council has time for this motion expired no your honor there is a distinction between the decision that was rendered by the court on july twenty seventh and the decision that was rendered by the court on september sixth there have been significant changes in the complaint and based on those changes the motion to dismiss that was filed on september fifth two thousand and seventeen is a new motion to dismiss the pilots were not served with the complaint they did not have notice of the complaint until august fourteenth of two thousand and that is untrue for dr that's not true for dr will but there is a distinction with regards to the claims that have been asserted against doctor originally doctor who was identified as the leader of correctional marriage health care marriage health care when we look at the amended complaint and the second amended complaint the claim against dr will has shifted if we look specifically at paragraph one twelve of the second amended complaint dr will is actually a part of the utilization review panel and paragraph one twelve of the second amended complaint but when we look at paragraph one sixteen of the amended complaint that is not the case when operative said in fact that it's the same set of facts but the role is different he was actually part of the group that decided to deny the surgical consultation and that is the basis of this appeal was there an allegation in the first amended complaint that he was involved in the surgery denial i think that they attempted to say he was involved in the surgical denial because he was the director of correctional made of health care that's distinguished from being a participant clearly violated that individual's constitutional rights there is no clearly established law that would put the members of the panel on notice that their decision on that day in june of two thousand and fourteen amounted to a constitutional violation and there is a distinction as a relates to the second i'm in a complaint and the first i'm in a complaint because i on behalf of connecticut attorney general's office a required legally required to conduct an investigation and i also have to be mindful of the fact that when it comes to representation that is a choice that each individual government official has to make i have to notify them that they have the opportunity to take advantage of our services but they can make the determination if i make arguments substantive arguments arguments related to qualified immunity and then that government official decides that they don't want to be represented by the office of the attorney general fact that run into issues with regards to issue preclusion that could well you didn't appeal the first or ruling in this case it would have been very difficult for me to appeal the don't know if you forthcoming with the names i was i was very forthcoming when i was ordered by the court to turn over documentation after those subpoenas i turned over over two thousand pages of back and that's when i was ordered by the court on july twenty s thousand seventeen to identify the specific members i didn't object i complied and i will say that throughout this process i have complied there's never been a motion to compel filed by the plaintiff because i've been very forthcoming  do you accept everything in the plaintiff's complaint is true for the purposes of this motion i do and based on the allegations that are contained in this complaint there is no clearly established law that will put these individuals on notice that their conduct is unlawful there's nothing that is beyond debate it has been very concerning for me because qualified immunity is a munity from suit immunity from suit and despite the fact that there is no clearly established law i'm here today to assert that these individuals are entitled to qualified immunity now now because there is nothing that would make it beyond debate that at the time that they made the determination make this argument to the district court rejected your request for a qualified immunity i tried to make the argument after these individuals were served on september fifth two thousand and seventeen less than thirty days after these individuals were actually served with this complaint when i when i look at the amended complaint the members of the utilization review panel are identified as john doe's one through ten over a two year period is that the  government to go on a fishing expedition as to hold these individuals could possibly be i will tell you that when i when i was served would you call it a fishing expedition when you knew who these people were on october in october of no no i did not not in october of two thousand and sixteen and when we had a conversation with the court in january of two thousand and seventeen at that time i still do not know who the individuals were both of the parties were in the same set of circumstances not knowing who these individuals were the utilization review committee is a revolving rotating panel and if we're talking about ten potential people over a two year period i do not know but i will tell you that after i was forced to identify these individuals i did after these individuals were served i accept a service i appeared the same day and within thirty days i filed a motion to dismiss made that motion to the district court i made a motion yes i made that motion on september fifth two thousand and seventeen and the next day it was rejected it was rejected without an analysis it was rejected without any indication as to what the clearly  was there i think that the problem with the first analysis is that analysis does not include any any indication as to what clearly established law what preclude these individuals from qualified immunity at the earliest possible stage that analysis pretty much says to my clients will deal with it at the summary judgment stage will do with it at the summary judgment stage and the concern i have with that analysis is i was not given a meaningful opportunity to assert qualified immunity on behalf of these appellants i was never given the opportunity to try and show the court that at the earliest post your motion what more of an opportunity do you need the motion was rejected within twenty four hours last but you made the motion you had the opportunity i don't believe that i have the opportunity a meaningful opportunity because when the court addressed my motion there was no analysis with regards to the individuals that were served on august fourteenth of two thousand and seventeen there was no analysis done as to my argument about qualify and unity as it relates to the utilization review committee as it relates to dr johnny bright my of original motion to dismiss that was filed in october of two thousand and sixteen that motion merely stated that these individuals had not been served had not been served so i'm looking at this and i'm saying to myself is there this expectation that i am to simultaneously argue lack of service and qualified immunity at the same time isn't it reasonable for individual to expect that at the point of service at the point that these people have been properly identified have been served then i can have an opportunity to assert an affirmative defense of qualified immunity yes and that the earliest possible stage for me you made isn't that the argument that you made in the first motion to dismiss