Thomas versus Carter is Glazer. Morning. May I please support? I'm on the list on behalf of the defendant's appellants. There were four people being sued for money by a prisoner, claiming deliberate indifference to serious medical needs. The defendant's appellants are Miss Bessie Carter, a nurse, Dr. Dennis Laravia, the former medical director, treating physician. Yeah, no, we know all that. Oh, OK. Just go ahead and move to your legal points. There are no disputes of fact. The issues are all purely legal. The first issue is what the plaintiff's constitutional rights are based on the facts and circumstances. The second legal issue is what the defendants were obligated to do under clearly established law. In this case, why don't we take the one way of separating this and address whether or not the warden can even appeal? Did you claim qualified immunity and district court for the warden? Yes, Your Honor. Now, as I understand it, the warden was erroneously sued under a Respondee at Superior or a Bicarious liability something. But did you ask for qualified immunity? Yes, Your Honor. And I don't see the basis in your brief for why he would be entitled to qualified immunity. What did he do? What is he charged with doing? The reason he's, oh, he's runs the jail. He had no personal involvement in any of the plaintiff's constitutional rights, unless absent a constitutional violation or objectively unreasonable conduct by the warden, he's entitled to qualified immunity. But he was not charged with doing anything, except responding out superior. And Judge Bergen pointed out, well, he can't be level on that basis under 1983
. So, and then she suggested what might be done to keep him in the case, but she just dismissed him without prejudice. I don't know how you have the right to be here, how the warden has the right to be here on this appeal. Certainly those that were denied qualified immunity have that right. She did not deny qualified immunity. Now, he might have asked for it, but I'm just puzzled as to how on earth we could find he has qualified immunity when he was not charged with doing anything. It's a question, as I understand it, Judge Bergen, it's a question of the Pelladier station. I understand. Well, in finding that the warden is an alleged to have done anything, the judge found that he is an alleged to have committed a constitutional violation at all. And she suggested. You never found that. She just said he cannot be sued on this basis. So, I'm going to dismiss without prejudice. And then she suggested to the plaintiff, and I assume the plaintiff was pro-say. At the time, yes. What he might do, or he might, he might do to maybe have a claim against the ward. In his official capacity. Yes. Which does implicate sovereign immunity, which is also appealable. I mean, he is a state employee, and he can't be sued in his official capacity. But it's kind of, it's almost interlocutor, and I realize it's a dismissal, but it's a dismissal of that prejudice because there's this feeling that there'll be a repleter or a possibility of repleter
. And ordinarily, we allow a pro-say, let again, to have another obtained, particularly now if they have counsel and so on. So I guess why are we dealing with that until we know if there's going to be a repleter or what that says, you know, did he state a claim for, you know, policies and procedures and so on that will give rise to that kind of liability? My understanding of the judge's decision is that, well, just procedurally, we were ordered to file a motion for summary judgment on qualified immunity on behalf of all four defendants, which is what we did. And the magistrate judge recommended that the motion be granted, found that all four were entitled to qualified immunity. The district judge impartially rejecting that a report and recommendation found that the plaintiff hadn't pleaded any action, I guess, by the warden, that he was only sued as a responde at superior, but she affirmed the magistrate judge's finding on the warden except that she dismissed him with prejudice despite the fact that there were no federal claims properly pleaded against him in his individual capacity, nor was their evidence put on in opposition to the motion for summary judgment on the warden's alleged conduct. I mean, the warden was sued and so the warden, and so those claims should have been dismissed with prejudice. Our understanding was that it was qualified immunity, that she found he was entitled to qualified immunity, and even though she didn't say it, we were passed the pleading stage at that point. The magistrate judge had a long ago found that he had properly stated a claim. In your brief, you simply say because the warden was, because the plaintiff fails to alleged, the warden was personally involved in a constitutional violation, because he cannot be sued in an official capacity, you ask us to dismiss him with prejudice, and he hasn't been sued yet, so we don't know what might be done. But I'm sorry I shouldn't have even brought this up. You've used up about a 30 year opening argument on the warden, but it's a big question. It's an unfortunate situation where the warden should never have been involved in the lawsuit, but he was. He wasn't dismissed at the screening stage which he should have been, but instead we had to file a motion for summary judgment. I'm not going to hang up on the warden, if you want to keep using up your time, you're not responding to anything I've asked. Okay, but let me ask you something out about Nurse Carter. The judge construed the claim against Nurse Carter as including a claim for delaying referral to the appropriate specialist or physician, and you didn't brief that, so isn't that point waived as to Nurse Carter? I did not interpret the, we responded to that contention in our reply brief, specifically that that had been waived. I did not re-judge Berrigan's opinion as actually identifying such a claim. She said it was attempted, that was the word she used, and then moved on. I mean, she didn't adjudicate it, she didn't find it was plausibly pleated like the other claims. She just said he tried to plead that, but even so, she denied Qualified Immunity from it unequivocally by ordering not Miss Carter produced insurmountable evidence. Okay, and then you didn't appeal that, you're the appellant
