the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and th person with serious medical needs in his condition is very poor the commissioner has recognized that in his granted him a medical parole but we are asking you today to find a district  proceed we would just like to know about the present status of the case and that involves two different things the st is  meaning of medical her role and the nd is the status of the requests to non d o c hospitals to provide number of medical facilities whether they were willing to provide such treatment and that the answer was that none of them were is that the present status and then please go back to what medical parole amounts to service i get it it's the st question also give us an update on what's time each one of the forty five facilities that were contacted he's indicated sorry no we can't accept this individual as an admission and that remains the case now on the medical parole piece this is important so  fairly recent new law which is a great thing a lousy now for individuals that really don't need a prison type environment to apply for a release from the prison environment and to be placed in a when judge thompson asked you about the connecticut cell at eight your answer seemed to go to the question of institutions rejecting him however you now say that under medical parole there may be a connecticut facility willing to accept him do i understand act correctly that's exactly right ok so where does that process stay and has he been accepted have provisions been made this case and that we're not prone to decide things including especially constitutional issues if we do not have to do so could you please bring us up to date potentially excepted does not have a spinal cord injury specialist on staff so his placement there would actually violate the existing court order and even if mystery's were placed at this connecticut facility on medical parole if for any reason the parole gets violated then the potentially be returned to the department of correction which would again potentially holes in contempt of the court's order because be back with the department of corrections so the case is not move your honor i didn't start we will decide whether the case is moot that i was asking factual questions and i don't have an adequate answer yet what would be the reason to transfer him to this connecticut syllabi and do plaintiff oppose this transfer well that's unclear your honor through an earlier part of the litigation mr reeves received a monetary settlement from the prior medical contractor in the amount funds that he has makes an intelligible for mass health however if he were to secure the funds in a special needs trust he would then be eligible for mass health and there would be a public insurance option to fund his stay at the connecticut facility to date he seems disinclined to do that and so he's ineligible for placement there for that reason ok let me go back why are you considering this place t well the he applied for medical parole in the commision to determine that he's a suitable candidate to be released from a prison setting however there needs to be a place for him to go where he can be  medical needs and so that's the one place that's been able to be found that's willing to consider accepting him as an admission there's no other place that we've been able to find and so because of his needs he quite as placement are i thank you we will obviously have questions for your opponent about this if you would turn back to the merits of your argument if you  don't mind reordering your argument rather than addressing the th amendment issue could you address the remedial issue as i understood it you violate state law the commissioner is duty bound by mass state law to retain mysteries in custody for the duration of his sentence there was no evidence that this five minute by the time of the nd sixty b most of the district court abused its discretion upon learning that each one of the forty five dollars massachusetts facilities declined to accept mysteries as an admission and  outside person coming in to treat him yes yes yes yes i'm sure something like that could be worked up but the point is it wouldn't comply with the court's order last if i may have a moment to adjust deliberate indifference your hon as i know most out of time yeah go ahead go ahead thank you so the biggest is you to raise here is the subjective part of the analysis of funder of the court and its findings made two areas with respect to stephanie commons it found that she had the ability to move staff around and she had received tributed accrued to her as being whether she follows recommendations of specialists in the airport foundered so you put it not all the time the reason i think those are important is the they go to the mental state and stephanie collins which is what really has to be grappled with in making a finding of deliberate indifference nowhere in the record does it say that stephanie collins had the ability to move staff around so that was never running as finding and she never uttered those words that she doesn't follow recommendations a specialist alla time she did not say that a different witness had responded state of mind and willingness to take maybe reasonable measures that might otherwise be taken when she didn't have the authority to move staff around and she did not have that outlook i don't merit on the merits i noticed the district court specifically found that dr cho recommended a year of dynamic study and eight criticize therefore your client for not having followed that recommendation and your brief makes sci specialist is a critical component of the care he's not receiving specialized care and your grief makes no response to that for those three reasons alone wouldn't we be justified in finding that there has been an eight and then by a lation with with specific recommendations of needed medical care and no explanation for why it's not being provided no your honor there were multiple recommendations from dr stephanie cho who remained in the case as a consultant and that's evident in the record made a number of recommendations that were complied with through mr b s was offered the use of a recreational gurney believe me we know the record in this case could you go directly to the series of questions so i asked about status st do you dispute that more than  forty five agencies when dio see inquired as to whether they were willing to accept your client they said no do you dispute that i have no ok then moving to the medical parole issue and the connecticut is still at eight could you please tell us your point of view on that and of course if that answer some of the questions we asked your opponent yes your honor we think it's critical that just by the fact that the department was unable to find a placement a placement has indeed been found in connecticut they have formally accepted mystery vhs for care his medical parole has been granted that for all has been transferred to client has not been willing to make it financially possible for the connecticut facility to receive insurance payments so those i would ask you to address this matter so regarding the availability of specialty spinal cord injury care at the connecticut facility it's correct that they do not have a spinal cord injury specialist on staff is not a spinal cord injury care specialist however there is a spinal cord injury care specialty hospital within fifteen minutes from the facility gaylord hospital and they have indicated willingness to treat m in an outpatient basis to the point that mr o'donnell raised regarding that set up technically violating the court's order  judge hellmann has remained very involved in the process of placing mystery you send the painting medical parole he's well aware of what the status is and has already in  it would have been easy for there to be a modification of the order but it has not been done why is the base as for your statement to us the transcript of yes and the reason that the amendment has not been finalized is because of the difficulty that have been encountered by both sides in finalizing a placement for mr reeves and there the court has been waiting for to know what the final plan is before amending the order or determining if he can amend the order to allow for that plan to occur  potential plan that was under consideration all along there would have been