good morning and may it please the court my name is jacqueline green and i along with attorney terry gilbert represent the appellant mr cameron nor in this matter judge clay i'd like to reserve three minutes or rebuttal please thank you this case is about a twenty year old kid who was in the custody of cuyahoga county in their jail he alternately suffered a stroke and an aneurism due to untreated endocarditis leading to months in the hospital and a long rehabilitation he still has permanent disability on his left side as a result of this untreated condition this happened because the county jails medical system both with respect to medical staff and correctional staff and the practices the customs and the training in the jail was designed and carried out in such a way that it was predictably set up to fail and to violate constitutional rights in cases like cameron north's this court should reverse the decision of the district court and a grant of summary judgment to the county for three reasons first the district court erred in finding that the mono claim against the county failed automatically simply because the court held that the two named defendants were only negligent off failing to account for the constitutional violations by many other county actors secondly a constitutional violation did in fact occur here as a result of the county's systemic deliberate indifference to constitutionally adequate delivery of medical care to inmates as a result of the constitutional violations by unnamed defendants in this case and as a result of constitutional violations committed by a nurse practitioner all of it and nurse claque as well and third the county was indeed the moving force behind a constitutional violations suffered by cameron north the court in this case did not view the evidence in a light most favorable to the nonmoving party as is required and a large body of evidence in this case does show this widespread systematic set of county customs and policies and practices that gave rise to a mess of a health care system for inmates generally and specifically in the case of cameron north the county has yet to counter this evidence in its briefing at summary judgment and in it before this court and the the district court simply did not address this broader body of evidence and its decision there are disputed material facts and cameron north is entitled to have a jury hear his case against the county at trial so turning first to the facts of what happened to cameron north in this case he was in jail in february two thousand and thirteen as a result of when he first showed up over the first few months there were some medical issues that arose but the key period of time really comes down to around may seventh or eighth through may thirteenth when he had the stroke before may eighth some time before this he testified cameron testified that he did indeed request to go to the medical unit to correctional officers he submitted to or the earlier claims do you concede that the more claims perhaps or time borrowed we do not concede that any of the claims actually in this case leading up to the point of the stroke are time barred and plaintiff has always maintained a position first of all that of course whatever happened may twelfth or thirteenth is totally clear but anything that happened before that is also safe and the reason for that is that the  doctrine be continued violation doctrine as well as the discovery rule apply here so first of the discovery rule cameron was a twenty year old kid he was not sufficiently capable of acknowledging or recognizing in himself serious medical issues in need of attention and under the discovery rule until his stroke then the claim would not have accrued at the point that he would have discovered that he had a cause of action under the continuing violation doctrine everything that happens before the may twelfth anniversary filing date of this case continues and violation exists if the defendants in gauging continuing wrongful conduct the injury to the plaintiff accrues continuously and had defendants at any time seized their own full conduct for their injury would have been avoided and we know in this case per dr mendel's expert report that in fact the big thing here is this testing that was supposed to have been done it was ordered on may eighth it was never completed had the testing bend done cameron north would have been sent to a hospital and the testing the testing would revealed information that would have required and ended up with a further evaluation an opportunity for treatment but he was deprived of that opportunity repeatedly and by actors throughout the jail argument we have not judge our position has always been that in fact the statute of limitations was not an issue here and the county did raise it as a defense but also met lee this case is all about a constitutional violation that happened  and well it's not time for that a minimum from a twelfth and thirteenth we're clear on that that is and then there was a continuing course of conduct that existed on may twelfth and thirteenth where camera north was continuously deprived of care and that is within the period of time that you know fell within the statute of limitations so that is absolutely fine now that claim in your opening brief yes we do we talk about the whole period of time that may eighth through thirteenth period  we dealt with a whole load of conduct by many many other actors leading up until that point in time the district court in address those individuals didn't address their conduct on may eighth through may thirteenth or any period before that and because we're talking about this broader set of evidence than just those two individuals we are safe and within certainly at least that may twelfth and thirteenth period but under her in which is a seventh circuit case but illustrates the continuing  doctrine well there's this concept that the i'm going to treat a medical condition as a continuum violation when it would be unreasonable to require or even permit a plaintiff to sue separately over every is an incident of the defendant's unlawful conduct and that's what we have here in this case cameron north made multiple requests to correctional officers they did nothing they knew about this over a period of days they continued to do nothing he can't bring a claim in the period this begins before may eighth and continues all the way through may thirteenth because on may twelfth and thirteenth for