case of prison officials acting with deliberate indifference to a prisoner's serious medical needs to central case would be prisoner complains of medical ailment and the correctional staff does nothing i would not call this a quintessential case i mean this guy was seen by physicians over a course of several years probably more times than many of us see a doctor in our lifetime so i mean isn't this really kind of a missed diagnosis case or almost a malpractise claim as opposed to indifference it's not your honor it is true that mr francis was seen on multiple occasions and occasions and he did receive treatment he received recommendations for icing his shoulder anti inflammatories rest those sorts of things but for a shoulder injury there is a continuum of care and yes it starts with conservative treatment said you take anti inflammatories you see if it gets better and if it doesn't then there are additional steps that can be taken to see what's causing the shoulder injury and to treat it but the problem for your client is that when he finally got the outside referral to the orthopod at u w nothing changed in the in the treatment plan he didn't get surgery i mean basically the doctor confirmed what the deal c doctors had been thing so i'm really having a difficult time understanding where the harm is here to support an amendment deliberate indifference clik you hon when mr francis saw the orthopedist that you job after the preliminary injunction was granted the reason that nothing further was prescribed is because before he saw the orthopedist he saw sports medicine doctor it you job he had that offered to him right even before he took that injection and before this island came he had had steroid offered to him correct that's correct he had it offered to him and then ultimately they say there's no there's no atrophy note h because yes he was offered a steroid injection which seems to seems to be an acknowledgment that he needs something else than what he's been given to address the pain the doctor who offered it says mr francis refused there's a that so after that when mr francis sees in his charge that dr kennedy had interpret interpreted their conversation as him refusing mr wood injection he sent two written kuyt saying no i'm not refusing it i wanted more information yes i would like to try that and even after that when his counsel sent a letter to dr hamlin to dr warner dr smith counsel reiterated yes he would like to try the steroids injection but it never happened it never happened until after the district court issued a preliminary injunction requiring g o c to send him out how much time what was that interval how much time went by from between the time that it was offered to between the time of the letter between the time it was offered in the time he got the injunction so dr kenny saw him in september two thousand and twelve september twenty fourth two thousand and twelve ok and he got the injection in july two thousand and thirteen ok so is your i'll just be frank frank it's strikes me that the amount of treatment here just it just doesn't calibrate against our other case law as amounting to deliberate indifference so when i look at cases where we have found or upheld deliberate indifference it strikes me that the facts have just been a lot more greed where where someone is waiting for months and months and months on end without any treatment where there's somebody is really ignoring him and deliberate indifference of course is a term of art and it's really an extreme level and so what's your best shot that the that the conduct you're amounts to deliberate indifferen out of the offering of a steroid injection didn't come until roughly two years when his providers were starting to recommend an orthopedic referral so for all that time the conservative treatment had plainly failed his treating providers had requested that i stop you there sure i think i think that's really key to say his conservative treatment had failed it's not that he wasn't getting treatment it's that it wasn't working out for him right and just because it wasn't working out for him doesn't mean that they're deliberately indifferent it means that they're not hitting the mark you know what they tried x and it didn't work maybe they tried y and it didn't work and so forth but that is qualitatively different which is why i asked you whether this is really almost a medical malpractise or miss i don't miss treatment claim that they should have offered him different treatment than than what he is at the basis of the deliberate indifference well yes they should have offered something much sooner because conservative treatment can't go on indefinitely under the standard of care we had an expert that testified after three to six months of trying to conservative treatment after that shows to be unsuccessful you go to the next step but  he suffers from arthritis as you not this is from a shoulder injury that he suffered while lifting weights at the prison right so he essentially has a chronic disease that is not going to cure itself and there is no cure for it so the question is how you how you address the pain or the symptoms that flow from a chronic disease and a diagnosis of arthritis in a joint right here isn't that the case that we have yes you are so and that's a so how does that fit into your deliberate indifference cases where all the doctors agreed for example in the vatican that the guy needed i surgery but the department of correction steadfastly refused to provide him because one good eye was a no that's not what we have here well to some extent we do because dr kenny had said that he could do his activities of daily living with his left arm but his right arm was limited and it was at that point that he offered the steroid injection but again it didn't happen to us to find that he couldn't use his right arm at all that was not how i read the record no but it was limited to just limit he could live like i want to move to a different topic because we've got only two minutes left i want to ask you about the box short legal materials we have on the record how much the legal materials weighed that's not in the record ok so they his claim as i understand it and you can correct me if i'm wrong is basically that he got these orders move that box or move your materials off of the floor is that right and he did it it was didn't want to get sanctioned it was took to lift the box up into your cubicle right and so is there anything about his effort there was some suggestion where you know you don't have to lift the whole box you come move part by part is there anything suggesting that he tried to do that he did that after the sergeant after he'd already injured his shoulder in the sergeant told him to move the materials that way but before he tried to lift the box the opposite we're just telling him to lift the box if they tell him to lift the box or to get off that you know are they part of the get up to put the box up in the cubicle i mean we're getting into semantics if they knew that he was concerned about his shoulder injury not semantics it's a question of whether or not he has any obligation to protect himself from injury i mean you have to be a rocket scientist to figure out that if the box is too heavy to lift and you lift out the