. So it wasn't an identified claim even by Judge Berrigan. Well, she identified two claims and that was one of them. No, she dismissed one of them. She specifically said she identified two claims and then dismissed the first one, and allowed the claim on the duty status to move forward. This other claim. You are challenging the denial of Qualified Immunity and appointed counsel for the plaintiff has claimed you failed to brief one of these issues and you respond in your reply brief saying, we didn't even know this was an issue, but here it is, so this might fall under the exception to the rule that we generally don't consider arguments raised for the first time in the reply brief. I think in the light of all this, you probably are entitled to be heard on that point. Thank you, Your Honor. This particular legal claim about a delay of referrals was briefed as to Dr. McVeigh, the law and the facts are the same. There was no harm identified from any delay in a referral. I mean, the referrals that we're talking about were referrals for surgical evaluations, which Judge Berrigan very clearly said is not the claim in the lawsuit. The speed or urgency with which he's getting hip replacement surgery. I mean, he was not delayed, treatment was never delayed. No fact like that was ever identified. And even if somehow or another referrals to LSU to make it simple referrals to the LSU orthopedic department was delayed, they all reached the same result, which is that we're not going to operate right now. So there is no harm, no identified or identifiable that the harm in the delays by Ms. Carter or Dr. McVeigh or Dr. Lurevia
. So I believe that that wasn't a claim brought against Ms. Carter or certainly wasn't clearly identified, but if it was a claim, the result is the same. I mean, she was denied qualified immunity by being ordered to produce unlimited insurmountable evidence against it. But as a matter of law, absent a substantial injury or significant injury, a delay in medical treatment does not violate the 8th amendment. And we're not even talking about a delay in treatment. We're talking about delays in referrals, which brings us to Dr. McVeigh, that's the same claim that was brought against him. And his conduct wasn't objectively unreasonable. Neither... See the doctor that moved on to a different job? No, that was Dr. Lurevia. Dr. I, on that point, could not find a case that quitting is objectively unreasonable conduct. I mean, there was no gap in treatment alleged. That could have been a claim against the warden that if he didn't hire another doctor, and they were doctorless for a while, but that didn't happen because Dr. McVeigh came in. So the claim against Dr. Lurevia, that he, what was the phrase, maliciously dropped the plaintiff's care to his successor
. There's no law to support that. I don't, that can't possibly be a violation of clearly established law, to quit. You could take what your job, and to refer you to another doctor or to turn over the care. It just, it can't be. And Dr. McVeigh... There's no claim that when he left and moved to a new position, he took all the medical records with him and wouldn't allow the man to have them back or something. No, no. Being facetious. Right, no, everybody got all the records that they asked for, both sides in this case. But basically, at the end of the day, the defendants were denied qualified immunity. Certainly the two doctors, Edmiss Carter, and the law does not support, the law does not clearly establish that any of their alleged conduct violated the Eighth Amendment. Ms. Carter is alleged to have unconstitutionally refused to transfer a duty status. That's not a claim. She didn't violate a duty status. There's cases on that. And three days after the plaintiff allegedly asked for a transfer, which is not what the letter said at all, but nonetheless, he mentioned his duty status
. Three days later, Dr. Lurevia implemented a duty status. And most of that amounts to a disagreement between medical professionals about what a duty status should have been at the time. Again, not an Eighth Amendment violation. Unless you'll have any more questions. Thank you, Ms. Lee. You've saved time for your vote. Yes, thank you. Ms. Mills. Good morning, Your Honours, Alison Mills. On behalf of John Thomas. Can you explain to us first what is your claim if you have one, the nature of the claim against the warden? Against the warden? Is it presponding its superior or is it? It was. It was. It won't be. I think that you're correct that we don't, we don't we don't even know what we might allege yet because we haven't re-plated it. And I can't really speak to what claim there might be. I will say, I agree that we don't have a claim for monetary damages. The district court suggested that we might have one for injunctive relief
