accommodation well under the eighth amendment although the standard is also deliberate indifference and that situation it is whether she was denied adequate medical care in this case so in that sense although they both involve deliberate indifference and it would be whether or not the actor acted or failed to act despite knowledge of his claims the eighty eight would be despite knowledge of his need for an accommodation while under the eighth amendment it would be despite knowledge of his need for medical care treating physician so that he was not serious rules violation from report to work he also requested a different sort of law and what's elaine was provided she requested to be medically unassigned as opposed to  based on his prior orders that mr daniel was an able to make based on his disability so he requested to receive pain medication during that trip or to have a different means of transportation was the alternate means of steps fans which would have allowed him to stand up and move around and he did request the accommodation to receive kartik sorry not narcotic pain medication during during the trip which would have at least relieved the measure of discomfort and that was medication and dr song actually found earlier that in order for him to receive narcotic medication he would have had to have been an administrative it would have she would have been admitted to the prison infirmary that wasn't something that was distributed on a regular basis  whether it would cause a fundamental change in a program or a service or something of that nature now in order to just administer pain medication that seems inherently reasonable especially at something like tylenol six hundred milligrams of our motor and which i believe he was receiving at who was in charge of administering the medication i can imagine though that that a reasonable accommodation would have been to permit or was on the transport at that time to administer the medication to him or to in fact trained the people who would be on the bus transporting the prisoners you know i don't know i don't know the answer to why that prison policy is in place but it is our position that would have been a reasonable a dation for him and that even if there was a policy there should have been a modification in that policy based on mr daniels need can you show although that there was deliberate indifference here and in declining that requ colony was a fourteen hour bus ride during which mr daniel was shackled at his arms at his ankles and also by a belly chain to the seat that he was in entering the entire period of time he was on that bus humane shackled mr daniel should have known  later she requested the transfer and then mr jenner was in fact transferred in may of one thousand nine hundred eighty i'm not sure whether or not mr dr levin knew at the time that mr daniels transferred if he was going to be transferred out that specific time and the requesting t v administered medication while he was on the bus and and doctor then acknowledged what i hear you arguing is that the standards are the same you say he requested these things that would it's not soley the fact that he request them that he gets them it has to be what kind of requests a reasonable request you're on our request for something with reasonable it's important to keep in mind that the a t a i only addresses individuals with a disability so they would have to surmount that first article hurdle which is to show that they are disabled within the meaning of the act in mr daniels case there's no contest that he is in fact  disabled individual and we would submit that it would not open the door to any sort of claim because the prison has to make an inquiry as to whether or not the requested accommodation is  prison setting because as you probably will acknowledge the presence i think was a little different in terms of analyzing the rights of prisoners under the law and we have to balance the right of the prison officials to maintain security as well ya know that the line of nine circuit cases do recognize the balancing of that right and they say that for that's the right will be somewhat limited in cases where for instance there was a prison riot and  the officials were trying to quell the disturbance but in this situation where it is it's involves a disability and classifications and medical care and there is no there is no safety concern issue there true it still does not provide a reason to deny a disabled in maine the types of services and benefits that everybody else in prison is receiving who isn't disabled so we're not asking if that prison and raise the bar above what anybody else would receive we're just asking that mr daniel receive what everybody else was entitled to who wasn't disabled we're just saying what i'm saying is that the liberty and difference in recognized in his deposition that based on doctor should force finding that consulting neurologists doctor for found that mr jenner was losing function and muscle mass in his left arm now based on that signing  after losing his deposition acknowledge that indicated a wasting of the soft tissues in mr daniels arm and that would indicate that they that they were aware that he could be sustaining increased or more severe injury additionally and in terms of that and they were aware that that injury was causing in substantial pain i would also say that under the standard and i see it is in with jack and it's not necessary that a prisoner or an individual suffer a permanent declaration that he didn't know when the bus ride was going to take place in fact i recall that he was attempting to contact mr daniel on that day in fact called his housing unit who learned at that moment that he was in fact  being shipped out at that time card to power partly housing unit so the doctor live then states in his declaration i suppose by implication that he didn't know precisely when the transfer would take place our trip when he can't stand or sit for over an hour well again there is nothing in the record to indicate that dr lynn was ignoring information that a reasonable physician would have relied upon to reach that  the clerical keep in mind that that mr mr daniel wasn't clear not only for light duty porter work he was also cleared for clerical work for example so the instructions to custody officials would have evidence presented by the plaintiff that would lead to a conclusion of delivering what didn't didn't know that the man was going to be transported to facility for this i think that's reasonable you know and why would it be unreasonable to assume that he knew it wasn't next more than an hour right i think that's probably fair yes so he made a wrong decision by allowing him to be transported that way we can say that there's nothing in the record him during that period of time i see the courts doing it now well he couldn't stand only you couldn't say it only and there's nothing in the record indicate that he couldn't accommodate that sitting standard sitting standing into the chair that you're going fortunately that was a custody decision it probably was a function of other people that were going on the same bus you know they stop off at different prisons they have to alert the highway patrol that's quite the condition under which they travel do we know you know it's regrettable