allegations of discrimination i think he was i don't think i'm asking that question i think i'm asking the question did he have the law right if he applied he applied not apply the unpronounceable versus story  well i believe that the law that will guide us in this case is one of them versus coopers and libron i've read your brief you didn't neither side is side of the supreme court case that was designed decided in two thousand nearly two years ago which seems to me that may well decide what laws were going to apply and in that case justice thomas writing for a unanimous or for your information is cited by three for us five or six but i take it that you're not going to be able to help us with that issue so you go ahead and help us with what you can i call a judge your honor for not being able to address that if you specifically however i do wish to turn the court's attention at least to the findings that were made by the district court judge who i think it also was unfamiliar with the cases he did not   the mcdonald standard for all of these cases which will make your job by a faster ledge isn't nearly the high standard the judge george set for you but if counsel didn't cite the case judge george district court states this matter is somewhat unique however as maduka concedes that a month immediately prior to his suspension he incorrectly performed medical procedures on two different patient and i think that's a misconception that's a misreading of the grab a moment of plaintiff's complaint in essence we are not conceding nor have we ever conceded an incorrect procedure that would be analogous to the final decision where you have  fell below the standard of care or did something that was incorrect or did something other than what is a known risk to a medical procedure and therefore plaintiff's complaint points out these two instances not for support for why document duca ended up losing his privileges but rather for the argument as to why the alleged argument as to why he lost his privileges not the real reason his allegations are clear that the real reasons were due to his race and i think if you look at the miers decision for example the nevada supreme court decision we're not talking about qualified immunity here but rather what we're talking about is what minimal standards have to be afforded a doctor before that doctor loses his or her privileges and those standards include and clearly it was stated in the miers decision the right to confront witnesses the right to cross examine witnesses and that was not done here at all so i'm not raising the minor space in the context of some qualified immunity to the defendant in this case the myers case is relevant because it shows specifically maduka was not able to cross examine the two nurses who were never identified who had the critical complain of this alleged misconduct which gave rise to the board's determination that he should lose his privileges that is pattern and practice that is the overall scheme that we feel fits within the the higher the prohibited by nine hundred eighty one and so the district court with all due respect and again brought this up when discussing the circumstantial complaint is critical of the process below which resulted in the suspension of privileges because of the rights that were taken away from him that were not taken away from similarly situated not african  worse the first surgery where there was improper integration he's revived the abandon the surgery quite doctor the very next day improperly into baited and the same thing happened it resulted in absolutely no complaint against  no suspension of privileges no peer review no nothing so really then we're looking at whether judge george believed that we had to come up with an instance within a month apart of two nine african american doctors going through two improperly into bates gets the right into patients that they forego the surgery that same patient is taken back to i c u to be neurologically sound and they go to perform the surgery again the next day a white doctor deeply into the facts and none discovery at all we haven't got to rule twenty six and i point out in the miers decision there was a year's discovery on the propriety of the fairness hearing and we were we have done absolutely nothing so  good morning you asked the question whether or not the lower court judge judge george applied the proper standard the answer to that question is yes this case raises an interesting question and that question is on a motion to dismiss how far does a district court judge go in examining the allegations in a complaint or a discrimination claim we know from the norah case and i want to try to pronounce the first part of the case with the so case united states supreme court case that there is no heightened standard in terms of pleading with respect to a discrimination claim we also know that on a motion to dismiss the district court positions who got different treatment i'm african american they're not therefore i am entitled to a claim for discrimination under forty two u s c nine hundred eighty one is that enough to survive a motion his opinion dr maduka step forth that as a result of two incidents and i refer you to page two zero two on the record of appeal and this is directly out of their allegation page one seventy two from the excerpt record why fifteen which is paragraph i'm sorry line six which is paragraph fifteen of the second amended complaint judge george recognizes when he says this matter is somewhat unique however as maduka concedes that in the month immediately prior to his suspension he incorrectly performed medical procedures on two different patients resulting in complications then judge medical center fair hearing committee imposed a summary suspension upon dr goodwin maduka suspending his privileges as a practicing physician at defendant sunrise hospital the lower court did doctors who are not african american that are similarly situated as i but who got differing treatment what you see judge george doing is saying wait a minute you've alleged that there's a that there are they may have gotten different treatment but they're not similarly situated can you draw an inference from that that there was some kind of racial animist the answer is you can't so while the second a minute complain your own allegations you are not providing me with any inference upon which you would be entitled dr maduka to relief under age discrimination claim any and what judge george says is and i can refer you to the exact language he says you've identified two doctors who had one incident each of a similar nature but you allege in your complaint that you were not sus d for one incident you say in paragraph fifteen it was because of the two incidents that the hospital suspended your privileges or are you telling us where he just alleged too much should have said i've been discriminated against and because the alleged more than and then his complaint must be dismissed with prejudice that's an interesting question that i thought of myself and the answer to your question is perhaps we can't perhaps that here unfortunately because we don't get to perhaps why