example cameron north is not working he's in the trusty pod not going to his job the correctional officers are aware every day there is a call down and logs that we have there are calls from the medical unit the correctional officers saying cameron can't go to work today due to medical issue he testified that he was talking to these correctional officers about his need to get blood test and that no one was then calling to send him to the medical unit he was talking about his pain no one was calling to the medical unit on behalf of him for that and so within that may twelve thirteen period that's the medical staff we also are sorry the correctional staff we also have in that period and before this this situation with medical staff  it is clearly established a test that has been ordered treatment that has been deemed necessary by a physician if it's not provided and not provided in a timely manner then a constitutional violation has occurred and in fact this testing never happens  on may ninth how do you respond to the calling that he hid his illness and that he said i don't i don't need treatment or at least at the pressure of the earlier mark to once he he didn't want to be treated well he was fearful initially of losing his trustee status and the danger in the jail that that might expose him to a general population when it's your position that he moved away from it and then began to see that medical care that was there not provided continually for so his fear is evident throughout the phone calls in this case but also his interest in treatment is clear he testifies that in advance of may eighth begins asking for medical care and sends a kite and in addition to that he then  has had this care order doesn't get it continually talks to correctional officers they're joking about it the discontinuation of his trustee status sending him to the general population with the notoriously violent prison gang the heartless felons but he does express clearly to people that he needs care he wants care and in fact the medical unit is aware that he needs care and what's the most powerful evidence in support of that is not only a nurse for all of which is order on may eighth but also on may tenth and i mean we can assume that sometime between the night of may ninth in the morning of may tenth but due to the phone call i'm assuming it's the morning of may tenth that cameron nurse talks sorry karen north talks to a nurse she comes down in the kitchen he's working there it's in front of a c e o and she says to him you know essentially what's going on here why is your mother calling he at that point tries to tell her and this is his statement repeatedly i tried i tried i tried to say i don't need treatment but she said we think it's something serious and he said i couldn't talk the lady out of it he tried he wasn't able to the county has the duty here they knew the medical unit knew on a continuing basis may eighth at the time the test was ordered continue into may tenth when this nurse we more than one person in the medical unit knows that there's a serious medical issue the tell in order is outstanding through this entire time and no one does anything that nurse who came to your business case to show the hit this rises from the level just absolute inadequate care was provided and the need for treatment is obvious and the care is so cursory as to amount to no treatment at all which is what he got in this case he got ibuprofen it's akin to no treatment at all it's a constitutional violation we also know the principle that failure to conduct tests that a prisoner's symptoms call for rises to the level of deliberate indifference and there's case law on that in this circuit and across the circuits establishing that principle now very clearly happened here and continued over that five day period every single hour of every single day to fill your conduct those tests could also constitute an interruption of a prescribed treatment plan here he has been prescribed a testing it doesn't happen as is also an established constitutional principle in this circuit und the record you believe was responsible for assuring the tastes were actually performed well this is the ultimate challenge of the cases that cameron north fall victim to a web of deliberate indifference in the jail correctional officers didn't report complaints the warden knew that this problem existed and did nothing about it there was a policy a custom a sanction custom of this we know in fact that in the medical unit itself the nurse practitioner the director of nursing all the nurses nobody knew  responsibility it was to make sure testing actually got done there is no system in place this is one of the customs of the county at play here where the buck stops nowhere it's always somebody else's problem not mine and inmates inevitably are going to there is no continuing violation here and simply because they claim it is without any evidence backing that up doesn't make it a continuing violation while the there the evidence that they say is on my right the treating physician or the treating nurse well there is evidence also that the appellate in this case refused care to give there is preliminarily but nowhere it the guys waiting for the test and he tells his mother and grandmother they're go come get me today i think that was my nine and they're going to give me the test and then we'll know what's wrong and nobody can and then he asked the guards and the guards are supposed to be on the lookout for the people who are supposed to calling to be tested in these not call so that i agree with you that earlier things problematic is discrete act but when you began don't you have an ongoing failure to perform the very tail state the they were ever done right well the question is whether or not he was sent down there and actually refused to be further treatment if you have records that always show when there's a refusal treatment he had to sign that earlier there's no refusal of treatment from the forward that i've seen in seventh right march twenty seventh he signed it and said he didn't want to do it but we're now it may right and also we also have the evidence of his jail calls where he's telling his mom look i'm going to do a ruse here i'm telling them specifically my arm  hurt i don't have any pain here because he wants to keep his trustee status again my friend on the other side says that's because he doesn't want to be put in the general population but there is after