infirmary and in the hospital having multiple procedures. To clean this wound out and to put his internal organs back in his body, this is a case that at its heart is a simple delay in medical treatment
. It's involving a life-threatening medical condition that all of the appellants have conceded. Had they seen it, they would acknowledge that this is a life-threatening medical condition. There is a clear dispute in the record as to whether or not they saw this issue. They've saw this evisceration. The extenuating circumstances that the appellants would like this court to factor into the analysis to determine whether the right was clearly established are all highly controversial. The fact that Mr. Vincent was self-injurious, if only thing, only increases the emergency nature of the situation. The refusal of medical care is something that is highly controversial. If there was any refusal at all, the only refusal was when Mr. Vincent's prior arm wounds were attempted to be glued back together, he said, I don't want you to glue my arms back together, I'd like to see a doctor
. In fact, some 14 hours later when he was taken into trauma surgery, his arm wounds required cauterization and stitches. They were still actively bleeding out of the leave. It was some 10 hours later when he finally made it into trauma surgery. Let's talk about well-known laws clearly established. What's your best case? Case closes to this when they're wounded. But the doctor and nurses all noticed that their actions or inaction would violate this definition of a constitution. Farmer versus Brennan would be our closest case because that is the case that set the failure of a prison official to act in the face of a serious and life-threatening medical condition is a clearly established, aether amendment violation. I now hate to cut you off, but as I understand the pellets argument, it is that the facts in Farmer are so far apart from the facts in this case that it could not be constituted and clearly established by law that this treatment or lack of treatment was unconstitutional. What's your response to that? Our response to that is that whether or not the facts were on point in that case, the law clearly said a mandate that prison officials are required to respond and to act. They cannot fail to act in a situation where they know of a life-threatening medical condition
. Factually, we would contend that the case that would be most on point would be the Supreme Court's decision in hope versus Pills. In that case, an individual, the Supreme Court was appalled at the open and obvious aether amendment violation where an individual was handcuffed to a hitching post for six hours, left without a shirt thereby exposing him to a sunburn. Here we have an almost identical time period that elapsed. We have an individual that was not only handcuffed to a post, but he was forcibly ratcheted into a restraint device with such force that additional intestines were forced to spell out into his lap. And he was left with his external organs exposed to the outside world. And that's going to be a great jury argument. The question we got is on the question of law, what case puts these doctors and nurses on notice? And you use the term open and obvious. Is it your position that some treatment or lack of treatment is so obvious that it can't help but constitute a deliberate indifference to the medical needs of the defendant? It is. And Ross Alvers' Hagan, the court said, of course, in an obvious case, these standards can clearly establish the answer even without a body of relevant case law. That was then echoed in Hope v. Pelsar in which the Supreme Court found that the treatment of handcuffing this individual to a hitching post was such an open and obvious violation of the aether amendment right to be free from cruel and unusual punishment that no factually relevant precedent was on point. But you know, I think we have a case in our circuit where deputies handcuffed a defendant to a light post and then called the deputies in the adjoining county to come get him and left him handcuffed to a light post. And I believe we said there that there was no constitutional violation. Exactly. You're under that case. The defendants were police officers, were custodial staff. In this situation, we have medical personnel who under farmer are responsible for safeguarding the inmates' right to access to medical care and to access to adequate medical care. And that's the major distinguishing factor between those two situations. Here we have a formerly licensed surgeon to register nurses who all testified that they acknowledge that a bowel of his serration is a life-threatening condition. The only thing they don't acknowledge is whether or not they knew about it at the time, which again would be a proper argument under the first prong of the qualified immunity analysis, but that argument can only be made after we have our jury trial in this matter
. Pelsar in which the Supreme Court found that the treatment of handcuffing this individual to a hitching post was such an open and obvious violation of the aether amendment right to be free from cruel and unusual punishment that no factually relevant precedent was on point. But you know, I think we have a case in our circuit where deputies handcuffed a defendant to a light post and then called the deputies in the adjoining county to come get him and left him handcuffed to a light post. And I believe we said there that there was no constitutional violation. Exactly. You're under that case. The defendants were police officers, were custodial staff. In this situation, we have medical personnel who under farmer are responsible for safeguarding the inmates' right to access to medical care and to access to adequate medical care. And that's the major distinguishing factor between those two situations. Here we have a formerly licensed surgeon to register nurses who all testified that they acknowledge that a bowel of his serration is a life-threatening