material in pieces and move it in a cubicle piece by piece i'm really having a tough time here seeing how the eighth amendment which which is cruel and unusual punishment has been violated here the officers told him to put the box in the cubicle if they didn't see the that there were they were aware that mr francis was concerned about his shoulder injury lifting the box if in response to that if they didn't see the option to will take pieces i mean this was legal material so he's concerned about their confidentiality if they didn't see the option of taking things out and putting them on the shelf individually and then mark is the cubicle from the box it's well the boxes on the floor and the cubicle and i swear it's not like he has to go somewhere else it's right there  i guess what you're saying is that they should have been smarter than he was about how to live because they should've told him to take them out piece by piece at least i mean certainly at just missed but if they were aware of this option of taking things out and they didn't tell him that's even further evidence of their deliberate and gibson is just comments i mean well not this is really not tough if the object is to move the box and its contents from the floor to the cubicle there are two ways to do it you can try and lift the whole box or you can do it in pieces yes your honor but i wouldn't say it's common sense when the sergeant who reviewed the infraction sent a notice to all the staff that he has permission to leave the box on the floor so mr francis in his mind as he is aware that staff have been informed that he has permission to leave the box  floor and this is a box full of legal materials and so it is him being forgive me for interrupting but you did mention how does him being aware that that they're aware of his weight restriction change the analysis because he is aware that a sergeant has found that he has this restriction and that he the sergeant has notified staff that he's allowed to keep the box on his floor right he's concerned that if he if he even thought of it at all he's concerned that these are confidential legal materials and if you store them loosely on the shelf they're not marked where and when officers come in to do a style inspection or his cellmate is in the room that they're much less confidential when they're available to view he testified in his deposition i think over time i'll just be quick my last question he he testified in his deposition that other inmates had use file folders to maintain confidentiality but keep the stuff on the on the on the shelf or up  up in the cubicle but i don't think he requested that is that right i believe that's right that he didn't request powerful others thank you thank you morning may please the court today we're here to ask that the decision of the district court dismissing mr francis is claims to be affirmed your honour's under this court's decision and shields vs console and jackson vs macintosh mr francis cannot show that the defendants decisions were medically unacceptable in light of the examination findings they also cannot show that their treatment decisions were in conscious disregard of excessive risk to mr francis health is that your position that he didn't have a serious medical condition yes the serious is that it was not a serious medical condition to warrant the need for an outside referral and the importance of that is if you look over the thirty one months that he had examinations performed and if you look at all the factors that were taken into account by each individual that did those examinations they all looked at the same criteria and they even looked at the exact same criteria that was used by the university of washington's orthopedist in making a determination as to whether or not he even need an orthopedic referral or whether or not any additional treatment was necessary so from the very start from the very beginning examinations they look to see whether there was any muscle atrophy whether there was follow of ation whether his shoulders were asymmetrical they looked at all of that the physician's assistant what that that the care review committee looked at that dr kennedy looked at that doctor sawyer looked at that and they all came to the exact same conclusion that there was no objective medical findings to support any of the subjective complaints of pain that mr francis was making about at one point there was a suggestion that there should be a referral that he should see orthopod right there came a suggestion from possibly the physical well there came a suggestion from the physical therapist after he  participated in physical therapy that said possibly that an orthopedic referral should be done because it wasn't working and he still said he wasn't working the fundamental issue though with mr francis's motion for summary judgment and what he wants this court to assume is that w mr and made the referrals to the kerry view committee was that mr watson somehow actually supported and believed that those referrals were medically necessary and if you look at his brief and you look at the motion for summary judgment the only testimony deposition testimony that a difference of medical opinion here about about what the next appropriate step should be taken as opposed to trying to argue that she didn't really mean it when she suggested that he should see an outside orthopod well i think that both of the arguments are strong if you look at the  everything so are you really asking which one are you making are you arguing that she didn't think he should see an outside special i'm arguing that there was no physician there was no medical provider that saw him that thought that he needed  care and when you look at the dozen of when you look at the dozen individuals that served on the kerry view committee none of those individuals thought that his objective medical examination findings warranted an outside orthopedic referral and he did  very early on and outside referral that he may take x rays and i think they might have even done an m r i they did well that was back in two thousand and eight an m r i was performed and after two thousand and eight he made no complaints whatsoever of any pain it was when he indicated in two thousand and eleven march of two thousand and eleven that he had somehow reentered his shoulder and that's when all the complaints of pain came back it was at that point that the medical providers were doing examinations and there just wasn't any objective medical evidence to support that he needed an outside referral for any type of additional care and when you look at dr kennedy from university washington's examination report he uses all the exact same criteria that all the physicians in the medical writers use when they examined mr francis so his report specifically notes and talks about how there's no atrophy there's no gross deformity full elevation of shoulders his shoulders are symmetrical and that's thirty one months after the initial complaints in march of two thousand and eleven another important thing to note is that when he goes to see dr kennedy at university washington that occurs only three months after he basically got this mistaken appointment with the rehab spell specialist what had happened was after the court issued its order