wouldn't we just treat those allegations surplus and go right to the issues after all we're not asking for perfection i mean mcdonnell douglas we're only asking for a plain statement and i agree if the judge disagrees with that then he can put in his order and let him amend it to say that that wasn't  e i agree that we're talking about a rule eighty two leading standard which is plain and simple language he didn't file the claim you don't apply the relief that you're entitled to under the claim however the claim stated that is just got some parts in the mix unquote we don't allow them to enter a dismissal with prejudice a complaint we make it without prejudice so they can amend i take it from what you're saying that you have  court or maybe maybe you can help me then if you have read the case you do believe that we should use that case in this nine hundred eighty one case even though it was the title seven civil rights act case that s interesting question i think when you look at the language that justice thomas uses while he says this case deals with employment discrimination and how the standard should be set on a motion to dismiss for those types of cases i think by application you can say that that language is sweeping in very broad i think this case is very consistent with how judge reason you think will assist the court you can call it a letter indicating that we have those rules so that we're aware that you can be made aware of the most recent cases if in fact we do apply this and we haven't made that decision then we go to mcdonalds and there's a very much looser standard than what i sense judge george has has applied in this case he seems to be looking for more where in the reef in judge amended complaint was filed after the supreme a case so all of this happens after the u s supreme court case and i don't think there's any indication that judge george would not have known about the u s supreme court case he doesn't cite it but i'm not sure there's an obligation to cite it because he is not there's no indication from his opinion that he is applying some heightened standard that godall douglas case  refers to in the heightened standard there is no indication from his opinion that he is applying some kind of heightened standard of keep me in the in his opinion where you come to the conclusion that he's not applying heightens that well i come to the conclu a different case than most cases and he tells you why it's different in discrimination cases i believe it is it is largely the case that the plaintiff comes before the court in says i was minding my own business and all of a sudden i got terminated judge george says this is a different case because the plaintiff here is saying there were two predicate acts two predicate incidents which pre concludes you may have cited a claim but you haven't told us how you're entitled to relief under that point so when you read the language judge george is  a heightened standard he's saying plain if you came to me with some allegations i am giving truth to those allegations but there is no imprints that i can draw from those allegations that racial animus vs anything else that what happened is that judge george asked at the hearing what do you mean and plans counsel reciting this one incident he said well that's not enough is that what happened here the way i read the complaint and i can just point you he on the second patient should is one of those positions who could be charged with having a similar issue right now i understand that but it but then he goes on to say just a nickel conclusory fashion i guess i think you can answer the first part which is that's all we have in the complaint the second part is it appeared to me what happened then is that judge george at the hearing illustrated from plains council what do you mean he said it and there are there's only one today that every other case involves only one instance he derived from looking at the four corners of the second the minute complaint there was no hearing on the motion to dismiss he looked at the four corners i've looked at the four corners and i've reached the same conclusion that the plaintiff was referring to two different physicians because he talks about dr parker any thoughts about another physician who had a similar incident but then he goes on and says i've had two incidents and it's the two incidents that triggered the discipline so in summary what i did noble review you will look at the same second amended complain and my response to that and i'm not trying to be coy or dodge the question is perhaps he would have been by by pleading more and being more specific but again it's his complaint this is the third time doing that  is what we're this is what we have to deal with much that i'm just saying your answer would be different if you know that it omitted reference at all to the specific and i'm not sure my answer would be different i think it comes back to my initial question when i stood up here ten minutes ago which is this case posed a unique question for this court and it is how far does the lower court go in challenging the sufficiency of allegations do you want the lower court to say you know i see in paragraph the nineteen that there's an up under eighty two because i see a claim and i see that he's saying similarly situated treated differently or do you want the lower court to look at every allegation treat it is true and then derive a decision or result based on that i think your charge in a motion to dismiss to look at the four corners of the document i don't think you get to say i'll accept some allegations but because the other ones really take me further and make me you to page two or five on the excerpts of record wind twenty four through twenty six where the lower court said while maduka alleged some facts regarding his hearing took four i'm sorry to  four where the lower court says while the duke alleges some facts regarding his hearing he fails to make any facts regarding the manner in which a medical peer review for a non african american doctor was indicates they're just a court was applying a hike to mcdonalds and or their i can see how one might might reach that conclusion but but at the same time i think what you're dealing with is you're dealing with a lower court who is looking at the entire record and when you're challenging the sufficiency of the allegations on a motion to dismiss i think the court has to look at all of the allegations and think what you have is a lower court saying i've looked at i've looked at all of the allegations and i'm challenging the sufficiency of them which is what i'm required to do in a motion to dismiss and he's saying here are unfortunately he didn't have the opportunity of doing that with the supreme court cases and then existing i understand you can you can come to that conclusion but i also would ask you to appreciate i'm not saying what conclusion i'm coming to i'm stating a fact sonora case preceded the filing of the second amendment complaint the filing of the motion to dismiss there is no indication that judge george somehow didn't understand the appropriate standard to be applied and i agree with you