trial as well as a fair point counsel in the interests of time i will limit my discussion to the excessive force and supervisory liability claims your honor is this is a case about an inmate who became increasingly concerned that infection would return to his kidneys and was in such severe pain that he made a desperate plea for medical attention by going man down on september twenty fourth in response to this plea sergeant hoagland threatened mr kember oh stating quote if you ever go man down on my shift again for medical and are not dying i will have my officers beat made good on this promise just two months later when mr kimbrough threatened to go man down to receive his medication on that date officers kelly mcbride took force mr kember outside and nothing but his shower shoes and underwear proceeded to please excuse me pushing against the wall and slammed to the ground now despite these allegations the district court dismissed mr excessive force claims and failed to construe his complaint as alleging a supervisor liability claim first excessive force claim the district court dismissed mr kember's claim because according to the court he failed to sufficiently describe the officer's conduct upon which is claimed with space this analysis is flawed for two reasons first this court and byrd vs phoenix police department which we referred to in our twenty eight j letter reverses district courts this missile of a pro se plaintiff's fourth amendment excessive force claims that was based on the same erroneous analysis and reversing the district court this court held that a pro se plain f allegations that the officers quote beat the crap out of him causing seventy percent vision loss was sufficient to state a claim because it made plain that the officers use of force was on reasonable under the circumstances this is just a pro se plaintiff like mr kember oh need not say to describe the officers conduct in detail as long as those allegations demonstrate that force was used and i thought your argument was that the attachments to the complaint and the amendments that he tried to make gave more detail so it was enough tell anyway yes your honor that is our position in complete copy of his six zero two appeal which it was attached which it was attached to a complaint sufficiently describes officers conduct and in addition the medical report demonstrates and elaborate on injuries that they caused and can i ask you didn't list the eighty eight claim in your division but it seems like it's related to this claim about the snow so can you explain a little bit more what his eighty eighth theory is yes is a theory is essentially that he is a mobility and hearing impaired inmate and that he is required to wear a vest once outside his cell as required by the court order remedial plan armstrong versus davis now the officers refused to allow him to put his vest on before the transport and refused him the ability to essentially refuse him the ability to be in a wheelchair and essentially that's his claim is that he was not transported in a manner consistent with his disability and does he think that is why he ended up injured i'm not quite sure i understand the day images are the full theory of how this idea a thing mattered yes that is his position that he would not have been injured the officers would not have treated him as they did because if he was wearing his vest for example or do you think that's already clear from the complaint you would need leave to amend to make that clear i believe it is clear that there are damages alleged in the complaint namely that the transport itself was a painful experience for mr kim row the leg irons that he was placed in his ankles and it made it made him trip on several times during the escort if he was in a wheelchair those injuries would have been prevented but however this court believes that lead to a man was warranted  we would ask that they reverse and remand for leave to amend going back to the excessive force claim the complete copy of mr kim to appeal which the defendants attached to their motion to dismiss a lot of rights on the defendant's conduct  because he did not resist at any point or an escort and obeyed the officers orders to cough up in addition his allegations that the officers forced him outside and nothing but his underwear and shower shoes must be credited to show that the officers acted maliciously  sadistically in mr kember stated a sufficient excessive force claim against the officers and this court to reverse a discourse this missile accordingly now moving on to the supervisory liability claim the district subordinates to be mr kember up but also suggest that sergeant hogan was present and failed to intervene and not use of force but the magistrate judge let the claim against hoagland continue on and it was eventually the district court judge who granted summary judgment i think against hoagland and it was really the district court judge you alternately adopted the magistrate judge's findings and recommendations about not being able to raise an argument in the in the briefing in summary judgment so isn't that just an error that the district judge made something going all the way back to the screening stage i don't know why your focus on the screening stage is our alternate position that the just your court erred by granting defendant summary judgment and not allowing mr can proceed on a theory of liability but it was summary judgment weren't they was error because this complaint did provide sufficient notice of a supervisory liability claim therefore the district judge just a court should have allowed him to proceed on that theory of liability at the summary judgment stage alternative if we agree with you about that is there any reason to say stated against hogan or did he just say you stated the cognizable claim that's where a lot of the confusion arises your honor the not the screening order itself although it reiterate the fire actual allegations that support the supervisor  closed that option off when it said that the only cognizable claim against sergeant hogan was for placing the leg irons on him alternatively the district court erred by failing to construe the matter raised at summary judgment as a motion to amend the pleading if the court had done so they should have granted mr kember leave to amend under rule six fifteen and conclude your position is he doesn't even need to amend the pleadings that was in the complaint all along right yes you're on an alternative argument if you credit the district court's conclusion that his complaint did not provide sufficient notice of the theory of liability and conclusion we asked this court to reverse a remand for further proceedings on this claim or an alternative to grant mr cameron leave to amend and if you have my time's running out and i would like to see the first there were at least two types of events that should have been a minute and would have made a difference to the outcome because they would provide an independent corroboration for otherwise on corporate testimony of a prisoner plaintiff the first of evidence or precisely the language that is found in federal evidence eight hundred thirty six the rule for business record exception and the purpose behind or did anyone talk about whether