the engine makes the qualified immunity argument not with regards to the members of the utilization review committee not with regard to dr wright in that original motion to dismiss the argument i don't represent them i d not appear for them i never present them for argument that i made at that time was these individuals had not been served we don't know who all the right is because laverne wright has never worked for correctional manch health care that was a limitation of the good morning good morning your honour's and may it please the court my name is andrea poleski bruno and together in my colleague seated to my right we represent the appellee christopher neary this appeal begins and ends with the standard of review for deciding qualified immunity at the motion to dismiss stage as this court held in barnett and mckenna a motion to dismiss is a mismatch for qualified immunity and almost always a bad ground for dismissal and that is because defendants bear a higher burden to show dismissal of qualified immunity you heard of the motion to dismiss qualified immunity as immunity from suit if they have to wait till summary judgment they have to go through almost complaint asserts clear facts showing that the enemy how to serious condition and that there was deliberate indifference that qualified immunity should not be decided at that time qualified immunity should be decided at the motion for summary judgment stage before the allegations in the second amended complaint show that there was deliberate indifference to a serious physical condition mr nearly had a physical condition painful lumps in his breasts he experienced increasingly severe pain due to the diagnosis physical condition and the defendants knew that mr neary was suffering from severe pain would that knowledge they denied treatment delayed treatment and pursued a course of treatment that they knew to be ineffective and that would cause him to suffer and continue to suffer that severe pain question he explained why you describe surgery is the only complete way to cure and its accompanying a pain but by using the word completely or you knowledge in your allegations that other means of treating that condition could adequately alleviate the pain and even if not completely to answer your question or the allegation comes because that's what the doctors who diagnosed mr neary told him at the time of his diagnosis that the surgery was the only complete way to stop the growth from continuing to grow and to alleviate the severe pain associated conditions were not conceding that any other treatment would have completely alleviated his sometimes his severe pain or the physical aspects the record does show some treatment however  there are cases like this court's decision in brocken hathaway that indicate that where an inmate is suffering severe pain and the treatment is largely ineffective and the doctors know that it's ineffective and that they declined to do anything more to improve the situation that that's a violation of the eighth amendment did you try to get the names of the feds before you made the motion for the first motion to dismiss before the first motion to dismiss was made yes your honor we consulted with our client and the first amended complaint and it was only for the first time that we learned that was incorrect first name was in the october twenty sixth teen motion to dismiss that we sought that information discovery i won't burden your honour's o belabored version of the facts it's mostly set forth in our briefs but the information that we could not glean from the medical records was not provided to us until the order in connection with the july twenty seven teen denial the motion to d and there's no allegations in the second amended complaint in fact the allegation show that he had severe pain from a physical condition severe pain substantial pain is a serious medical condition and the failure to provide treatment for that is a score stated in brocken hathaway is a constitutional violation  maintains that dr wus claims on appeal in this action are untimely the allegations in the first amended complaint and the second amended complaint are exactly the same if you compare paragraph one twenty one twelve of woo violated his right by denying the surgical consultation that has remained constant your argument is that if there was going to be an appeal for the denial of qualified immunity it had to come within thirty days of the no we do not concede that point your honor as we set forth in our brief there are arguments as to why the other defendants could have sought an appeal of the earlier decision on the well as we pointed out earlier dr wright was in fact served and they accepted service as to the u r c defendants who are identified as john doe's the first motion to dismiss was brought on behalf of all of the defendants  and you can look at defendant's brief it page three and they seem to agree with us statement certain arguments were certain on their behalf in the court's decision specifically in the record at page  sixty analyzes those arguments as the your see defendant and found that because all of the allegations against them were the same as those against dr wu for the same reasons the court was not granting qualified i in closing and unless the court has other questions i will simply point out that this case presents a simple issue it's focused on the allegations of the second amended complaint and here mr neary has set forth facts that show a violation of this court's clearly established law that he was in severe pain that that pain increased the defendants knew about that pain and delayed treatment denied treatment in pursuit of course of treatment that they knew was ineffective and would cause  allegations regarding the pain that he felt was not right those allegations are allegations that have been lodged against dr naqvi dr nafi is not a party to this appeal this appeal is about the utilization review committee and the determination that they made that mr neary did not necessitate a surgical consultation if we look at the requests for relief that's contained within the second amended complaint as well as the original amended complaint there's no request for relief with regards to the utilization review committee and pain and there is nothing that would have put these individual doctors on notice that at that time the quality of himself of the administrative remedy process and when the utilization review committee made a determination that determination was not about pain that determination was about whether or not mr neary necessitated a social consultation you don't accept the allegations of the plaintiffs true i do except i do except the allegations are true i do but when i read the allegations there is nothing there's no claim that would put these individual utilization review committee members on notice that on june twelfth of two thousand and fourteen mr neary had concerns about pain they had a request before them and the request that was before them was whether or newberry needed a surgical consultation there is no allegation in the complaint that would establish these doctors to be plainly incompetent or in violation of legal authority these individuals are entitled to qualified immunity and they're entitled to qualified immunity now there is no clearly established law that would make these discretionary