condition. The only thing they don't acknowledge is whether or not they knew about it at the time, which again would be a proper argument under the first prong of the qualified immunity analysis, but that argument can only be made after we have our jury trial in this matter. Under the second prong, the only issue before this court is whether an inmate who has an active medical emergency is a title to some level of medical care. We contend that the record supports absolutely no medical care was provided to Mr. Vincent. He instead was allowed to remain for six hours with his external organs exposed. Another case that has been cited for the proposition that this has clearly established is the ICO versus Shreve case. That was a case in which an inmate had been doused with pepper spray and was provided with no medical care. The four circuit, this court in that case defined the applicable right as the right to adequate medical care, very broad sense. In that case, the court said it's clearly established that an individual who's suffering who has been exposed to contaminants, who is suffering from an emergency, has a right under the A-fmm to adequate medical care. That's a case that again would be factually on point. The appellants have attempted to distinguish that case arguing that, well, that's a case involving correctional defendants rather than medical defendants
. Under the second prong, the only issue before this court is whether an inmate who has an active medical emergency is a title to some level of medical care. We contend that the record supports absolutely no medical care was provided to Mr. Vincent. He instead was allowed to remain for six hours with his external organs exposed. Another case that has been cited for the proposition that this has clearly established is the ICO versus Shreve case. That was a case in which an inmate had been doused with pepper spray and was provided with no medical care. The four circuit, this court in that case defined the applicable right as the right to adequate medical care, very broad sense. In that case, the court said it's clearly established that an individual who's suffering who has been exposed to contaminants, who is suffering from an emergency, has a right under the A-fmm to adequate medical care. That's a case that again would be factually on point. The appellants have attempted to distinguish that case arguing that, well, that's a case involving correctional defendants rather than medical defendants. If anything, that will make the analysis much more clear, because unlike a correctional defendant who may not know the contours of medical emergency, each and every one of the appellants in this case are medical professionals that knew the risks associated with having your external organs eviscerated. Well, the problem I have with your argument particularly when you're seeking qualified immunity, you've got to dispute this to the facts. You and the opposing counsel agree as to who knew what went and what they did. We can't, as Judge Floyd pointed out, we can't determine what the facts are. And it seems to me that unless you can make a better clear for a clearing argument, this is not a case that we can grant qualified immunity. We continue, Your Honor, that to dispute about the facts would go to the first prong. And that is something that can only properly be before this court after the case is withdrawn. There's no question about how his condition deteriorated and when the vows were discovered and so forth. But the question is, when, what did the doctor know, we've already addressed that, but when did the nurses know? The record is set forth by the district court establishes that as early as 1017, the doctors and the nurses knew of a bowel evisceration. If not, an actively exposed intestine, the nurses, according to the district court, knew that as early as 1017 and the doctor at minimum knew of a perforated abdomen, at least at most a eviscerated bowel
. If anything, that will make the analysis much more clear, because unlike a correctional defendant who may not know the contours of medical emergency, each and every one of the appellants in this case are medical professionals that knew the risks associated with having your external organs eviscerated. Well, the problem I have with your argument particularly when you're seeking qualified immunity, you've got to dispute this to the facts. You and the opposing counsel agree as to who knew what went and what they did. We can't, as Judge Floyd pointed out, we can't determine what the facts are. And it seems to me that unless you can make a better clear for a clearing argument, this is not a case that we can grant qualified immunity. We continue, Your Honor, that to dispute about the facts would go to the first prong. And that is something that can only properly be before this court after the case is withdrawn. There's no question about how his condition deteriorated and when the vows were discovered and so forth. But the question is, when, what did the doctor know, we've already addressed that, but when did the nurses know? The record is set forth by the district court establishes that as early as 1017, the doctors and the nurses knew of a bowel evisceration. If not, an actively exposed intestine, the nurses, according to the district court, knew that as early as 1017 and the doctor at minimum knew of a perforated abdomen, at least at most a eviscerated bowel. Instead of ordering medical treatment or providing medical care, Dr. Walsh, according to the Joint Appendix, ordered Mr. Vincent into the restraint chair for behavioral purposes, not so that he could secure medical treatment. Well, that's not really that record. I don't think the doctor knew about the eviscerated bowel at that time. The way I read this record, the first time he had knowledge of it was when the nurses told him and that's when he ordered that Mr. Vincent be transported to the hospital. The doctor acknowledged that he did know about some level of bowel injury as early as the first phone call at 1017. He may have known about the fellow having a razor blade and injuring himself and so forth, but I don't think at that point the eviscerated bowel was that obvious even to the nurses. Your Honor, be opposition that that is a matter that can only be clarified by the jury in this case
