him at please the court becky james on behalf of the defendants in appellant francisco can tonya and bradley juergen sam the issue in this case is whether the defendants a warden and associate warden at the time are entitled to quick qualified immunity where the plaintiff was provided accommodations for his disability by any standing up what's really going on in the brief in this case is that you are relying on your own witnesses because we don't have any talk from anywhere i haven't said it was and it well he says there wasn't so and so that's the evidence we have to take quite well i think that one of the key points here is that he says the allegations that he makes and what the district court rely on are as to what you know his position of the rails obviously yes the defendants here dispute that and the documentary evidence supports it it's worth their position however for a while and i'm sorry and therefore why did the station the have the well because what's what's missing there is any indication that and this is true for pretty much all of mr thomas's claims any indication that the defense in this case were aware of the deficiencies lying to me it looks like the record does show some questions of fact as to the adequacy of the accommodations because there was one radio if i recall wrecked correctly in the shower but he needed it because he was in the wheelchair and step he needed a real outside of the shower in order to create a safer situation he needed a piece or some type of a crap mar in order to comfortably transfer in and out of bed and there was  assume mr thomas is correct that there was rails were not there that the absence in the record is that defendants quinton or jurgensen were aware that there was an inadequacy that this was creating a substantial risk of of a report of any fall in so one thirty seven there were reports of falls in different cells in a cell before hand in fact that's what precipitated the move to this cell he had to raise a complaint about the rails he had had injuries in a prior s said no i understand that you just told me there was no indication that they know it and he just said he told them well ok i guess to get back to the evidence in the case of what  what the documentation of what had happened at that time and it's apologize i mean that that's what i was referring to the documentary evidence at the time but that's so now i'm going back to where i think you might think you're relying on your own reading of your own evidence if i can follow up on my colleague's question the issue that we're struggling with or they said i'm struggling with is ok we have different versions here why isn't that a question of fact you may have the better version because you can argue there's no document that supports what he says but nonetheless when he says i complained to the defendants about this and nothing ever happened doesn't that defeat the qualified immunity isn't that a question of fact for the jury well and i guess this is where we get to get into the you know  or no to my question and then you can explain please the question has and i think that's because there is there is a doctrine that you know i plaintiff cannot defeat summary judgment simply by putting the conclusory selfserving out but that's not true the march of two thousand and ten and that's in his i think it's his letter to the director director lap and when that's the first time that he says and i think this is significant and this is as the are forty five forty eight where this is the first time indifference because in march he's raised this and in april they fixed it throughout this time warden can con in his responses reflected his understanding in this is this isn't just spirit his understanding was reflect his responses that the accommodations were adequate and as to the medical supplies i mean in that time which is very quickly as a medical supplies he was told specifically as was jurgens and that these that the requests that he was making were not medically necessary and on that basis simply cannot be considered to be deliberately indifferent to his needs when that's over the back brace and the question about raising the question of the track piece right but but not to rouse is is you know an absence of a discussion about that so your position is that he first asked for the rails in march of two thousand and ten and thirty days later in april he got thrills yes by his own testimony he had them yes yes do you have a is as true what we have to come back to in this case is were they deliberate were were either of these defendants deliberately indifferent to a substantial risk of serious harm and to answer that question you know we have to look at were they aware or did they see did they subjectively understand the substantial stansell risk of serious harm if he did not have the accommodations that he was requesting they had no medical evidence they had go for it thank you your honor and may please the court the defendant's entire position rests on accepting all of their own witnesses facts is true and your best evidence of deliberate indifference is declaration yes where in the declaration doesn't state the timing of when he alerted either defendant to the fact that he needed additional rails put in the cell it does not specifically say when he alerted each individual defen so what counts so is arguing is that the first time that they were really put on notice that the rails and the combinations were in adequate and additional rails needed to be added the sound was march two thousand and ten and then the a few days later in april what in the record contradicts that so first of all prior to his transfer to sell one thirty seven he was in cell one forty four he wrote a letter to warden hole in check about that and asked to be transferred from so one forty four to another cell because it was also one forty four was in the handicap self and how long did that transfer take were pretty time elapsed between the request and the  transfer he was transferred on about that on or about that day that they made the records so the transfer request wasn't specifically made to the defendants but the defendants were supervising this facility and mr thomas in particular so i would submit that that initial transfer request should put the defendants on notice that this is a disabled inmate and their mind he's obviously disabled he has a leg right so that's not a question he's disabled he's entitled does sell with accommodation accommodations are insufficient well there's not an exact date on that but mr thomas does say that he complained to mr you're concerned at least fifteen times he is complaining more or different occasions to alert him of the issues with