the central question in this case is this how much pain is a prisoner required to endure before the eighth amendment requires prison officials to treat it the defendants here take the position that they can require a prisoner patient to live with chronic and substantial pain even if there is a common readily available medical procedure to alleviate it unless the condition is life threatening or so severe the pain is so severe that it prevents the patient from doing basic like activities like getting to meals dressing him self they think that sort of thing but many many people live with pain rather than on the go surgery particularly when the surgery is o fluctuated it got better and then it got worse again it never resolved and to this day despite the ongoing pain defendants are refusing to treat it now this is not a case where mr ham he's treating providers said you know i think the pain is tolerable and you can live with this this is a case where the treating providers recommended or requested a surgical console because over the course of two years they had tried several conservative right that's right so there were talking about some over the dispute is over some period of delay between the time that's you think or plaintive claims noted the ongoing pain and the failure of conservative treatment and asked for permission to refer mr hamby to the searching for a console to dr smith denied it now she didn't deny it because or at least there's nothing in the record or in her testimony she did not tonight because she did not believe that mr hand his pain was not a severe if she said she denied it because she said she did not think it met the requirements of the offender health plan she also said it was because the hernia was not incarcerated not life threatening and because he was still able to do his activities of daily living in fact that's not even the standard in the offender health plan under the offend health plan a medical proposed medical intervention should be approved if it is necessary to relieve intractable pain but insofar as a violation of constitutional requirement that's true your honor and it's also true that the defendant's compliance with the offender health plan they maintain that they were complying with the under health plan that does not necessarily mean that they complied with the constitutional standard chronic significant pain as a result of certainly the umbilical hernia but then he was treated for that in the prison yes your honor and for a condition like a hernia there's a continuum of care and so at the beginning when hernias first diagnose a medical provider my provide conservative treatment such as a hernia belt or recommendations to reduce activities or stool softener and then they see if that alleviates the pain and then  over time the patient comes back and says that's not working that's not alleviating the pain and then they try something else when it got to the point that all of the conservative treatment measures had failed at that point the only no one treatment option to address mr happy spain was referral to a surgeon they didn't offer any alternative to alleviate the pain the only alternative they offered is we'll keep monitoring it and if it becomes life threatening or if you are unable to do your ranging from watchful waiting or some modest measure to where they go to surgery some cases under their policy they authorize the surgery right away  like it was incarcerated or whatever and could lead to strangulation and other cases they don't automatically authorize goes to their review panel how much pain or how long does someone have to pay you for non treatment of it creates to liberty difference someone could have a sharp pain in a lot an injury that a reasonable doctor or patient would find important worthy of comment or treatment the presence of a medical condition that significantly affects an individual's daily activities or the existence of chronic and substantial pain are examples of indications that a prisoner has a serious need for medical treatment so when a prisoner presents with chronic and substantial pain which mr hamby did they're not we're not saying they immediately had to provide surgery but when that pain fails to respond to all of the conservative treatment measures offered by the prison and there's one treatment option left that even dr hammond admitted more than likely or more likely than not would have relieved mr hand he's pain they can't withhold that and allow the prisoner to continue suffering and wait until it gets life becomes life threatening or so debilitating it was a mean we end up agreeing with you this rania was treated surgically under court order so is his measure of damages damages for pain in the period of an unjustified yes really talking about well that the measure of damages would be the pain he unnecessarily between the time that the defendants were aware that he was suffering chronic in substantial pain and that conservative treatment had failed and then denied the one treatment option left to alleviate the pain and as it's chronic a term o aware of a clinical definition of chronic but i believe a reasonable definition is chronic that it continues and does not result in response to conservative treatment measures and i believe the court can even look to here's where the offender health plan they give a definition of intractable pain that includes pain that is moderate to severe intensity and frequent or constant in occurrence and in this case the undisputed facts show the mr hamby had pain that was moderate to severe  intensity and frequent or constant in occurrence i believe he may have been given by the profane or advil but there was no recommendation morning or honors ma'am it please the court i'm assistant attorney general ten fuller and i represent the defendant correctional officials in this case the district court's decision should be affirmed for two primary reasons first it correctly concluded that defendants were entitled to qualified immunity