thank you your honor may it please the court in this case a plaintiff who has already been made whole by a settlement agreement with responsible parties is now armed with only conclusory allegations of deliberat indifference and is pointing the finger at four corrections officials who were so walled off from decisions affecting inmate dental care and so without the ability to affect the plaintiff's dental care particular that their conduct could not have risen to the where he was incarcerated had a dentist vacancy he complained of tooth pain horizon health a private health services company had exclusive responsibility for inmate dental care under a contract with a d c negotiated  very similar to the procedural posture here where there was a motion to reconsider filed subsequent to new authority and it was it was held there motion to reconsider the original motion but it is that in fact from substance with new motion for qualified immunity yes your honor this is this is a request for qualified immunity at the issue of qualified immunity that's correct ok thank you thank you the plaintiff's for his part has made three only three not conclusory allegations who was responsible for scheduling dental appointments but in the plaintiff's words was unable to carry out her duties due to her advanced age and to a misdemeanor pointman in early september twenty third team the defendants who remain are not medical staff but corrections officials they're entitled qualified immunity for several reasons but i want to focus on three first none of the a d c defendants were aware that the plaintiffs had an unmet need for dental care so first none of the a d c define us were aware that the plaintiff had an unmet need for medical care this was not a situation where it would have been obvious to a light person that there was a serious in any inmate make requests for medical for dental assistant health officials the defendants here didn't receive the notices know the defendants here never received any any sick call request they never reviewed any of the medical grievances that were filed they never saw any of those grievances so we're told that the plaintiffs claims can be checked against an objective record there are contradicted by that record although the plaintiffs claim that his face was the big disfigured from swelling that he had and that he lost weight because he couldn't eat the record is not consistent with these clams first and when those be fact matters that would be not something the resolve on the qualified immunity been reviewing the medical records but even even had they done so the objective medical records do not reflect a serious medical need in this case therefore the a d c defendants could not have had awareness of facts indicating a what's the impact of our color versus baldwin case which seems to have some similarities to this one yes your honor and i'm happy to erin and penal institution yes your honor i'm happy to dental shortage was not the product of an i wish state prison penitentiary prison officials conduct that those prison officials were entitled to qualified immunity from deliberate indifference climbs the instant case is more similar to call the baldwin it's more factually and legally analogous to that case than it is to any other case in color it seems that the court really focused on the evidence that showed the prison really did take some steps to try to get dentists and they were recruiting they were it was testimony that they were offering the highest salary rate that they could and that they were really putting forth a good effort is that is that the same here it concerning the status of dental care and he knew as of june twenty fifth that that cries in health was interviewing a dentist at that time he also knew that  jurado that the dentist i believe you're referring to is dr lerner russell who was a full time dentist at the cummins unit and cries in health had missed had dr russell go to the varner unit two days a week to provide dental care to inmates at the bar you well know requires three things you must have knowledge of facts from which it could be inferred that a serious medical need exists you must draw that inference and third one must deliberately disregard that made here the first does not matter there is no evidence that the defendants had knowledge of facts indicating that there was any unaddressed insufficiency in the dental care made available to garner unit inmates so they could not have been deliberately indifferent your honor cries and help staff who were medically trained and had the relevant expertise did not determine at any time that there was a serious health condition that needed to be addressed and corrections officials being medically untrained did not have the expertise to expertise to respond to those grievances at the unit level but the defendants never saw any of those grievances were they did they have to be signed by an a prison official no your honor they were signed by cries and health employees and wendy kelly director oh yes your honor and that is that was where i was i was about to go on the appeal so everything that i've mentioned so far is at the agreements at the unit level there was an appeal to a d c administration again that would take the grievance out of the unit to a d c central office where generally the director the deputy director for health unit to implement a performance review plan me a performance improvement plan problem or concern and dental clerk see selby replied on aug fifteenth that the unit does have a quality improvement process in effect so the a b c had implemented a quality improvement plan it had done what it could do  what it could not do was to force cries of health to fill a dental vacancy were there were no dentists but and i don't want to take up all of your rebuttal but just one question i had you say in your brief you're not trying to immunize the by itself without looking at any other facts that alone does not immunize the i d c defendants from liability in this case we have to go beyond and look at the actual situation as it existed to determine whether or not  year to get a dentist in this particular unit and they were sued their case was dismissed dismissed and if in about this court based on the acceptance of the the evidence that the corrections officials had behaved reasonably dentist this case is factually different from that the defendants here the remaining defendants in this case are the warden the assistant warden the chief of security and the assistant chief of security at the  their deliberate indifference was predicated on is their management this situation their unit was without a dentist for early june to light september which you speak more specifically to what was the conduct of these defendants that demonstrate deliberate indifference and since the condition was certainly regrettable for anyone to have to suffer with periodontal disease but condition serious medical condition it was causing him pain he couldn't go to the dentist because there was no dentist he saw the prison nurse who gave him pain medication he extracted two of his teeth during this three and a half month period that they were without a dentist when he finally saw all the dentist on i think it was september the twenty nine did not remember correctly seven of his teeth were then extracted by the dentist so i think we certainly have at the very minimum a fact question as to whether we have a serious medical  this case dental condition if that speaks to your question well and what what case what analogous prior case shows that