his deposition testimony says he wanted to be a trustee so he could have the extra food portions and the attending privileges that came with the to be a trustee so beyond the stench limitation problems which i think judge culture completely hit correctly there was extensive briefing on stanch limitations both when this case started and the summary judgment stage and it's our position simply that they didn't meet that to get beyond a statue imitations before they even start to push the boulder up the hill of deliberate indifference but beyond the statue of limitations i've never seen a case like this one where they have simply jettisoned the individual defendants on appeal and attempted to go against the municipality like my friends on the other side are doing in this case because what that is is essentially a dodge of the qualified immunity analysis that the judge grants you call personnel cases and then there's the most harm that are policy and custom and then it's al kiri garner that preceded all of this that's long been case law in this in this circuit and in those cases the rule is you have to have a policy it has to be connected to that entity and it has to have caused harm and isn't that the basis of the claim here it's a claim that just doesn't  is taken three pages of briefing at the summary judgment stage before the trial court on the municipality claim and we've expanded that now to focus soley before this court thirteen thousand words actually more if you can consider the reply br w the court did it was presented it was presented but it wasn't presented we believe in the in the opening brief is as judge larson indicated so the way the doctor is also in play here too so are you talking about the statute of limitations are you talking about  male the mono claim with respect to the qualified immunity issue i know my my friends on the other side want to solely say the qualified immunity can be applied to the county but my response to that is simply when you have these factual findings and often times on appeal somebody that is seeking to prove deliberate indifference has to show both a significantly serious medical need and has to show that the actors are sufficiently culpable and we don't think the mr north has is prove either of those with respect to the sufficiently serious medical need this isn't a broken bone case this this is a blood disorder case that mr north had because he is a drug has any sort of cancer or something that's internal it can't be determined and frankly when he was evaluated he said no i'm fine my arm hurt before my know my mom's calling you guys in and trying to raise a fuss but  you know i'm fine don't don't put me on my trustee status because i want the privileges that i get with that so number one if it doesn't meet the sufficiently serious because officially serious needs to be something that is diagnosed by a doctor that's not that wasn't happened here or to is indicates that she dissuaded him from from being seen or raising additional issues that he might have again the evidence in the record indicates that he did everything he possibly could to to lie to the jail staff and to try to minimize any sort of health issues that he might have so getting back to the arrington bay cases as you were talking judge trance in arrington bay the person that died had a a mental issue in this case there's there's nothing in the record that indicates mr mr north had any sort of mental issues and i know my my friend on the other side keeps referring to him as a kid he was he was over the age of eighteen he was twenty years old he's an adult under our laws of this nation and he's he's deemed competent to if he has a problem with his health to bring those forward this court has said in the pike case that prison officials do not have to be mind readers and that's exactly what might the case is asking my client to do is to to read mine and look into their crystal ball and somehow determine that even though he's saying i don't have anything wrong with me that in fact he does have something wrong with him and he should be sent for further evaluation that's that's not the state of the law there is no law he was at that fair argument but if he was and the doctor said i think we need a blood test and i think we need to your analysis then the doctors indicated that there is concern and then what what type of response is it if the jail does not ever give him the tests that have been ordered by physician it doesn't rise to deliberate indifference when isn't doesn't the records show that he had had asked them about when they were going to come in and giving the blood test my read of the record does not indicate that he was asking the ceo's about when they were going to give him this blood test of the record i believe he was indicating that i didn't i was doing everything i possibly can not to go to medical so if some point there's no question that i think the timing is the issue because i think the main  morena here's evidence that he was a asking when the blood test would come i'm sure and so the question becomes if if a doctor or physic physician's assistant has said that there is sufficient concern to order these tests and then no one does it what level does that rise to again not what cases do you have that would show that that doesn't rise to deliberate indifference as the one i've been mentioning to that my friends on the other side were  here on i think is a perfect example of that that does not arise to deliberate indifference it's simply negligence at worst which is what judge poster said below and that doesn't arise to an eighth amendment violation or fourteenth amendment violation and keep in mind this eighth amendment fourteenth amendment duty arises out of the eighth amendments prohibition against cruel and unusual punishment that's what we're talking about here and that was expanded to preach child detainees as which mr north was here it is not cruel or unusual for the county to take an inmate it is word that he does not need care it simply doesn't rise to that level that's a huge burden and it's one that frequently cruel or unusual to say i think there's something wrong with you and i'm going to want to get a blood test and be your analysis and then to never do that again i thought i'd died push back at the fact that there was never done a what i would i do know do you have anything in evidence that shows that a blood test wasn't well and what we do know is maybe he was sent