my cell and the need for my medical equipment the doctor fernandez had ordered for me so i would read that as he is complaining more or less about everything well dr fernandez wasn't  ordering and rails in the shower or that's true but dr fernandez was ordering a so i take it by your answer you cannot point me in the record to anything that contradicts what your opponent just told us that isn't the first time that the record reflects he specifically complained about if you will the shower conditions the cell conditions with respect to the handrails would be march of two thousand and ten yes no if no please give me a cite so  you use your honour's language there is nothing in the record that contradicts what the defense just said but i would say there are the fact that he talked to he's testified well there my understanding is that from what i read before he  had fallen several times for lack of a shower rails and despite this he took any spy who looked on several occasions you could see they weren't there but he said he wouldn't do it and then ultimately in march of two twenty ten he wrote a letter to somebody else not to germs so i mean it's at least a fair implication that there was a substantial period elapsed time that's exactly what i was going to say your honor that there are no we don't know when the first one started correct your honor  the although nothing in his declaration expressly contradicts what the defendants just said there is ample evidence that he began complaining before the march twenty eighth and just make based on the number of complaints that he indicated complaints that's correct do we have dates for those fifteen times or are they within a two week period are they over a three month period what's the period of time of these what's the general what i mean without were what can i grab a hold of so mr thomas is transferred to sell one thirty seven in august of two thousand and eight march of two thousand and ten is when he submits the letter to someone else so over the span of that of those several months mr thomas is complaining because it's complaining constantly he was transferred to sell one thirty seven because it's part combinations were he also complaining about other things that he said never were fixed correct he complained that he arounds and he says that was never fixed yes he also mentions that he was he was complaining about the medical devices that were taken away from him and never returned when he was first transferred to the shoo in slightly earlier in august of two thousand and nine and those medical devices included his batteries which dr fernandez ordered for him his wheelchair cushion which dr fernandez ordered for him and while dr fernandez had requested a trapeze none was ultimately ever provided but in his prior accommodations grab bar was installed above his bed which he could use sort of like that and in addition to this he's trying his best to use a little bit of a trap ease by trying to gather some strips of sheets that he's torn  fernandez in his initial seven seventy four both sides can rely on dr fernandes well that's true although i think their reliance on dr for net fernandez is a little bit problematic because they point to his later filed institution cannot provide for mr thomas needs that they do not have the trap he's that he requires that's the language that mr for the doctor fernandez uses in the in the story of the reasons they found her not giving jurgensen about the trap ease or about the alternative of railfan a bit so that's true and that's not in his declaration but i would direct the court to the district court's decision on motion for reconsideration where the court notes that there were at least two medical records reflecting dr fernandez his recommendation for a traffic light that's true but again we have a deliberate difference probably we have found somebody read them and decide not to do it and that's what's missing seven forms at trial argued that the defendants in see these because they weren't in the medical records which i think strongly suggests that they did see everything that were actually in the prisoner's medical records so the fact that there are  medical file document specifically recommending a true trekkies is at least some evidence sufficient to overcome summary judgment that they were aware of this need and then the last disregarded i would also point the court  piece so it seems like so it doesn't make sense for a different you're going to be saying he's not going to give him the trap he's mr thomas isn't asking for that so i said i'm almost out of time if the court is no further questions so if you could address the argument that it's where he concedes that maybe there may not be something before march but clearly he made a number of complaints and therefore that had to have occurred over a period of time why isn't this fair well it is it  entirely impressed ice and in the declaration when he supposedly made those complaints and again the documentary evidence suggests that was nothing known about that prior to that certainly beyond as i see it warden jurgens and  there's no indication also as to can time that he was informed that there was anything wrong with the cell going in the declaration on page one sixty one in the contemporaneous records can time his responses reflect his understanding that the accommodations were adequate that the cell was adequate he may have been mistaken but that's that's exactly the purpose of qualified immunity is to give reading room if he was mistaken well it's not just i think that what it means if he was in fact mistaken and they were not adequate rails but he had no knowledge of that he's still entitled to qualified immunity and so what's what's missing here is the knowledge so just fo for a moment that that the rails were were not adequate none of the administrative complaints raised that you think that the respect that the result might be different with regard to the two defendants well i mean it's up to the court i think i think it should be the same with respect to both because it really is no indication even with your intent that he was also i think we have to remember and this is understood as well he was actually not the decision maker he was one of he was not the one to decide really whether the accommodations in the cell and the requests made for equipment he was relying on the health services officer that what he had been told by the prior warden as to what he could do so  there is a subjective element not only to the accommodations have to be medically in fact medically inadequate which they were not here but also the defendants have to have subjectively known of the substantial risk of serious harm