after the time of the litigation two years ago was a forty eight year old man incarcerated in the state penitentiary system for first degree robbery he has one hundred seventy one months to serve he's at this point he probably has between four to five years ago what we're can what we were contending on our petition for or our appeal is that this case should not have been  green let me let me focus on what troubles me in this case you're not making an allegation that mr reynolds wasn't get wasn't afforded access to medical personnel though it's records pretty clear he sees he sees the nurse provider quite regularly your central claim seems to be as as to the treatment that he was given and i'm sorry when they die and diagnosed and the diagnostic methods that might have been might have been used so let's assume that all of that fell below the standard of care i'm just focusing on the malpractise claim for a second which may be a little easier for you what's the evidence that your client was injured in other words there's nothing in this record that tells me that if he had an m r i or if they pursued a different method of treatment he would be better off and whether we're under nine hundred eighty three or or med mal statute put aside your absence of expert testimony i still has to be some evidence that your client was harmed by this course of conduct what's they have an answer that well it's the if you look at the offender health plan it states that they may not have followed the plan i you know i'm i'm i'm i'm i'm giving you all this it's malpractise they fell below the standard of care and a good doctor would have ordered an m r i ok fair enough what but you got to show that you were harmed by that failure so tell me tell me what evidence there is that your client was harmed by these alleged misdeeds well the problem that was that that we have is because because there wasn't anything done besides just giving him the palliative drugs we don't know but don't you have got worse does he say he did get worse but can you can you have any do you have any evidence that a different treatment plan would have prevented him from getting worse that you know now would you say is the prison didn't give you that evidence and i understand it right but and that's and that's that's the thing he was he was having it was having worst problems he couldn't put it is he was also he's also lifting weights and doing other things too so i mean we can't i'm what i'm having difficult if you had a doctor here that said if this guy had gotten an m r i he would have had this treatment plan and he would have the pain would have been ameliorated i'd agree that summary judgment was inappropriate but when i'm hung up on is that is damages well the  also saying he couldn't do anything earlier than that well he wasn't saying he could do anything he was just saying it was getting worse so he said it was excruciating pain let me ask you how how do we hold a nurse accountable for anything in the in the fall it's a deliberate indifferen did what she was supposed to do she referred his request for an m r i to the committee she didn't deny that the committee did how you hold her accountable or responsible much less find in deliberate indifference on her part well  my understanding is that she she never made a recommendation that perhaps he should get some additional which he did ask licensed physician said it up to license physicians and said well here you said well it but it was sent up to license physicians who looked at it and said we think he wants an m r i we don't think it's medically indicated so under those circumstances how was the nurse she couldn't order an m r i could she could she could recommend one but but she already knew what the by physicians twice who'd who'd agreed with her course of action the well that's one reason why i've also included the position as a defendant and i just want to go back to something that your honor that you brought up earlier i do have to be candid with the court i i should have when i filed the complaint sadam ijaz and jumped in relief because and i and i didn't and that that was well put to get injunctive relief you still have to show harm well that's true solution or you'd like to settle yes yes and that that was the thing the case was a summary judgment was filed before we started and i'm i have no complaints about that that's life but it was started very early before we actually got into the discovery process and that type of thing but it's the the problem that i see is that is that there would never be the federal help plan and i'm sure the the the nurse know knows about that states that if there's intractable intractable pain which is constant pain getting worse interfering with daily activities that the that if relevant and we have no reason to think that well the number i was one thing we were looking at the what would my client wanted first of all was just a consultation with a doctor actually talked to a doctor since they had that i mean in the away we have contacted his widow and i have secured her approval to represent his he his state has not been probated all of his assets were put into a family trust and i can represent today that i do represent the interests of that trust when and if they are substituted in this case i'm here today asking the court to affirm the district court's grant summary judgment on mr owens claims for two reasons first he presented no evidence in support of his claim that the treatment that he did receive which the court described as x rays serum testing medication and regular checkups was so deficient as to be a constitutional violation of the of the amendment and secondly he points to no case law that clearly established his right to receive the treatment in diagnostic procedures of his you know it's l assume you're right about all this let me tell you it typically troubles me about these cases both at the trial court level and here you both have spent thousands and thousands of dollars to