granting the preliminary injunction the department attempted to make appointments for mr francis to attend the university of washington orthopedic clinic what the universe of washington did was they went ahead based on what the department provided them they one had scheduled him with a rehab specialist as opposed to an act actual orthopedic clinician that we have specialists gave him the syringe action the important thing though is this is that they have relied on that stir injection as being the the injection that basically took away his pain but if you go back and you look at the records just three months later when he reports to dr kennedy it's extremely important because at that appointment three months later he says that his pain is an eight out of ten and he also indicates that that pain is our chain stabbing and sharp so dr kennedy at the university of washington knowing that thirty one thirty one months has passed knowing that he had already gotten th action just three months prior to that knowing that francis still complains that his pain isn't eight out of ten that it's our chain and stabbing the only recommendations for treatment that dr kennedy makes at that point are the exact same recommendations of treatment that he's gotten from day one in march of two thousand and eleven and that's over the counter pain medication and to continue strength training strength exercise training i think the only thing that dr kennedy added was that francis had indicated to him that the pain seem to get worse if he was using an overhand throwing so dr kennedy recommended that he quit do that that he quit doing that but otherwise dr kennedy knowing after thirty one months of him making the exact same complaints of pain of the exact same objective medical findings that appeared there was no change in the recommendation whatsoever and i think that's important because based on this court's decisions and shields versus kunkel in jackson versus macintosh he's got to show that they basically knew that their treatment decisions that they were making were in conscious disregard of excessive risk to mr francis his health and there's just no evidence of that well let's move to the motor above your head in the boxes so he has a negligence claim on that which is of course quite a different standard than the eighth amendment and the question is whether their material issues of fact on that in terms of what they told him to do and what he could do with those legally your heels what is the state's position on that under the washington state's court's ruling inclusive or says mccorkle one of the things that the court has indicated was that a jailer cannot be held responsible for failing to present what he cannot reasonably anticipate and we talk about a lifting restriction here this isn't a five pound lifting restriction this is twenty five pounds you can google on any office website and a entire box of copy paper eight reams is twenty pounds so for the officers to first somehow believe that his legal material box contain more than twenty five pounds of items in it is difficult but to one of the things that mr francis admitted during his deposition testimony was that he was keeping materials in there that were clearly outside of policy and things that he wasn't supposed to be keeping in there he was working on other inmates legal claims he indicated that that paperwork was also contained in his box and that his box also contain what he referred to as good reference material it's difficult to surmise that those officers would even deem that that box would contain more than twenty five pounds worth of items in it but two when they instructed him to come into compliance with so inspections they never said stand here and lift that box and put it up they just indicated to him that he needed to get that box off the floor and somehow mr francis wants to basically switch and shift the responsibility completely on the department and indicate that the department has to basically go in knowing his looking restriction figure out how much the box ways and then give him specific instructions on how he needs to m minute for rebuttal i know we went quite a bit over time so you didn't get any saving of any time the all of the examination findings that ms did was referring to most of those the ones from dr store dr kenny came more than a year after mr francis providers were recommending  orthopedic referral the argument that there were no providers who were recommending anything else be done is not true his treating provider and his physical therapist both said conservative treatment has failed we recommend an orthopedic referral nothing happened no steroids injections were offered no other treatment beyond what had already failed was offered to mr francis until after counsel notified the facts in the net case as you pointed out were more egregious the severity of the pain the consequences were greater the eighth amendment does not require a prisoner's pain and level of dysfunction to be that severe before peralta overruled snow but on different grounds peralta over ruled on with respect to i'm really familiar with probably because i started the opinion but but but i'm just speaking to the notion of you know what judge coleman really started with that this unlike this inmate seems to have been seen by many care providers have a lot of appointments it's not like he was ignored for months and months and months on end is it right he wasn't ignored but many visits prescribing the same care that has failed when the treating provider is aware of something else that could be done and asked for it but prison officials who are not the treating provider who have not reviewed his medical records refused to authorize that that does demonstrate deliber position that had he been seen earlier by an outside specialist he would receive just a road injection sooner and that would have solved this problem presumably and that was the next that was when i say particularly he had a three month steroid injection and three months first of all at one point he says these didn't really work for me that's earlier he says that's why he's skeptical when he gets a steroid injection three months later he's back saying i'm in acute pain so is there any evidence that the answer to judge thomas question is yes as opposed to speculation we're on he didn't say that he had not had a steroid and a therapeutic sterrett injection prior to that he had a diagnostic injection from dr sawyer three way earlier he received oral steroids years before and those didn't how and he said those didn't help right but he got a steroid injection from the rehab specialist and then three months later he's complaining to  kennedy that didn't work that i was looking for dr kennedy's report that's not my recollection of what he reported to dr kennedy because you were called dr kennedy saying that he received the steroid pain and that is treatment that he would not have received but for this last shot four is long a period of time is in the record well we know that it's not more than three months only my recollection of d kennedy's report differs ok well you know what we can check out ok thank you thank you ana thank you both for your arguments this morning case just argue to francis versus hammond is submitted