down there and said no i don't want it that's that's my point we have these g a problem is then he would have signed like you did before the nurse said ok you don't want to sign the form and he didn't and so that's not in the record well again that's that's again charging negligence had best judged ranch that's that's what we have until that's the question and your best case you think is arrington bye bye and i think arrington based clearly shows that that that doesn't rise to deliberate indifference when we have somebody that is impaired that is that is mentally in psychosis that is is still we this court still found that there was qualified immunity as to those jailers i don't think what we have here arises to even close to what the facts and circumstances were in the arrington bay case and with that i would simply say that there is no clearly established law that would put my clients on notice that their actions violated the constitution and again this supreme court of the united states has indicated on numerous occasions within the past year or two years that that's a requirement that you know needs to be needs to be there needs to be either a binding case or a sufficient body of consensus of authority that would put my client on notice that their their actions would violate the united states constitution and that just did not happen in this case so with that if there are no further questions before the court i would ask that you affirm judge posters decision and find that  policies and practices were submitted in the record we had a deposition of their expert who it's my understanding did not opine is to deficiencies to my client's policies and procedures what he focused his  deposition on we thought that they weren't followed and then that goes to again the individual defendants and not necessarily the county's policies and practices as a whole i just don't see anything that would indicate a mono policies and practices or failure to train obligation here at bottom the judge determine there was no constitutional violation in this case and that ends any sort of corporate liability once it's determined there is no constitutional violation all right thank you thank you  thank you first the judge the trial judge did not the term that there was no constitutional violation he just found that nurses claque a nurse practitioner didn't engage in a constitutional violation second the errington bay case does not apply here at all the issue in arrington bay was access to mental health care he did not receive that care in a nine hour period here we're talking about five days many nine years over and over and in that case there also were no orders from any medical provider about what should or shouldn't be done there is no failure to carry out ordered care so that case doesn't apply and then to the whole big issue here it's not up to cameron north to force the county to provide constitutionally adequate care that is beyond any realm of his possible if the county's duty to ensure that they provide adequate care and they fail to train their folks first for the guard to the correctional staff they fail to train them on inmate access to care there were no manuals given or there was no periodic review correctional staff are on the front lines of inmate interaction and observation and there are going to be inmates who can't for whatever reason or won't talk about their medical needs correctional officers need to have training on this dr mental talked about that there was none and there are a number of cases that talk about that failure to train on that issue as being a constitutional violation same with regard to medical staff there was no training on constitutionally adequate medical care provision a great case with a wonderful quote about this is shattered three halfpence county that talks about how unless a player provides the necessary and necessary training nurses lack of knowledge about constitutional consequences of their actions or inactions and finds ultimately that this gives rise to deliberate indifferen and then the county also had a number of cost difference between chadwick and the system in that there was some sort of an initial training period in the health care providers were not just he was a nurse practitioner well in this case that nurse practitioner never even received a manual of the policies for the jail so he had no training specific to the correctional setting the nurses the nurse and also the two week period at the beginning he was in some of them had the opata training many of them did not there was in consistencies they didn't have follow training and there are multiple customs at play first the buck stops nowhere problem secondly the correctional officers as gatekeepers to medical care who are non medically trained personnel making decisions about whether someone has access to medical care is another custom that's unconstitutional the medical record system in this case was and i'm sorry your time's about up but i need to get in another question so people and the district court didn't address them all but tell me who was the person who did something that your client did not know about before may ninth that's what i can figure out the district court said may ninth  and for all of the conduct of its agents that fall under that umbrella and then all of the individuals who were not named in this in the suit the judge made no finding about whether or not those claims were time barred with regard to the correctional officers have to show me why it's not time of the other actors at play here and so we responded to that in our reply brief and again the trial court always found that at least may twelfth and thirteenth were in the safe harbor and the days leading up to that you know with regard to  perhaps not and obviously that's at the trial court found our position has always been that that was not the case but for everybody else that was not named the judge did not make a finding with regard to them and so i guess if i can take just a moment to briefly close in short  north's case involves constitutional violations committed both by specific people as well as massive systemic problems in the cuyahoga county jail that inevitably were going to lead to constitutional violations in the provision of inmate health care and the district court erred  to the county for the reasons discussed here today and in the briefs we ask that you reverse the trial court thank you thank you very much of the mood