they were prepared in the normal course of business and all the other problems of business records so the defendants  attach their stipulation was a declaration testifying that she defense counsel i called him before making the supply and during trial further elaborate on the content of the phone call saying that when defense counsel called her called  little hard for you to get past given clarke's testimony that she did whatever the paperwork said how can these documents have contradicted her testimony in that regard the medication reconciliation forms were provided objective prison were objective prison records that were inconsistent in clarke's testimony that cameras medications were automatically discontinued when he went out for surgery and given campbell status as a prisoner against the words of prisoner officials it would if the jury had heard independent corporation of his testimony and further evidence of how it would help with that the jury took around four hours and even sent a note to the corps asking why the documents  i believe that it would have made a difference am i right that plaintiff's doesn't dispute that clark gave him tylenol in fact tylenol with codeine and i think throughout the period so he's claiming it's only some medications that were denied list the first item is quote plain this relevant medical records including but not limited to and quote that language should have been is so broad as should be understood to include all of plain this records that are relevant to the case but again we get down to the authentication of argument for shannon hewitt who is counsel for miranda this court should not disturb the jury verdict in there is clark's favor because there was no error throughout the course of the trial and the magistrate judge properly screened complaint complaint appropriately allowed mr kimber leave to amend at the motion to dismiss stage and was within his discretion in denying leave to amend years later when mr kember attempted to bring a new claim in at summary judgment by the new claim you mean the supervisor ability that is correct your honor and how is that a new claim because there's no allegation in the complaint that sergeant hoagland order these particular officers to do anything this december twenty third two thousand and eight date where the but we're going to be an inference if if he if there is an allegation that he made the threat if you go man down i'm going to ha one ability no your honor because we don't know that these are the officers that he generally commanded we don't know anything connecting that statement made months before with this incident in december and there's no other connecting facts in the complaint so why isn't that something that could have been explored in iraq or tories during discovery or i mean if you were wondering is he making a supervisory liability claim then couldn't that have been asked him i mean it seems like you construed the complaint a certain way and argued in summary judgment and he comes back in opposition to summary judgement says no that's not what this claim is i'm not sure why he should be precluded from doing that it's not defendants who could construe the complaint in a particular way or it was also the court because at the motion to dismiss stage it was made very clear what claims were going forward and that claim was a claim against sergeant hoagland that he personally applied leg irons too tightly there was no claim at that point that he was somehow liable for making this threat and then ordering officers to do something and i guess the part i'm having a tough time getting past is that the screening the original allegations if i recall correctly that the magistrate judge to screen order references are the allegations that arguably support maybe a supervisory liability and then the claim sort of disappears and doesn't never comes up again in the defendant's file a motion to dismiss and it seems like it's premised on the the leg irons at that point so the prisoner how was he supposed to know  decision on the motion to dismiss and i believe the final order of dismissal is in the record at five forty one but the findings and recommendations i have to find the exact site to that but it indicated which claims would be going forward and what did it say to make clear that supervisor liability was foreclosed it said that the claim going forward against sergeant hoagland was a claim that he personally applied leg irons to tightly it's in the record at page five hundred sixty eight your honor where the court describes the claim is on which mr kember will be proceeding i think that's still that's still begs the question though because the description in the magistrate judge's order is still simply limited to the leg irons and there's nothing doesn't talk about the allegations about you know that it's about the supervisory liability irons but not a supervisory liability claim he just sort of did it by omission he just sort of said you've stated claim as to the leg irons we're going to proceed on that and the supervisor liability claims sort of just disappeared but there was no explicit supervisory liability claim pled or found cognizable earlier at that point the parties knew what claim was going forward and i would submit that again there's no allegation that sergeant hoagland orders the order these officers to do anything and if the complaint doesn't explain whether he was present for these uses of force that he ordered these particular officers to do anything there just wasn't anything there in the complaint that would have if there are no further questions on that point i'd like to move on to my next point which is that the dismissal of mr cameras excessive force claims with leave to amend was appropriate mr kember allege that officers used excessive force against him with no facts supporting any theory of liability other than that against officers kelly and mcbride and now defended mr campbell points to a document outside of the complaint to argue that the allegations were sufficient but while that would be appropriately considered by the district court in granting leave to amend it was not part of the complaint here and it would not be considered to state a claim on that basis of the records of his grievance documents there were not attached to the complaint the records of the grievance records that mr kimbrough is pointing to on appeal is at in the record at page six hundred seventy nine and that's not a part of his complaint that's actually attached to defendants motion to dismiss and that's the portion where  mr kimbrough argues that he explained his allegations against officers kelly mcbride and that he said what they did to him and he did include additional information in that document and that's what the district court considered when granting leave to amen d but again it was not part of the complaint to the complaint did not include any additional allegations other than these officers acted with excessive force and it included appeal responses but those responses are written by third parties and they were also similarly bag with respect to the allegations against those officers so that's another reason as well why supervisory liability claim against sergeant hoagland was not cognizable least