that the plaintiff chose not to submit any evidence with respect to that other than the fact that he went and he testified that he had these various problems but as far as for example that the band would be required to be seated for fourteen hours straight that it would be deliberate indifference no i wouldn't i'm going to help i don't think i could be seated for fourteen hours and again he wouldn't have to it's again that's the problem with having no afghans before the court the notion for example that he was seeing change and never got to move fourteen hours simply isn't something that is supported by the record  before the court i can't express it as part of martin to be inappropriate but does it really make sense for example that prison regulations don't allow for the transport of the medication with the prisoner force not course medication goes with the person or that kind of thing so i don't understand where that what the courts say but i guess i really just can't concede that point i'm sorry with with respect to the eighth amendment claim i have always viewed this notwithstanding mr daniels protestations contrary that's basically a difference of opinion a case i everything i look at here substantial injury as defined under the spell if you know there's nothing to show that here he had very extensive preexisting injuries everyone agrees on that and his condition changed hardly at all during the time that we were waiting to get in transferred in addition to that it's important to remember the record does reflect this that callup hatchery a didn't have a contract with a zero diagnostic technician or other diagnostic study so it had to involve a transfer and of course as as sometimes happens in prisons it's not as easy as just taking someone out put them on the bus and sending them there's a certain amount of words with respect i don't think that adds up to the kind of injury to shock a conscience of society under the eighth amendment is a good you know course not but  need i think i think we need to keep in mind that it's still an eighth amendment claim we're still talking about object of cruel and unusual punishment in addition the deliberate indifference and as this court said in the jackson decision for example when we're when we're differing in our opinions about the course of treatment of the medical plan the plaintiff has an obligation to show by competent evidence that the course of treatment was plainly incompetent and that there was a conscious disregard for these things i'm sure the court noticed that the plaintiffs offered no evidence of any kind on the quality of the medical care we on the other hand submitted extensive declarations from  medical records and concluded in no uncertain terms that the course of treatment was just fine so it seems to me that if plaintiff wanted to meet their burden under jackson they should have at least come in something  i believe their basic argument is they didn't need to because we didn't meet our burden of proof i don't know to expert declarations comprehensive declarations from the doctors it seemed as though we met our burden of proof and shifted the burden to the  court knows as this court knows it can affirm on any ground that was fairly raised below and we did raise qualified immunity and i think the recent russo decision i thought from the supreme court was pretty helpful because it once again said even if you may have violated the constitutional rights of someone you still have to have violated clearly established law so take the famous social security rating of mr daniel for example where is a case or a statute or rule or regulation that says for example that the prison doctor must necessarily be bound by a prior social security little bit more specific than that it is true that the eighth amendment clearly establishes the prohibition has drawn unusual punishment but we need to now go for purposes of a saucy a two step analysis we need to go into rating as a piece of evidence that there was deliberate indifference i think and again i apologize to plains council if i misstated this but i think part of the argument goes one piece of evidence that the doctor was deliberately indifferent is that he knew that there was a prior disability rating so since he didn't also give the same rating then he therefore must be deliberately indifferent i call that a difference of the pain especially where that disability rating is even part of the record we don't know exactly what the social security disability rating was we don't know what the paramor of the great war i mean for example is a social security rating from the federal government the exact same thing as a social security i would request that pain medication be dispensed to me by the transport officer so as to minimize the pain and distress of handcuffed and shackled travel clearly dr levin was on notice at the very latest as of march of one nine hundred ninety eight  the alternate sitting and standing would be adequate we just don't have a record as to whether or not they were deliberate indifference on that issue well your honor there i believe that there is a record on that issue because dr levin himself signed a chronicle in december of one thousand nine hundred seven that limited periods of standing to an hour or less and based on his knowledge that the trip to the c m c was fourteen hours he himself could have issued an order limiting the periods of standing and testimony that he was permitted to use the restroom twice while on the bus not twice during a fourteen hour period clearly does not amount to standing at least once per hour he also had a layover i believe in badlands for two hours so there were seven officer he was the person responsible for arranging transport he said that he arranged this transport on a priority basis he clearly would have known the means by which prisoners are transported and how that and how that happened we can assume that letter to to require him under the standard unseeded indulge her to investigate further to find out what what the restrictions were and what an appropriate accommodation could have been for that trip second  counsel talks about the eighth amendment and how that there's no deliberate indifference established because potentially there is no suffrage of a permanent injury well not only does mr daniel smith he suffered a permanent  injury a permanent loss of function in his left arm which should be an issue of material facts sufficient to overcome a finding of summary judgment but also under the standard enunciated and her the district of oregon case the pain and anxiety that that  y received based on his hernia which was which was admittedly reducible and which was remedied after surgery the court finds in that instance that the pain that he endured was sufficient to cause us to not to deliberate indifference under the eighth amendment also i would hasten to add that under the standard and the standard of the style i want and deliberate suffrage of pain is enough to meet the standard you're honest finally i would point out that in this case the only reason why the district court found that mr daniels case was not appropriate under the eighty eight was because he didn't he was not able to recover compensatory damages now mr daniel has shown that he has met the standard under