. I'll go ahead and tell you my client is no longer in prison. So we would not sue to compel. What would be left? I mean, is this an academic debate then about what was just missile with or without prejudice? Yes, sir. Well, really, a lot of, in my view, when something's an academic debate, you really have no more staking. You really ought to say that. Well, this is just spending all this time on something. I mean, I know that's hard for lawyers to concede stuff, but sometimes I'm angry, Your Honor. I did not find out that my client was no longer in prison until Monday, his neighbor called me. Okay. All right. Well, if you're going to tell you that today. Well, we recognize that your court appointed and we appreciate what you're trying to do, Miss Mills. Thank you, Judge. I would like to kind of address. Well, to finish that point out, if you are no longer claiming that it should have been without prejudice or whatever, if you're conceding, it should be with because you have no further claims. I mean, I think that would be an appropriate thing to follow a document with that. If I may, I consider that in the follow letter. Yeah, I mean, obviously you need to confer with your client and I understand that. Can I ask you to explain? It's a little bit confusing with this nurse card or there's a couple of different referrals. But to me, there was clearly one referral that judge, I thought that the judge left open which was this referral from Dr
. McVeigh and the judge did not find that that was dismissed. And so is that what you're saying was waived by failure to be? What are you saying was waived? I would love to address that issue too. They said that this claim we're talking about wasn't clear, made clear in the district court's opinion. The district court's opinion at page 20 addresses nurse carders conduct and she says in the opinion first, a plan of claims that nurse carder expressly ignored his attempt to advise her that he had been scheduled for offsite orthopedic consultations. And she looks at that and she says, not enough there, I don't recognize that claim. Okay, that's not the one that is she. Then she says, plan of also claims nurse carders refusal to transfer as duty does from pint. Is a second claim, she addresses that and she says there's enough there, I'm gonna let that one go. Then she says on the next page, and this is the claim they say she didn't address. Finally, because plan of assault to hold nurse carder liable for any intentional delays in the referral process and has included correspondence related to scheduling of a follow up, the court finds that plan of has attempted a claim for nurse carder's failure to schedule a follow up appointment at LSU based on Dr. McVase referral in October 2012. That claim is clearly here. So there's, I've only got rid of the very first right. I'm not sure that claim is here, but I certainly think it's pretty vague and not very precise and concise, and I think it's understandable that the state might have overlooked that, and I think you raised it in your brief, and now they have responded in their reply. Thank you, Ron. I would like to kind of address what I think are the two big issues here. Oh, wait, wait, wait, so you don't contend there is a waiver anymore? Well, I do, but I think that's your decision. I don't think they addressed it at all. Am I respond to the reply? Well, I think that certainly if nurse carder was aware because my client told her that this referral was out there, then I think we can draw an inference that she was aware that there was a substantial risk that without her response, he would suffer additional harm in the form of pain or possibility of missed opportunity for treatment. Let's do it this way, since if we should decide that it's not waived, because it's discussed in the reply brief, you're entitled to give us a two page letter if you wish that would be your response to that point
. You can also talk about it now, but you can have that out. I would like to kind of frame up what I think are the two big issues, and then when we get to that, if you have additional questions, I'd be happy to answer them. Just limited to that one discrete thing. I guess I understand and I appreciate that. I think there are two big issues here. One, you obviously know is whether there's a clearly established constitutional right at play. And two is whether you have jurisdiction to decide whether a defendant's conduct amounts to deliver and difference to that right. So I would like to briefly address the constitutional right and question first and then get to the jurisdictional deliberate and difference. No, the first question, as you say, is violation of a constitutional right or statute. The second question is objectively unreasonable conduct in the face of clearly established law. That's what we're here on qualified immunity. We're not deciding the merits of his constitutional claim. You're not deciding the merits based on the facts, but they did argue that there is no constitutional right and question. They said that the right here is a right to a hip replacement. That's what they say over and over. There's no constitutional right to a hip replacement. I agree. If I went to jail tomorrow. Thank the key question is objectively unreasonable conduct in violation of clearly established law. And I think how is it objectively unreasonable? Well, I would like to get to the clearly established law part of that