it against this issue and the consultation would of course three hundred in the m r i would have cost a thousand is there any thought in these cases given to simply at an early stage saying gee if we could settle this by having a neurologist come in and look at him why don't we do that little other than litigating that up through the ninth circuit well for starters i work pretty cheap your honor but yeah i know what you're i know and and that's part that's part of the problem which is which is that state state departments of corrections have free lawyers and so if they don't do the calculation that everybody in the rest of the world does and says well my lawyer course two hundred dollars an hour and i can get the neurologist in for two hundred dollars an hour and settle the case hundred dollars a case actually in state court but i take your point you're underpaid and i know you can't respond to this i am just exercising some frustration because we've got three people in here and district judge and a whole bunch of lawyers in a case in which my guess is a mediator could settle in five minutes if a neurologist came in and looked at  reynolds but that's not what's in front of us so i vented well i wanted to i wanted to respond to your observation earlier where you pointed out that a claim even if we assume medical negligence and that's the term under washington state law for medical malpractise that doesn't state a claim under the age limit for deliberate indifference deliberate indifference is over and above that deliberate indifference requires a showing that prison officials had a culpable state of mind that they were actually aware of facts from which they could draw an inference that a substantial risk of harm existed that the actually drew that inference and that they nevertheless disregard that risk of harm to the point in your mind in a continuum of events could you foresee a situation where a prisoner complaints of persistent and worsening pain over an expend splendid period of time might trigger responsibility the failure which could amount to deliberate indifference i think that's a pretty fact specific analysis if for example let's say yes that should i take my facts you'd say yes i could i could i could come up with a scenario  where you know let's say in this case if if his x ray had showed a giant tumor pushing on his spine and they said gee that looks awful bad and sent him back to a cell and did absolutely nothing so it doesn't have to be that that was my hypothetical and worse and worse and everybody keeps saying well we took an x ray for six eight ten years ago and it was normal and so take the drugs and shut up at some point doesn't that that's not this case right but that's what judge jury was providers as to the propriety of the treatment and under a still versus gambling is here that it is not really treatment it's time gnosis the reason why we have a black call is because the problem isn't that they knew what was wrong with him and did and made a judgment about what his treatment should be the problem he believes is that they didn't do a sufficient diagnosis to find out what's wrong with him well i think that's partially true he did receive treatment form of if you look at page page seventy of the record you will find that when he visited nurse keppler on november twenty seventh two thousand and twelve he told her that opiates helped while in jail and he wanted them now so that he could do his exercises better that because they weren't anything else well they did do it they did do other things they gave him x rays they gave him serum testing they gave him regular checkups twenty times which included a neurological component i mean an m r i for example is not the first in line treatment for back pain if you or i were to go to our doctors they would've done the exact same thing they would have said do you have any work neurological deficits if you have a neurological deficits and a german tomo pattern that makes sense based on what we know about human physiology then will order an m r i that's not this case this case is an inmate who was lifting who's garnering podium finishes in prison weightlifting competitions while he was complaining about not being able to put on his shoes and socks that's the providers in this previous injury in two thousand and seven but it doesn't for until the second time yeah that was back in two thousand yeah i'm just trying to find out whether or not those right i don't know whether the physician or the nurse actually had access to those they knew they knew they had occurred did they have access to them i don't know the answer that i do know that mary kepler's chart notes which are all in the record and pages sixty six or eight indicated that she ordered his full record general i understand that i don't know if that was in this record i'm trying to figure out whether there's some other yes and i stress that those complaints that he was having trouble getting doing activities daily living those post date his final trip to seek treatment for his back so those are complaints that were never presented to the department of  complaints that we deal with are the ones that were briefed yes because under deliberate indifference the the analysis is where you have to you have to administrative exhaust the otherwise correct at that point he was he was when he weightlifting conscious yes i did talk to him about that and he just said well i can't get along with that so i didn't communicate with her again anyway and i think that's a bad problem in the sense that it sounds like maybe he has a problem now he didn't have a problem  understand what you're saying but it but if it's it's indicative of the continuum of what was going on that he felt himself getting worse and worse that there was more pain and then it got to the point  where it was totally interfering with his activity see even when he was lifting weights there was he expressed there was difficulty because he had pain from the very start but