is the difference between how the tension kind of waits and there's mcclane handle mr lewis's medical situation compared to how the tenet shannon sharp prison policy in place was if an inmate who had a medical condition was unable to comply with the security measures and could not get onsite medical attention the only option shannon sharpe did well what protocol are you saying that he did not follow he was informed correct and then he then someone came there some klein right right she came right away so what w lewis said that he was in severe pain his neck and back hurt and that he could not move they asked him to comply he couldn't comply instead he was given an ultimatum which kind of it said basically if you do not get on her knees and crawl emergency room but the difference i would say is he was under their control he was under guard control he had no choice but to rely on them to get his medical attention and maybe if he was an emergency room screaming and crying out of pain and laying on the floor asking and asking for medical attention from over three hours and i'm sure  faking or something or other so they are his and that's why they say i can't imagine one in there i don't know what the rules are in the prison with with his eye so i asked what his situation was i know we had a back bad bad back was there some reason why you had to be really careful going in that cell and that's a good question you're on it's a good point the record does not indicate that he had any violent past there's nothing in the record indicates that he had a history of an electric shield and the video footage shows that removing him and how many people they stopped to do that for every prisoner it seemed to be because of that it seemed that he was in a special category where they had to be extra careful because he might jump up and grab somebody the not and i know i'm and is speculation on my part but it does seem that maybe there is a reason why they came in with a taser and several other things when this guy says he can't move your honored from the facts like i stated previously from the record it does not appear that he was a really a person of violent behavior in the of mind regarding her decision to leave him in the cell once he you know didn't walk to the door he attempted to through discovery there was no depositions taken there was there's only answer some questions in person can be in so much pain but if you're being asked questions that there's nothing there that's saying that he's in that much pain or or responding to all of her questions and prestige refusing to answer at least maybe he's so and so much pain he's unable to answer a central plan yes i see i saw that in the record as well there is that he he was not answering certain questions but he was telling them he cannot move and cannot comply and mclean no point was able to medically evaluate him because i was part of their policy she had to be he had to be secure before she could and she never had a medical evaluation of  either at six am and nor it seven thirty seven forty five when he was when she was contacted again by shannon sharp and on between that she did nothing she did nothing to evaluate mr lewis originally requested for medical attention and if she kind of which followed that procedure he would have been distracted the doctor would've been called in to a team or been put together he would've been taken to the hospital but he had multiple hours of needless pain and suffering and until the point that he was finally removed that would be the point of pain it's up to we know how big his cell was as specifically in other words how far he was removed from from the door once you know he was on the floor i think it's about there's nothing in the record that indicates it but when i did some research on my own it seemed to be like six to eight or six by nine cell size it was a pot hello good morning made police report i'm here i mean if the defendants and the one thing i kind of want to start out with focusing on here today is the fact that lewis is claiming this case is a deliberate indifference claim that is somewhat unique and is based solely on the pain that he suffered before he was transferred to the so this is not a situation where there is any permanent harm and his claim relies heavily on his allegations that for multiple hours he was ignored and humiliated well he was suffering an incapacitating type of pain did any of the defendants who instructed him to walk to the door but him testified that they had a legitimate safety concern or other reason for refusing to act to help him not explicitly the way you're putting it what they did say is that it is standard security protocol to restrain an inmate through the door before taking them to the health services unit and that was the problem he could not comply he was claiming he could not comply with standard security protocol so they had to figure out a different way to handle the situation and based on their declarations you can see that they neither of the defendants that are being focused on here today believe that he was any in any emergent condition or any that he  but given that given that assuming he was sobbing he was in tremendous pain were not disputing that mr lewis was in tremendous pain here what we're saying is that the record does not support the way he's characterizing the context of this case you take away the the undisputed prompt actions that were initially taken which is reporting to the cell immediately getting calling the nurse having the nurse report to the cell and doing an initial assessment of what's going on and then you take away the time period at the end of the timeline where it's undisputed that they took you know prompt after action once they call doctor the doctor on call then they form a cell extraction team and they extract him if you can take those libraries away what we're left with is an hour  ten minutes of back pain and we're not saying that doesn't hurt we're saying that that does not constitute deliberate indifference we have an hour in ten minutes where it's a little harder to see what actions were specifically being taken to advance t situation granted but that does not rise to the level of a constitutional violation especially in a situation where we have a man who was suffering from it was undisputed at and known the entire time this was back pain as opposed to another type of pain that might be more suggestive of something internal or something traumatic or something that might be exacerbated by a wait so it's under speed and that everybody knew this was back pain cases we counsel first of all i think we have to be careful about the minute the issue of back pain this is only back pain back pain as even your the discharge instructions said can be something severe or can be something mild but what's clear to i think there but is something that you can't necessarily see and until somebody examines that person either with physical exam or some type of x ray no one knows how severe this is and i guess the question is that hour and ten minutes or so that they have time from the time that mclean actually came to  looked at him at