. There is no clearly established law that you have a right to a hip replacement. That's true. But the clearly established law was first announced in a still-of-a-gamble in 19th century. It's clearly established they cannot be deliberately indifferent to his medical needs, et cetera. But how is their conduct objectively unreasonable? So are we assuming that Judge Bargstell that my client does have a serious medical need? No, ma'am, I'm not assuming anything. They don't like to address that. OK. The constitutional right, which is medical attention, medical care for a serious medical need. What is a serious medical need? And by the way, this right, like I said, was first established in a still-of-a-gamble and has been recognized by this court many, many times. There is no doubt that it's clearly established. The question is, does he have a serious medical need? And under a still-of-a-gamble, and this court's precedent, a serious medical need is one for which you suffer excruciating pain, or not even excruciating pain. We have excruciating pain. Pain in suffering that serves no pinological purpose, or a condition for which treatment has been recommended. And we have both here. There's no one disputes that my client suffers excruciating pain. And every doctor that has seen him has agreed that he needs a hip replacement. My client, who, you know, he's a veteran in 2011 before he went in, he was scheduled for this hip surgery. Since 2011, this condition has deteriorated to the point that at his last medical exam, which was in May of 2013, which the Magistrate Judge ordered, he has bone-on-bone articulation in his right hip. He suffers terrible pain. And every doctor that has seen him has agreed, he needs the hip replacement. We have a serious medical need. Now, they say it can't be serious because it's not medically necessary to save his life. That is not the test. A condition to be serious to warrant some care doesn't have to kill you. They say, oh, well, you know, he doesn't have a ride out of the circumstances because there have been state budget cuts and we can't afford it. That also is, I think, a relevant to whether he has a serious medical need. The fact that they maybe can't afford the care. And I don't know the thing. The part of the problem is not whether this prisoner should have been handled differently, but whether you've got really the right defendants. I mean, you, you know, realize it wasn't you, you're a client. Your client's suited guy, whose crime was and he left the job and went to a different job. I'm going to get to that. Okay. Then he's upset about a nurse who has done what she, with the one possible exception of this referral issue, has done what she's supposed to do. Nurses can't go around doing hip replacement surgeries. Even Dr. McVeigh, what is it that he's supposed to do? I mean, the problem really to me is not whether your client has some need that hasn't been met, but whether he sued the right people. And I realize you weren't involved in the start and things might have looked a little better had you been. And the fact that he's prosaed doesn't mean he's wrong and I don't mean to imply that. But do we have the right people for a constitutional violation as to this guy? I think we do and you know what? I'm going to move on to that
. We have a serious medical need. Now, they say it can't be serious because it's not medically necessary to save his life. That is not the test. A condition to be serious to warrant some care doesn't have to kill you. They say, oh, well, you know, he doesn't have a ride out of the circumstances because there have been state budget cuts and we can't afford it. That also is, I think, a relevant to whether he has a serious medical need. The fact that they maybe can't afford the care. And I don't know the thing. The part of the problem is not whether this prisoner should have been handled differently, but whether you've got really the right defendants. I mean, you, you know, realize it wasn't you, you're a client. Your client's suited guy, whose crime was and he left the job and went to a different job. I'm going to get to that. Okay. Then he's upset about a nurse who has done what she, with the one possible exception of this referral issue, has done what she's supposed to do. Nurses can't go around doing hip replacement surgeries. Even Dr. McVeigh, what is it that he's supposed to do? I mean, the problem really to me is not whether your client has some need that hasn't been met, but whether he sued the right people. And I realize you weren't involved in the start and things might have looked a little better had you been. And the fact that he's prosaed doesn't mean he's wrong and I don't mean to imply that. But do we have the right people for a constitutional violation as to this guy? I think we do and you know what? I'm going to move on to that. I think, okay, established the series medical need. I think that what we have here is insufficient evidence. I think the question of whether these people on this record may be held liable for deliberate indifference. I think we've got those facts, but I don't even think you get there. Because I think the district court determined that there should be more discovery. She denied the motion for qualified immunity essentially based on an insufficiency of the evidence. And there is a long, long, long line of cases from this circuit that say, well, actually, it stems from Supreme Court precedent that say you cannot review that denial of a motion for summary, excuse me, a motion for qualified immunity. And so I think you don't even have to get there. You don't even have to decide whether whether there's deliberate indifference here. But if you do, I think you can. I think the district court determined that my client could prove deliberate indifference if he showed that the defendant's either prevented him from obtaining an orthopedic consultation or refused his request for adjustment to duty status. And with respect to Nurse Carter, there's certainly evidence that shows she did delay my client's referrals. And that she also did resist his request for adjustments to duty status. With respect to Dr. Laveria, and you said, how can he be held liable simply for quitting his job? The record is that he received an MRI in November 2011 that showed that my client who has been complaining for week after week, month after month saying, my hip is killing me. He had a broken tooth. They said, how bad does that hurt? He said, my tooth doesn't hurt, but my hip is killing me. Dr. Laveria receives an MRI that shows that my client may have suffered a stress fracture. And he doesn't see him before he quits his post in January 2012