. Instead of ordering medical treatment or providing medical care, Dr. Walsh, according to the Joint Appendix, ordered Mr. Vincent into the restraint chair for behavioral purposes, not so that he could secure medical treatment. Well, that's not really that record. I don't think the doctor knew about the eviscerated bowel at that time. The way I read this record, the first time he had knowledge of it was when the nurses told him and that's when he ordered that Mr. Vincent be transported to the hospital. The doctor acknowledged that he did know about some level of bowel injury as early as the first phone call at 1017. He may have known about the fellow having a razor blade and injuring himself and so forth, but I don't think at that point the eviscerated bowel was that obvious even to the nurses. Your Honor, be opposition that that is a matter that can only be clarified by the jury in this case. I see that my time has expired. Mr. Court, I would further question your yield to the appellans. Thank you, Your Honor. Thank you, Mr. Evans. Mr. Lunderman. Thank you, Honour. I think it's very telling that the appellans take the position that the closest case on point is former versus Brennan
. I see that my time has expired. Mr. Court, I would further question your yield to the appellans. Thank you, Your Honor. Thank you, Mr. Evans. Mr. Lunderman. Thank you, Honour. I think it's very telling that the appellans take the position that the closest case on point is former versus Brennan. I would submit the score. Obviously, former versus Brennan is a very important case in the deliberate and difference jurisprudence because it clarified the definition of deliberate and difference, but it was not a medical case. It was a duty to protect case. It was a transsexual who was placed in the general population of the prison and the issue was whether and not prison officials were deliberately indifferent to the safety of that individual in May because of its sexual orientation of the fact that the person was a transsexual. What do you say about the hope case? Well, the hope case, again, it's not a medical case. It's, and as Chief Judge Shrakeser pointed out, I mean, this court has the Robles case, which is a very, very similar facts to that. We're qualified immunity was applied by this court, but it's not a medical case. It's a law enforcement case and what we have here is obviously medical issues. The only parties that are still in this case are the medical personnel. And let me make one other point about the fact that there's no controlling authority
. I would submit the score. Obviously, former versus Brennan is a very important case in the deliberate and difference jurisprudence because it clarified the definition of deliberate and difference, but it was not a medical case. It was a duty to protect case. It was a transsexual who was placed in the general population of the prison and the issue was whether and not prison officials were deliberately indifferent to the safety of that individual in May because of its sexual orientation of the fact that the person was a transsexual. What do you say about the hope case? Well, the hope case, again, it's not a medical case. It's, and as Chief Judge Shrakeser pointed out, I mean, this court has the Robles case, which is a very, very similar facts to that. We're qualified immunity was applied by this court, but it's not a medical case. It's a law enforcement case and what we have here is obviously medical issues. The only parties that are still in this case are the medical personnel. And let me make one other point about the fact that there's no controlling authority. The only other case that is cited, in fact, the only case that was cited in the appellee's brief is ICO versus Shrieve. We distinguish that case on a number of accounts, but more so than distinguishing the case. That particular decision didn't come down from this court until August 6, 2008. The events had already occurred in this particular case. The events here were March 7th and 8th of that same year, 2008, but I don't know of any authority that would suggest that a appellate decision post the events could possibly be considered as putting the individuals on notice that their conduct was in violation of constitutional rights. So the simple fact that the ICO case wasn't decided until several months after these events, I think shows quite clearly that these particular defendants could not be held responsible for knowing of the existence of that particular decision. What is telling and what is clear is that there is no controlling authority on this particular issue. Do you think there has to be? No. And I would agree that in very, very far-fetched circumstances, there does not have to be. And in fact, the case I cited earlier from the Supreme Court from 2011, the Ashcroff versus the LKID case, the Supreme Court actually clarified that point