him wouldn't she know him is one thing for a lay person to stand because he looked ok to me he didn't seem like he was doing anything you know either the ordinary foot for a nurse to stand outside the cell and have that period of time which when you say aren't to misses and sound a lot but if you're in back pain should the nurse know that this is something you have to make a determination about and she can't do it by talking to him through a cell your point is well taken and i don't mean to diminish pain at all i think my point was that since it was understood that it was back in this was not something that was visible that they could not tell that he needed urgent care at at that time he but you see here's the problem at this stage of the proceedings comply with an instruction to walk to the cell and we wouldn't dispute that your honor i agree we we are we concede that back pain there's a large spectrum of back pain and it can cause someone to be unable to walk to the door so we're not just beating that we're talking about here is deliberate indifference and that requires us to look at the defendant's decision making within the context that they were presented with it and in this context  whether or not he could actually walk to the door isn't really the point the point is whether the defendants acted in a manner that was so unreasonable as to constitute deliberate indifference and we don't want to go they went away they went away because after after observing him they didn't believe this was a situation that needed an emergency cell extraction and so they had to figure out a different way to handle it and nursed mclean was the one who went away and she did not have security authorization to go into his cell so she needed someone else to give her an order of what to do and that is why one shannon sharpe told her to call the doctor she did and one thing i want to point out here is that it's in the shop was a call because she was a supervisor that came on kind of halfway through but she was a guard yes she's a guard who she had to tell the nurses she's this what you're in a person to to well she had to she had to address the kind of the security elements of this and and i think our position is that there was pain here there was there was a medical need he was taken to the emergency room within three hours of first pressing his call button and and though pain occurs we can expect prison officials and in the state highest security prison to prevent all pain and lewis's claim is really essentially an argument that they should have made a different decision they should have acted differently but that is not a constitutional  think his claim is that they should have acted well they did act and i think the timeline of the undisputed facts the undisputed facts everything the facts we all agree on show that they really they did act there was about an hour and ten minutes where it's hard to tell what they were doing and  agreed if they had called dr joseph sooner they might have done a cell extraction sooner but one thing i want to point out that is incorrect in what lewis is counsel is saying is that they're they're trying to make a claim as though there's this this this institution policy formal policy that when an inmate cannot comply with security you have to a cell expression that is not what dr joseph said dr joseph does not dictate security policy she said if you look at her declaration she said the only thing you could do is go in and take him to the e r so that's what they ended up doing but that is not a security policy that chadwick's or mclean disobeyed they were presented with a situation where they had a man claiming to be in very severe pain but he could not comply with authority here and i think some delay was caused by the fact that no one person could handle both the medical expertise and the security expertise and they had to have an interaction between those two professions was there some issue with the shift  and i think one person i don't remember if she i'm sure somebody got there at seven correct and i'm just i don't know when people come and go to prison yes or there wasn't that's why i asked about a shift change because that means so many have been a little delay i think probably because there was a shift change of the supervising officer and when shannon sharpe came in she said she went back and visited him did the same thing that she can do which did which is ask him to come to the door so that he couldn't and then she said ok we have to call the doctor so she got nurse mclean to go back to the cell and nurse the plane observed him again talked to him again and then went to call dr mina joseph and then after that anything  get into the the context and context matters especially in the cases that are deliberate different claims based only on pain so we have to look at the context and that's why i think we need to where i think lewis's counsel kind of mis characterizes the context we're in the state's most secure facility you know that the bench asked earlier what was what was what was his status he was in segregation status for a conduct violation for behavior problems ok yeah but i want to you answer to what is on the record is that within that security unit within that is a solitary unit the security protocol required and the inmates to come to the door to be restrained to go to the eight the health services unit in the record that is that that talks about going into the cell at the prison protocol the prison protocol this in the record talks about needing the inmate to come to the door and be restrained that's why there's kind of a that's why there was some delay here they had to figure out what to do it didn't fit in cleanly into the protocol he couldn't come to the door they couldn't see an obvious reason why externally so they didn't do an emergency extraction and they had to figure out what to do and put it have been done more quickly  have been called an hour earlier yes but that is not deliberate indifference and that is our position in this case thank you very much  first time around six am there is also this time frame that was discussed at by thirty nine is when he told officers that he could not move and that he was in severe pain there's even evidence that you kind of once went back and looked at video footage confirmed and it did show since five fifteen in the morning he did not he did not move and he claimed it was verifying what he was stating so he was in pain more than an hour and ten minutes it was three almost three hours if not more hours of that as for the policy there was a policy that the doctor stated that if he cannot comply with these protocols for safety measures to be extracted when he has a medical situation the only option is to send him to the hospital and that should have been done a jury could find that should have been at six o'clock and he had no history of violence that's another thing that the record does not show that he was violent and as to the segregation i had nothing about the prison information that's in the record to say that there is this general population versus segregated population i can't answer that because