. I think, okay, established the series medical need. I think that what we have here is insufficient evidence. I think the question of whether these people on this record may be held liable for deliberate indifference. I think we've got those facts, but I don't even think you get there. Because I think the district court determined that there should be more discovery. She denied the motion for qualified immunity essentially based on an insufficiency of the evidence. And there is a long, long, long line of cases from this circuit that say, well, actually, it stems from Supreme Court precedent that say you cannot review that denial of a motion for summary, excuse me, a motion for qualified immunity. And so I think you don't even have to get there. You don't even have to decide whether whether there's deliberate indifference here. But if you do, I think you can. I think the district court determined that my client could prove deliberate indifference if he showed that the defendant's either prevented him from obtaining an orthopedic consultation or refused his request for adjustment to duty status. And with respect to Nurse Carter, there's certainly evidence that shows she did delay my client's referrals. And that she also did resist his request for adjustments to duty status. With respect to Dr. Laveria, and you said, how can he be held liable simply for quitting his job? The record is that he received an MRI in November 2011 that showed that my client who has been complaining for week after week, month after month saying, my hip is killing me. He had a broken tooth. They said, how bad does that hurt? He said, my tooth doesn't hurt, but my hip is killing me. Dr. Laveria receives an MRI that shows that my client may have suffered a stress fracture. And he doesn't see him before he quits his post in January 2012. That's sufficient to find deliberate indifference even on this record. How does he on pain meds? Yes, my client did have ibuprofen and no-trin. The rule is that you're supposed to address the pain. Granted, all of us would go get the hip replacement and all of that, and he can't do that on his own. And I get that, but at the same time, if the question is pain, are they deliberately indifferent to his pain and they're giving him pain meds? Isn't that an issue? Well, I think there's a fact questions. And you know, we agree that the record, as it exists, is accurate as to what it says, but my client, even before I got involved, said that the record is missing papers. And he sent me papers that he says are missing. I think this gets back to we have an insufficiency of the evidence case, and you don't have jurisdiction to review that part, and you shouldn't even get to it. But to the pain question, Judge Haynes, and this goes to Dr. McVase conduct. You know, you said, well, what did he do? Dr. McVey had a meeting with my client in July 2012, and you know, my client is mute, so he communicates by scrolling on paper. I can't understand you. He had a meeting in July 2012, and then you said, and you know my client, what? My client is mute, so he communicates by scrolling on paper. And in this instance, Dr. McVey also communicated by scrolling on paper, so we have this written evidence. And Dr. McVey wrote, I agree you need hip surgery and promised to refer my client to an orthopedic specialist. He also said, would you like a wheelchair? And my client said, yes. Okay, that was July 2012
. That's sufficient to find deliberate indifference even on this record. How does he on pain meds? Yes, my client did have ibuprofen and no-trin. The rule is that you're supposed to address the pain. Granted, all of us would go get the hip replacement and all of that, and he can't do that on his own. And I get that, but at the same time, if the question is pain, are they deliberately indifferent to his pain and they're giving him pain meds? Isn't that an issue? Well, I think there's a fact questions. And you know, we agree that the record, as it exists, is accurate as to what it says, but my client, even before I got involved, said that the record is missing papers. And he sent me papers that he says are missing. I think this gets back to we have an insufficiency of the evidence case, and you don't have jurisdiction to review that part, and you shouldn't even get to it. But to the pain question, Judge Haynes, and this goes to Dr. McVase conduct. You know, you said, well, what did he do? Dr. McVey had a meeting with my client in July 2012, and you know, my client is mute, so he communicates by scrolling on paper. I can't understand you. He had a meeting in July 2012, and then you said, and you know my client, what? My client is mute, so he communicates by scrolling on paper. And in this instance, Dr. McVey also communicated by scrolling on paper, so we have this written evidence. And Dr. McVey wrote, I agree you need hip surgery and promised to refer my client to an orthopedic specialist. He also said, would you like a wheelchair? And my client said, yes. Okay, that was July 2012. Dr. McVey didn't actually make the referral that he promised until October. And my client didn't get a wheelchair until February 2013, and he didn't actually get the consultation until May 2013, after the magic judge ordered doctors to examine him. So if you reach this issue, I think what you can find is they had knowledge from which an inference could be drawn that my client would suffer substantial harm without intervention, and that he suffered substantial harm. I mean, what we have here is they clearly had