with respect to that claim so we had it wasn't e r seven forty five you're right it's a response but if you attaches that to his complaint and it talks about the claim he's making is that you're placed in handcuffs behind your back when you're taken outside and there are leg irons put on you and  they would let you get dressed all of that that's why is that not enough detail and why for pro se plaintiff is that not a way to make specific enough allegations again that's a third party summary of what mr kimber was presumably attempting say  grievance in a different document so there would be a number of inferences that the district court would have had to have drawn in order to conclude that that's what mr kember was talking about in this complaint when he said that's enough to say to mr kember ok mr kimbrough i see all this stuff granted him leave to amend and mr kimber attempted to amend piecemeal the district court then gave him a further order on the motion to dismiss saying an amended complaint must be complete into itself and allowed mr kember at that point we're looking at whether or not the documents that were tats were sufficient to go forward that is correct your honor and our position would be that they were not that they were sufficient to allow mr kember leave to amend and that's what happened here is that he was granted leave to  good morning shannon you would on behalf of mr miranda this appeal addresses just one issue against mr miranda and that's the allegation that he failed to return mr kim bro to reno for his second surgery so mr pearl miranda actually prevailed on a motion to dismiss that claim based on failure to exhaust administrative remedies back in two thousand and thirteen in the interest of time i'd like to focus on mr kim rose to inmate appeals at issue in this case against mr miranda so the inmate appeals focus on him asking for medication but they also say the surgery was delayed and i'm not sure why for someone who is a prisoner is not a doctor saying i have this problem i haven't had the surgery i was supposed to have and i don't have medication why that's not enough to tell the person both that he didn't yet have the surgery and that he didn't have the medication well your honor i think that the key here is in the action requested mr kimbrough is very specific and phatic about what his needs are and that is refill meds asap please refill my pain meds that is the focus and that's why the court rules that ruled as it did in this if you have a case that says that if a grievance lists a medical problem that the prisoner has to correctly diagnose his own what medical care he needs if he's described the issue i don't believe it's about diagnosis as much as the gryphon versus case which indicates that the inmates grievance it needs to advise the prison of the problem to be addressed and mr campbell was very specific about that i need my pain meds the they have expired and they need to be refilled and that is what was addressed by the prison at that point the second one says the one did it's number seven two thousand and eight says and i'm due for surgery on kidney stones now i mean  the he had just had an operation and he's recovering from an operation and clearly needs the medications he knows he has to have another operation and they know they have to take them back into their operation at a minimum a created the duty  for the officials to at least investigate what was going on here i mean they were put on notice of that right they should have investigated whether the surgery was delayed or whether in going on with him you know if you need the medication he just had an operation and he talks about the surgery i don't know what else he could have said i mean what else could he have said yes well your honor i believe that in this case because of the focus the emphasis on the pain medication refill that's what the prison was looking at and the question of whether this is notice to the prison that mr miranda failed to send him out to reno for his second surgery i think i think that's lost on these documents and that's why the court ruled as it did in that motion to dismiss and i do want to as a side note just note that the case did continue against mr miranda as to the allegation about the pain medication and that was disposed of by way of summary judgment which has not been challenged by the appellant in this case if we disagree with you about the exhaustion ruling and think the district are aired and that you have an argument about whether it's the complaint states a claim that should have survived i did your honor and in the interest of time i didn't address that but i  that you bring that up indicated in my brief i did argue that the allegations themselves and conduction with the attachments in the complaint was not sufficient to state a claim against mr miranda they were having to do with you though shouldn't have been given leave to amend i mean that's the kind of thing that could be cured i mean you might say he can't because he can't honestly say if he at least could have the opportunity to plead more well as i understand it with miss ellen bach that she had mentioned about the progression the issues regarding the leave to amend and that he was permitted but didn't i guess but i know this issue he never knew that he would have to stay more click more allegations against miranda specifically as to the denial of her surgery i mean perhaps he has more allegations he could make you know i don't know if we could speculate regarding that if he had more more that he could bring against mr miranda but the court did permit him to proceed with the issue regarding  the pain medications all the way to summary judgment and again the screening order as i mentioned in conjunction with the motion to dismiss our or rather in conjunction with the complaint shows us that there really doesn't giving me additional time i will try to make this brief but first the defendants erroneous lee argued that the staff response of the top encompassed within the six zero two appeals cannot be considered in determining a motion to dismiss defendants merely court should have considered the complete copy of the six so to appeal attach the defendant's motion to dismiss because it further elaboration on the defendant's conduct and demonstrates that the defendants had notice of its claims which is the purpose of this pleading requirement in addition to the hogan claim to vent his own easily argue that there's no allegation that hoagland specifically ordered his order and his subordinates to use force on the state however mr kember's complaint alleges a sufficient causal connection between the threat on september twenty fourth and the actions of the officers on december twenty third he he was on duty on the night on september twenty third and mr cameron threatened to go man down these were the two factual predicates which mr  let me ask you a question about that the opposing counsel once said that the district court eventually dealt with the medical claims as they relate to miranda provider at the time and conclusion the district court should hold that mr kane rotated a sufficient claim against defendant moran's r or in the alternative grant him leave to amend because it's clear that under this court