the facts here constitute a deliberate indifference but it cannot give litigation and i can't find that the idea of the lack of deprivation the delay of proper dental treatment is well established in the law the color case certainly establishes that as hundred nine where the delay of the denali deprivation of proper dental services can form the basis of deliberate indifference in this is somewhat of a unique case in the sense that i would love to be able to provide you with a case where  some correctional officer was sued under this and some other state but but that's that's not here what we are standing own is the eighth amendment right to proper dental care in these types of circumstances for an inmate  the defendants here your honors our senior corrections officers they are wharton they are an assistant warden they are the chief of security and they are the assistant chief of security these are experienced correctional profession professionals they would be well aware that it would be their responsibility to do to manage this situation but what about the evidence that they were bringing this dr russell from another unit that they were making efforts to result of that was he was well aware that there wasn't a dentist in his unit he's a warden he would know that anyway but but it's certainly on the record in his declaration that he knew that that he was receiving regular updates from horizon about this situation and that speaks to the fact that this was a serious situation and at the end of the day the end in terms of his management of these defendants managements of that situation generally and as it relates to this defendant particularly are in the record but what we don't have is the warden in his in his declaration stated that he was receiving updates from caracas and what we don't have is that any action being taken on behalf of the c there was not inquiry as to how are we handling emergencies what happens to someone when the dentist isn't here the greatest grievance process was was mentioned and  through the system and go to the appeal and that goes to the central office the matter is resolved because september twenty ninth comes and goes in the seventy third or finally extracted there's no evidence that the a d c officials to in particular warden watson of the assistant ward they made inquiry of kharaj and since horizon was to receive the grave and says you know are we getting great answers you know or do we have people out here are the inmates that we're responsible for are they having a problem or are they grading this problem there's no indication that there was an inquiry there's no indication that there was a response by the warden by the assistant warden that you know we the in the commons unit is right down the road just two miles away and there's a dentist like you know what not this the warden wasn't charged with responsibly harn the dentist the assistant warden the security officers they were responsible with managing this situation they knew they didn't have  dentist in their own inquiry in so therefore they were aware of facts that put them on notice that a problem could exist and they didn't take any effort beyond that and the record to the point of alleges that he personally told the bolden and malone or the security officer of the assistant security officer he of course couldn't personally tell the warden because he didn't have the mandate a trial as the magistrate judge found in his recommendation is there was nothing about the motion to reconsider that offered any reason that would be reasonable conduct on behalf of the defendant that would cause him to change his mind and that was the position the judge moody ultimately adopted a couple of weeks later just do you read the motion to consider is focused entirely on color a change of law that's what's cited as the basis get is our beliefs that this is not a particularly complex matter or a particularly close question we think that the plaintiff had an obvious medical or dental problem shortly a fact question as to that we think that he could to bring this to the attention of the authorities through the grievance process while receiving regular updates on this situation which i think speaks to the importance of it there is no evidence in the warden's declaration that he took any action what's that attempt to match that it's not discuss what's the implication of the magistrate's conclusion that there was a failure to come to pursue administrative remedies here one or more of his grievances were actually up held by the central office and i think it's it's also an important fact in this case that once the central office reviewed that that he was fired as is was mentioned by counsel a performance improvement plan in pro and email and that got sent back to to the very defendants that remain in this case and and we think that is an important factor that there are fact questions here this they are and their lack of a response to that it is the law as operation stated that deliberate indifference can include ignorance or ignorance and when the warden knows he's got a problem and he makes no inquiry as to how is this being played out among my inmates are my guys in trouble how are we handling emergencies is anybody what can we what can i as the warden what you know as the assistant warden do to assist horizon in this difficult situation if we have an emergency if we have a guy there's a dentist two miles away what can we do to facilitate but we have many people who are grieving that their needs are not being met and to new wall yourself off was that was a term used earlier that's just not a defense in this case they knew they had a problem and they based on the evidence that we have made no effort to determine the extent of that problem they ended up with a performance improvement plan at the end of it back in the central office meanwhile my guy m plaintiff went through four months without a dentist during that period of time he extracted two of his own teeth and when he finally saw the dentist he had seventy three extracted and we think that there or there are ample reasons for there to be fact questions that exist moment but they were wrong in that but suppose a reasonably believed that they were simply helpless so they were not because of anything they did they were helpless because they were walled off and warden the assistant warden was warden hard innes but they do manage their department they know that they're inmates are entitled to reasonable dental services particularly in circumstances where we've got an inmate losing eat but they knew they didn't have a dentist and they made no effort to determine that no discernible effort to determine how this was playing out these this story and a half month period how it was playing out in the lives of their inmate so if they if they drew that conclusion it was it was not based on any effort to learn any fact whatsoever and therefore i would would reject that that could have been a good faith conclusion there's nothing further thank the court for your attention just a couple further things to the point of has not even alleged that he showed or described any serious symptom to any of the a d c defendants all he has done is to the law was clearly established and i would even point that color is even more similar to the facts here because in color the defendants in color were custody ends of the inmate and this court found that they the defendants were entitled to qualified immunity in that case so i would request that the court reverse grant the defendant's request for qualified immunity