knowledge. But I guess the question is, if they are addressing the pain, can you ever find them liable for deliberate indifference to pain? Well, I think they are addressing it, even if they're not addressing it the way you'd like, because we have a lot of cases where somebody wants to dentures, but they're on a soft food thing, and that's considered good enough, even though most people would rather have the dentures, et cetera. And so here, if he's getting pain meds, that's addressing his pain. Yes, it would be nice to have the sort of catalyc treatment, but if he's at least getting something, I agree. I agree that if he's getting something, we have a fact, a fact question as to whether it's enough. Well, no, I mean, the problem is, on qualified immunity, you have to show as Judge Barksville mentioned that it was objectively unreasonable. So if they are taking steps to address the pain, I mean, part of the problem is it's not entirely clear to me that all of these people have the authority to do what you're asking, in other words, to actually go and do the surgery to actually go and do whatever. And so if they are taking steps to address the pain, is it objectively unreasonable for them to do that? That's the qualified immunity question, not whether they could have handled it better. Well, let's take Dr. McVase example. Is it, and I know that in their briefs, the opposing council has said, well, they didn't say there's someone over some right to a wheelchair, but let's take that example. Is it objectively unreasonable? Is it objectively reasonable that it took Dr. McVase more than a couple of months ultimately to make the referral he promised and that my client didn't get a wheelchair until February 2013? I see, I don't know that Dr. McVase could go get the wheelchair. I mean, I don't think Dr. McVase has to reach you to his own pocket by a wheelchair
. Dr. McVey didn't actually make the referral that he promised until October. And my client didn't get a wheelchair until February 2013, and he didn't actually get the consultation until May 2013, after the magic judge ordered doctors to examine him. So if you reach this issue, I think what you can find is they had knowledge from which an inference could be drawn that my client would suffer substantial harm without intervention, and that he suffered substantial harm. I mean, what we have here is they clearly had knowledge. But I guess the question is, if they are addressing the pain, can you ever find them liable for deliberate indifference to pain? Well, I think they are addressing it, even if they're not addressing it the way you'd like, because we have a lot of cases where somebody wants to dentures, but they're on a soft food thing, and that's considered good enough, even though most people would rather have the dentures, et cetera. And so here, if he's getting pain meds, that's addressing his pain. Yes, it would be nice to have the sort of catalyc treatment, but if he's at least getting something, I agree. I agree that if he's getting something, we have a fact, a fact question as to whether it's enough. Well, no, I mean, the problem is, on qualified immunity, you have to show as Judge Barksville mentioned that it was objectively unreasonable. So if they are taking steps to address the pain, I mean, part of the problem is it's not entirely clear to me that all of these people have the authority to do what you're asking, in other words, to actually go and do the surgery to actually go and do whatever. And so if they are taking steps to address the pain, is it objectively unreasonable for them to do that? That's the qualified immunity question, not whether they could have handled it better. Well, let's take Dr. McVase example. Is it, and I know that in their briefs, the opposing council has said, well, they didn't say there's someone over some right to a wheelchair, but let's take that example. Is it objectively unreasonable? Is it objectively reasonable that it took Dr. McVase more than a couple of months ultimately to make the referral he promised and that my client didn't get a wheelchair until February 2013? I see, I don't know that Dr. McVase could go get the wheelchair. I mean, I don't think Dr. McVase has to reach you to his own pocket by a wheelchair. So that's what I think. I think that's the right thing. I see, but I do think that what we have here, and bear in mind, you know that my client is mute, normally at a spears hearing, a prisoner has an opportunity to fully articulate his claims and the court can hear that and take that into consideration. The spears hearing in this case was very difficult by all accounts because my client had to hear the court through the telephone and then write his responses to the court's questions down and then someone had to communicate that back to the court. And I think what we're dealing with here is a less than full picture, but there's enough that if you even reach this second issue, which I don't think you should, you could find that the facts that exist support deliberate indifference and we should go back to the district court and develop this. I would, in closing, just say that I think a case that can guide you here is Easter V Powell. In that case, and that's a case from the circuit, the prisoner had a heart condition for which he had been prescribed nitric glycerin. And one night he wakes up and he's having severe chest pains and he goes down to the duty nurse and says, you know, I'm suffering, can you help me? And she did not ignore him. You don't have to ignore him. You don't have to prove that the defendant's ignored you. She did not ignore him. She took his blood pressure and she sent him to the pharmacy. Well, he gets to the pharmacy and the pharmacy's closed. So he goes back to the nurse and he says, you know, the pharmacy's closed or really needs something. And she said, oh, you're being argumentative. And so she had him sent back to his jail cell. Actually, she had him carried back. And he gets there and for the next four hours, he suffers excruciating pain to the point that he alleged that a blood vessel burst in his left eye. The next morning he got up, he received the nitric glycerin, he felt better. But he sued over that four hours of pain and suffering
