because the evidence submitted by the defendants in support of their summary judgment motion was contradicted by their own prior statements to mr jordan statements to mr jordan by defendant's dr smith and dr happen first and by their expert dr norris to establish that mr jordan required physical therapy and specialized care throughout the time of his incarceration  view that he didn't receive this care until more than a year and two months after he had arrived at avondale in december of ninety nine is when he was finally transfer is because is because they're the statements by doctors established in medical necessity for the mr jordan proposed his own medical opinion as to what freeman was necessary rather it's the doctors that themselves who conceded to him at the time that he was under their treatment that certain treatment was necessary specifically physical whether it boils down to is there a distinction between formal physical therapy and the sell physical therapy exercise i mean is that a factual issue the somebody has to figure out your own i think that issue has been resolved already again by the statements of the court requested but that's a distinction that the defendant makes in his own declaration a distinction that makes no sense if they're the same thing similarly the first time that mr jordan was seen by dr happen dr smith he asked them if you transfer him to somewhere where he could get physical therapy and they said we won't do it because prison administration doesn't like to transfer inmates for medical reasons again they would have no reason to say that rheumatoid arthritis even though there was initially that misdiagnosis and as the court pointed out that's a fact that supports a finding of negligence one of the claims that mr jordan lost summary judgment on  two weeks we're talking about a year and two months during that time this condition was obvious to even lay people mr jordan's minute declarations from five individuals who were either incarcerated with him at avenue or who visited him at avondale who all said it was obvious to them that he was having trouble standing that he was in constant pain if you put that together with mr jordan's own testimony that he suffered greatly during the time that he was that adding all that he was unable to get out to get his medication he was forced to urinate in a coffee can in his cell because he couldn't make it out of the cell and on top of that a long span of time before he got the appropriate treatment well i see your point and maybe before a jury may carry the day but in this case you have the answer to a person who did the operation and that it either met the lower standard all we have than opposition to that is low testimony as you look to the record it isn't that he was shunted away i looked at every entry he was seen quite frequently by these doctors they were points on that question the first of all is a factual argument that it's not that there is no opposition to the testimony of dr nor it's dr nourse his own statements to doc to mr jordan indicate he thought at the time in months you will be unable to rise from a seated position the next thing he said is when mr jordan finally did arrive at avondale dr norris that we've been trying to get you here since may of one nine hundred ninety nine more than five months before dr norris at the time made statements indicating he thought these these two types of care were necessary now his his declaration as your honor pointed out contradicts that fact because now he says the standard of care was met that's exactly why there's a factual dispute because the fact of what was the necessary treatment which is the stablished by medical testimony only is disputed the doctors have contradicted themselves thereby creating the factual dispute as to what the standard of care is in the first place and also to point out to the court the case of archer versus doctor which is the second circuit case seven thirty three f second fort fourteen the case in which the second circuit  reviewed the facts and said yes there is history of ongoing care here but at the same time the facts shown by the plaintiff testimony that there was an unnecessary delay in treatment is enough to raise a factual issue as to the presence of completely undermined by the fact that mr jordan was transferred to the california man's column in may one thousand four consultation and necessary treatment there was any belief on dr nurse's part or anyone else was at the california men's calling mr jordan would remain there he would receive any surgery that was necessary or any other type of treatment necessary his condition but he was not he was sent back to avid all and the records generated at the time did not indicate any disagreement whatsoever with the treatment in fact misdiagnosis whatsoever in regard to the case of mr york and again in terms of the facts when you look at the facts we're talking about treatment ok treatment by d submit to the court there reference to a footnote in the supplemental opening grief by mr jordan demonstrates conclusively that it was it shows that he was given a drug therapy that he should have gotten it shows further that he was provided with his good therapy exercise that he could do and again i was to admit to the court that this whole idea of a person having to sit in front of a physical therapist our  doctor or someone else is the only way that you may receive physical therapy is not even the standard of care in the state of california based on that factual issue in other words  and it's not available at ave and then there's a statement that the reason we want to transfer you is because of administrative reasons doesn't that raise enough of a factual issue that we can't answer the very question that you had been engaging in the quote physical therapy that his condition was much improved that's a note dated from august of ninety nine and it shows that shows that he had improved range of motion improved ability chief medical officer at ave all answered a form administrators appeal sent to him by mr jordan requesting our transfer that penetrative appeal was answered justify the transfer so that the authorities seems he would take mr jordan we don't have a record of any darker interfering with the transfer we'll have a regular doctor delaying a transfer this record what we have is a record of continual treatment a record of treatment with drugs appropriate to the condition a convention that we all need to remember this is a chronic condition it's a condition that only worsens the only thing that you can achieve with medication and physical there isn't some cases you can slow the deteriorat that's the only thing that we can do with rheumatoid arthritis at this point in time mr jordan received the appropriate medication he also was given exercises that were properly grant summary judgment on the eighth minute issues but it also granted summary judgment appropriately on the issues thank you reply then i will spend that time rebutting a couple of specific points one argument that counsel made is that if more treatment had been required may ninety nine that it would have been provided at the time there's really no evidence of that in addition to the order number at page two eighty two in the supplemental records to minute by mr jordan in the case there was it was ordered that no overnight stay happened at c n c so that one day visit for a consultation so there's no evidence that what would have happened as counsel for just a little fifteen section thirty three fifty of the california code of regulations indicates that decisions on transfer and treatment in a prison system are made based on the recommendations of doctors to the question in this case is what did dr smith and dr patton for to do i understand the counsel argues they didn't have the power but the question is what did what attempts today made if we had a case where they tried and tried and tried to provide the treatment that  but in fact when he sent the august letter to evaluate the transfer he said that mr jordan could walk up stairs and care for himself but on july twenty sixth dr patton first had written a crow no saying that mr jordan was totally i respect that your honor in addition this court has recently held in the fraser versus goodell that a party opposing summary judgment can do so on the basis of hearsay because the focus on summary judgment is not on the form of the evidence which depends on the circumstance  you for the time and effort you've obviously done an excellent job in preparation and carried out your duties responsibilities and also the court in fact as well this is the only circuit where the pro pro bono program works effectively wherever