. The only other case that is cited, in fact, the only case that was cited in the appellee's brief is ICO versus Shrieve. We distinguish that case on a number of accounts, but more so than distinguishing the case. That particular decision didn't come down from this court until August 6, 2008. The events had already occurred in this particular case. The events here were March 7th and 8th of that same year, 2008, but I don't know of any authority that would suggest that a appellate decision post the events could possibly be considered as putting the individuals on notice that their conduct was in violation of constitutional rights. So the simple fact that the ICO case wasn't decided until several months after these events, I think shows quite clearly that these particular defendants could not be held responsible for knowing of the existence of that particular decision. What is telling and what is clear is that there is no controlling authority on this particular issue. Do you think there has to be? No. And I would agree that in very, very far-fetched circumstances, there does not have to be. And in fact, the case I cited earlier from the Supreme Court from 2011, the Ashcroff versus the LKID case, the Supreme Court actually clarified that point. And they said, and I think this is very important, they said, we do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. That's the first time they use that language beyond debate. And I would suggest if you apply that language from the Ashcroff or the LKID case, to this case, the unconstitutionality as alleged of the actions of these medical personnel was not beyond debate under the specific circumstances. So when you look at the clearly established right and determine whether it was clearly established in, with the degree of particularity that's required both by the Supreme Court and this court, and you look at it within the specific factual circumstances as required by the Supreme Court, you apply that beyond debate language. I do not believe, and I respectfully submit to this Court, that there is not controlling authority that would have put an objectively reasonable medical personnel, either nurse or doctor in the position of these two nurses or doctor walls, that their conduct on that particular night violated the plaintiff's constitutional rights. Even if you accept Ashcroff, is we have to do this posture, in the case of this posture, that they saw his testes were exposed, and they put him in the straight chair anyway, and they didn't tell the doctor, and they left him in the straight chair, that it's still debatable, and still well and not, they were deliberately in the effort. Yes, under these circumstances, and of course, again, this is not your one-of-the-mill delay case, and I also submit that if you look at the testimony of Dr. Newin, who's the plaintiff's medical expert, he describes the delay as three hours. And during that three-hour period, it's not that the plaintiff didn't get any type of medical care. In fact, he got what Dr
. And they said, and I think this is very important, they said, we do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. That's the first time they use that language beyond debate. And I would suggest if you apply that language from the Ashcroff or the LKID case, to this case, the unconstitutionality as alleged of the actions of these medical personnel was not beyond debate under the specific circumstances. So when you look at the clearly established right and determine whether it was clearly established in, with the degree of particularity that's required both by the Supreme Court and this court, and you look at it within the specific factual circumstances as required by the Supreme Court, you apply that beyond debate language. I do not believe, and I respectfully submit to this Court, that there is not controlling authority that would have put an objectively reasonable medical personnel, either nurse or doctor in the position of these two nurses or doctor walls, that their conduct on that particular night violated the plaintiff's constitutional rights. Even if you accept Ashcroff, is we have to do this posture, in the case of this posture, that they saw his testes were exposed, and they put him in the straight chair anyway, and they didn't tell the doctor, and they left him in the straight chair, that it's still debatable, and still well and not, they were deliberately in the effort. Yes, under these circumstances, and of course, again, this is not your one-of-the-mill delay case, and I also submit that if you look at the testimony of Dr. Newin, who's the plaintiff's medical expert, he describes the delay as three hours. And during that three-hour period, it's not that the plaintiff didn't get any type of medical care. In fact, he got what Dr. Newin testified was appropriate medical care, that is, after he was placing the restraint chair, so it was safe for the nurses to be able to deal with him, that they properly dressed the wound. But he didn't get the same degree of medical care. Obviously, that he got once the doctor knew his testes were exposed. He didn't get transported to the hospital immediately. That was the treatment that he would get at the hospital. That's correct, but he did receive medical treatment. Now, as this court well knows, there's a difference in the jurisprudence between cases, where you get no medical care, and you get some medical care, and there's a disagreement as to the medical care that's required. Obviously, if the amendment claim is on a medical malpractice claim, I know this court's well aware of that, and delivered in differences of very high standard. And so, if there's a disagreement as to the level of medical care, or believe that different medical care, or a higher degree of medical care, was required in the circumstances, that is pertinent to a medical malpractice claim, but it's not pertinent to a cruel and unusual punishment claim. And so, again, our position is, there needs to be controlling authority in order to satisfy the second prompt
. For me, this court, or from the Supreme Court, that would put an objectively reasonable medical person, such as these nurses or this doctor, on notice that their actions were violating Mr. Vincent's constitutional rights. I could not find any such authority. I don't believe there's any such authority has been cited this court. The two cases, former and the Stell do not provide for that. The ICO case, even if it did, didn't occur, didn't come down from this court until after these events, we submit that this is a clear case where the second prong has been met and asked that the court remain for entry of some re-judgment based upon qualified immunity. Thank you, Mr. Levin. Ladies and gentlemen, normally