. So that's what I think. I think that's the right thing. I see, but I do think that what we have here, and bear in mind, you know that my client is mute, normally at a spears hearing, a prisoner has an opportunity to fully articulate his claims and the court can hear that and take that into consideration. The spears hearing in this case was very difficult by all accounts because my client had to hear the court through the telephone and then write his responses to the court's questions down and then someone had to communicate that back to the court. And I think what we're dealing with here is a less than full picture, but there's enough that if you even reach this second issue, which I don't think you should, you could find that the facts that exist support deliberate indifference and we should go back to the district court and develop this. I would, in closing, just say that I think a case that can guide you here is Easter V Powell. In that case, and that's a case from the circuit, the prisoner had a heart condition for which he had been prescribed nitric glycerin. And one night he wakes up and he's having severe chest pains and he goes down to the duty nurse and says, you know, I'm suffering, can you help me? And she did not ignore him. You don't have to ignore him. You don't have to prove that the defendant's ignored you. She did not ignore him. She took his blood pressure and she sent him to the pharmacy. Well, he gets to the pharmacy and the pharmacy's closed. So he goes back to the nurse and he says, you know, the pharmacy's closed or really needs something. And she said, oh, you're being argumentative. And so she had him sent back to his jail cell. Actually, she had him carried back. And he gets there and for the next four hours, he suffers excruciating pain to the point that he alleged that a blood vessel burst in his left eye. The next morning he got up, he received the nitric glycerin, he felt better. But he sued over that four hours of pain and suffering. And she filed a nurse filed a motion for qualified immunity like the defendant's here and said, oh, he's just disputing the course of treatment. He's just complaining about this delay. He can't recover for that. And this court disagreed. This court said, no, he had a serious medical need. He had a constitutional right to attention for that. And he clearly stated and ate the memo violation with regard to the severe chest pain he suffered during the period of time, that's that four hours, the nurse refused to treat him. And I think under Easter v. Powell, my client certainly has a right to recover against defendants for his pain and suffering too. Thank you, Ms. Mills. Ms. Glazer, you saved time for your battle. Really quickly, we had no idea Mr. Thomas had been released. His release date was supposed to be in March. I had no idea he was out. So I'm sorry about that. They didn't call me. Anyway, jurisdiction
. And she filed a nurse filed a motion for qualified immunity like the defendant's here and said, oh, he's just disputing the course of treatment. He's just complaining about this delay. He can't recover for that. And this court disagreed. This court said, no, he had a serious medical need. He had a constitutional right to attention for that. And he clearly stated and ate the memo violation with regard to the severe chest pain he suffered during the period of time, that's that four hours, the nurse refused to treat him. And I think under Easter v. Powell, my client certainly has a right to recover against defendants for his pain and suffering too. Thank you, Ms. Mills. Ms. Glazer, you saved time for your battle. Really quickly, we had no idea Mr. Thomas had been released. His release date was supposed to be in March. I had no idea he was out. So I'm sorry about that. They didn't call me. Anyway, jurisdiction. An insufficiency of evidence in the record, which was not very specific to the court didn't specify what insufficiencies there were. She suggested that the defendants bear the burden of producing evidence to prove that they did not act with deliberate indifference, which is contrary to precedent. But where are the defendants in possession of the only evidence? In other words, medical records of the prison treatment or whatever, I think just basic rules of discovery and so forth are that you can't say, well, I'm not going to give you any medical records, but you better prove what we did. I mean, I don't think you can have it both ways on that. The medical records have been produced. But he's saying there's deficiencies in them or something missing. That's the first time hearing of it. He filed a complaint, an amended complaint, a response order, a Watson question to a Watson questionnaire, and the Spheres hearing in addition to opposing the MSJ and objecting to the report and recommendation. And this is the first time hearing of missing pages from the medical record that apparently he had to give to his lawyer. I don't understand, and I also don't know what they say. But if there are additional pages missing from the medical record, that means that there's additional treatment that was done. I mean, when there's an absolute... I don't know the record could be him scribbling a note, I'm in pain and her scribbling back too bad. And that could be missing document, and I'm not sure that would help you. But I think Mr. Thomas could certainly have written that down. I mean, he would have been present when that happened, and it didn't. That's not what he's claiming