quite a few amendments what about the money i'm sorry i don't know yes thank you josh thompson again mr o'donnell is correct that there are financial arrangements that need to be made regarding the monetary settlement for the medical contractor and mr reeves essentially has two choices he can either spend the full amount of the monetary settlement on his care until as judge thompson suggests that he has no money left and becomes financially eligible for public assistance or he can put the money in a special needs no decision because he hasn't made what country that what the holdup is scuse me part of the hold up has been again you know not knowing where he was going to be placed was going to be in massachusetts was it going to be in connecticut he hasn't he hasn't hasn't this connecticut placement been available to him since march the connecticut placement accepted him in january the you know it's a number of issues have contributed to that hold up it's my plan to meet with mr reeves this afternoon and my understanding that he may now be willing to  finalize a special needs trust for that money counsel the message that we're being given is if the details can be worked out it appears that this connecticut placement would satisfy your concerns that leads me to the question of whether  should just remember this matter to the district court to provide whatever assistance would be helpful to getting this matter resolved on the terms that your client seems from your representations he would be willing to accept this can be resolved what do you think about that idea well i think the existence of a placement for mr reeves to be transferred to does the defendant's claims of a possibility i'm in agreement with mr o'donnell that it does not move findings and deliberate indifference both because he currently still is within the department of correction  because should he be returning from medical parole for a violation of any type all of these same issues would remain yes it that that in that case it would be a different situation and front of this court and a far different factual record you lost your damages claim before the jury that's gone the only thing that is left is the rim a deal order and it looks to me at least i will not speak for my column that you may be able to work out the question of remedy without this court having to make unnecessary the law and indeed it would be the fat assed as a way of getting relief to your client and he comments i agree that the remedy appears to be well on its way to being resolved and that that would mean that the court does not need to make any rulings on the defendant's claims regarding the remedy so w that because of the potential for mystery of still be brought back into the department's custody where all of the same issues i believe wouldn't fact face both mystery of sand the department the court perhaps you can allay them that there do seem to be instances where the d n c received a recommendation it did not follow it and then they've given us no explanation but there are others that it looks like they they may have followed it more importantly it seems that the court jumped from its action way too soon to afp or something like a release should the court ha do a b and c and then if they did not do a b and c proceeded perhaps to contempt but it seems the court never specifically ordered the g o c to do all these things it just jumped right to release him so someone else does so not that that's very concerning yes as to the recommendations that are claimed to have been followed you know it's true the department followed dr cho's recommendation that they not give mr reeves showers and followed some other recommendations but the the record in this case and the evidence before judge hellmann was incredibly detailed and focused on so many different aspect  my question is simply as a matter of equity shouldn't the st step taken by the court have been to issue an order to do those ten things and then if they didn't do them then up the ante i understand your question the judge's preliminary injunction order they really seventy pages in great detail describes the failings of the department of corrections medical care for m can cause that would be an example of taking an interim step which is i think what you're trying to say before getting to final but the plane junction didn't order them to do nice things that we're talking about most it did not specifically give  list of items to do but it made quite clear that the court found that mystery of switches likely to be successful in fact in proving that the department failed in all  ways that he described in the preliminary injunction he then appointed a monitor who was to monitor the defendants the medical defendants then stated commitment to improving the care  was the process by which she was to receive the information and the requirement for monthly report so that both sides provided records and status reports to the monitor and the monitor then reported monthly to the court the monitor noted numerous failings on the department's behalf and the court found at trial that the care had not been improved in in so many ways that he found that they are in fact slowly killing my the various reasons stated that there was no eight's amendment violation then your remedial order disappears and tiredly and you are back to scratch when at the point you could voluntarily agree that you are going back to the district court to work out as modification of the court order and this placement it is true then that if your client ends up violating the terms of medical parole and he would have every incentive not to do that that he then would be returned to the department of corrections it does not follow at that point that every issue you have raised thus far is part of that case which would start with your having to show that the violation of the terms of medical  parole and the return to custody is somehow a violation of law so again this court is trying to find a practical solution to this problem which doesn't all involve unnecessary making of law which true we do not need to make so i'm going to put the question to you again an alternate path so may i have your view your honor i believe that the defendants have not shown that any of judge feldman's findings are clearly erroneous it is our intention to work and what we've been doing to work to affect compliance with the judge's order  and it is you know it's my hope that that will soon happen and the move to the car and in terms of your hope that it would soon happen in the absence of a rematch and order are both parties none the less proceeding to make it happen such that you should give us a status report and safe forty five dollars days as to whether you have resolve these issues i think that would be appropriate certainly the pla working to make the transfer happen and i believed the department is willing to cooperate well how i would ask after you have finished i will ask your opponent are about that option ok thank you i must say two of the questions about my questions have been about the appropriateness of jumping to the particular remedy sooner they were not meant to imply that as a result of some very impressive amount of effort on behalf of mr reeves you may we the care provided was inadequate and and repeatedly so across a broad range of the areas but i think that's a separate issue from whether the particular remedy being ordered i think that judge tillman came to the remedy of transfer not not too quickly and he he came to that the partly because the violations are so extensive and cover such a broad range of mystery of scare and of what happens inside prisons so in fact  the order to transfer mystery is probably less intrusive then then any injunction that would have directed what what was required to comply with the constitutional standard of care ok any further questions of counsel we would like to see from seek counsel for the department of corrections again please thank you right mr o'donnell you are not to argue the merits again you have heard your opponent say that a status report in forty five days to this court would be acceptable to them while you and they try to work this matter out is it the acceptable to the yes all right thank you  nothing further now that concludes the argument in this case attorney's adonal and pettitte you should disconnect from the meeting at this time