because it is not clearly established that the failure to surgically repair a reduced civil hernia violates the eight and nine and second plane to fail to provide sufficient evidence of deliberate deliberate indifference specifically plain to fail to show that the chosen course of treatment was medically unacceptable under the circumstances in terms of qualified immunity defendants are entitled to qualified immunity  damages in so far as their conduct does not violate clearly established law which a reasonable person would have known and that's important in this case the plaintiff's claims related to the umbilical hernia are only claims for damages at this point plaintiff mr hamby has conceded that the claims related to his injunctive relief for that condition are moot at this point the only surviving claims are monetary damages in terms of qualified immunity although a case not need to be precisely on point it must existing precedent must place the question beyond debate here we are arguing that there is a lack of clarity in the case law instead that if correctional fishel have pointed to over one published decision from the southern circuit has also reached that conclusion based on those fifteen cases there is no way that the defendants would have had fair notice that the failure to surgically repaired or a deuce of a hernia qualified immunity point i feel like the law can't be that there has to be present on every particular medical because you know medical treatments are varied because of so many different ailments people and their methods of treatment are constantly changing though there are always new ways to deal with things so it seems to me that we should say that they have clearly established law on a point  be a president that talks about surgery to repair a hernia and there's tons and tons of cases that deal with the more general principles  when when medical treatment is required and so that really troubles me about your yes your honor you may be correct that the exact condition is not required to have a case exactly on point or there may be some conditions that are so obvious that qualified immunity is not appropriate however in this case we have the exact opposite we have cases were courts have routinely found no eighth amendment issue for the failure to repair the reduceable hernia in factual circumstances that are indistinguishable from mr hamby structural circumstance there are any cases to the contrary mr hamby your honor has yes your hon mr hamby has cited four cases different court cases from the ninth circuit which reached opposite conclusions three of them from were from oregon which had adopted a policy of not repairing reduceable hernias under any circumstances that's not a situation we have here mr hamdi has not pointed to any circuit keep courts of appeals cases that have found the opposite proposition while defendants have report purported to numerous cases so that nets out to fifteen to one is that where we are fifteen to forty or are he pointed to four but you are distinguishing the oregon cases correct your honor so fifteen to one in that in that count so how long does a person they have to be   as all the treating providers have indicated there is no per sysfs cutoff date that we can say there is not their automatic untidily automatically entitled to surgery as all the treating providers indicated in their depositions and declarations below it's based on a range of factors which include the ability of the person to function disappeared of the pain things like that mr hamby function of a very very high level he works five days a week as an electrician's assistant for seven and a half hours a day he went to school at night in a welding school and he did exercises on the weekend which included hundred five pushups with laps in between each step i was very how much he's got a show to get a consultation in my right that has his own treating physician recommended or said he wanted surgical consuls and that was denied by  theirs by the review committee no not entirely or are his treating primary care provider was mr figaro's and mr figaro a testify in his deposition that he would have voted no for mr light was a physician years as a singer are deliberate indifference requires more than a mere mere disagreement among treating providers and it recognized when there are situations where the doctors are using their professional judgment deliver difference does not exist as plaintiff has indicated there is a continuum of care in treating her new conditions and all the medical providers in this case indicated that the department considers a range of factors consistent with the standard of care in the community in determining whether or not to surgically repair a hernia condition and that's exactly what the medical providers in this case did when a value waiting mr hamby is her new condition additionally when the court looks at the a facility medical director dr hammond who is the facility medical director for the department of corrections and secretary warner who is a secretary at the department of corrections and their involvement mr hamm hammy's care is quite limited and does not establish the liver and difference instead it establishes they exercised their professional judgment and agreed that a course of conservative measures was appropriate for mr hamby condition based on the fact that he was functioning at a high level and able to do quite a lot during this film correctly that's on the plan if you have been able to and willing to pay for the surgery that would the done that  is correct yes so this was generation where they were not willing to pay for its based on the judgment but they would have done it if the patient had paid for it yes your honor they were not going to deny care which mr hamdi would go to the expense of paying for if that was something that he decided to do you need hernia surgery was elected and mr hamby had the option to purchase that elective surgery and he didn't have the money or do we know