. An insufficiency of evidence in the record, which was not very specific to the court didn't specify what insufficiencies there were. She suggested that the defendants bear the burden of producing evidence to prove that they did not act with deliberate indifference, which is contrary to precedent. But where are the defendants in possession of the only evidence? In other words, medical records of the prison treatment or whatever, I think just basic rules of discovery and so forth are that you can't say, well, I'm not going to give you any medical records, but you better prove what we did. I mean, I don't think you can have it both ways on that. The medical records have been produced. But he's saying there's deficiencies in them or something missing. That's the first time hearing of it. He filed a complaint, an amended complaint, a response order, a Watson question to a Watson questionnaire, and the Spheres hearing in addition to opposing the MSJ and objecting to the report and recommendation. And this is the first time hearing of missing pages from the medical record that apparently he had to give to his lawyer. I don't understand, and I also don't know what they say. But if there are additional pages missing from the medical record, that means that there's additional treatment that was done. I mean, when there's an absolute... I don't know the record could be him scribbling a note, I'm in pain and her scribbling back too bad. And that could be missing document, and I'm not sure that would help you. But I think Mr. Thomas could certainly have written that down. I mean, he would have been present when that happened, and it didn't. That's not what he's claiming. That's never been what he's claiming. He's claiming that in 2009, two years before his conviction, he had been scheduled for PIP surgery at Elishew. It has never been proven that's just the claim it's been accepted. He was on a waiting list for surgery. He didn't get it. He got arrested for John Driving. He went to jail. He wanted the surgery. That's it. That's all he ever wanted. That's what the magistrate judge determined. And then the district judge says, well, yeah, if that's what he wanted, he wouldn't have a claim. Because a lot doesn't support that we have to give inmates' surgery. That's not medically necessary according to the surgeons. And she said the current impediment to surgery are the surgeons. Not these defendants. And what is your analysis of this issue of pain? You have to do something about the pain. Is it enough to just put them on pain meds and not address the source of the pain? Is that acceptable? That's not all they did. That's how my question went. Is that acceptable? I think that it would depend on the situation
. That's never been what he's claiming. He's claiming that in 2009, two years before his conviction, he had been scheduled for PIP surgery at Elishew. It has never been proven that's just the claim it's been accepted. He was on a waiting list for surgery. He didn't get it. He got arrested for John Driving. He went to jail. He wanted the surgery. That's it. That's all he ever wanted. That's what the magistrate judge determined. And then the district judge says, well, yeah, if that's what he wanted, he wouldn't have a claim. Because a lot doesn't support that we have to give inmates' surgery. That's not medically necessary according to the surgeons. And she said the current impediment to surgery are the surgeons. Not these defendants. And what is your analysis of this issue of pain? You have to do something about the pain. Is it enough to just put them on pain meds and not address the source of the pain? Is that acceptable? That's not all they did. That's how my question went. Is that acceptable? I think that it would depend on the situation. As a matter of law, addressing pain with pain medication is not ignoring or intentionally mistreating the condition, which would thus make it not deliberate in difference. If they intentionally gave him pain medicine, he was allergic to. So we didn't take it. That's not what happened. I mean, he had pain medicine. He had a walker, a cane, a wheelchair. The wheelchair, by the way, in February that he didn't get to February. I don't know why that happened, but there's no allegation that Casey McVeigh prescribed him a wheelchair and then withheld it. The problem is, in a lot of these cases, the thing that the person wants, that doctor isn't required to pay for. So he puts in his form and some other person and some desk somewhere is the one who has to fill it and it just takes months and whatever. And I agree with you. That's not the doctor's problem, but what about this delay to October of making the referral at all? That would seem to be within the doctor's room. It's in our brief. He saw the referral was in October. He saw the orthopedist via telomad in November. Yeah, but she's saying that the referral should have been made in July. So what's your answer to those couple of months? I don't know. But there's no allegation that it wasn't that it was any of the defendants. But even if it was, so what? I mean, I hate to sound cady, but as a matter of law, the delay in treatment has to cause significant injury. The delay in referral to the orthopedic surgeon who over and over and over says we're not going to operate
. They keep saying the same thing. There's no significant injury. Thus as a matter of law, there's no constitutional violation. All right. Thank you. Thank you. All today's cases are under submission and the court is in recess