rising out of forty nine incarceration of the appellant melissa richmond in the wayne county jail the first issue consists essentially of the violation of richmond's clearly established right to receive the entirety of care that was ordered while at the wing county jail right that has been clearly established essentially since the court's ruling in one thousand nine hundred seventy six style vs gamble case the second issue before this court is the right of miss richmond to receive timely access to her psychiatric medications for known serious psychiatric illness that was unrestrainedly delayed for a period of approximately three weeks due to the or i should say despite actual knowledge of a serious psychiatric need  deliberate and reckless disregard of that actual knowledge of serious psychiatric need and practice of the wing come to jail in withholding if you will access timely access to some but not all inmates at the wing county jail was there conflicting testimony on that issue as to whether i know you they would assign them to the mental health inpatient mental health outpatient what wasn't their testimony that the practice was to call when an inmate comes in and has drugs or prescription the practice was simply to call get the name of the pharmacy call the pharmacy and provide the drugs and was that only if you went into the inpatient or did they sometimes do that and sometimes not if you were outpatient mental health unit it's it's really neither what happens is there is an initial screening booking  the screening is sensually takes place by a jail social worker the social worker who takes down a history and if they have history shows that there is a psychiatric  condition need treatment medications etc then that person makes a decision is this somebody that should be in mental health unit as a new patients so to speak or mental health outpatient they are the gatekeeper if you know it's questionable whether that is a person who truly has the ability to even make that distinction and the reason i say that is because of  mates precisely like miss richmond not who may have had a condition remotely in the past something a history of psychiatric illness or mental illness remote lee in the past taking medications in the past this is a contemporaneous history the history was that she had taken her psyche psychiatric psychotropic medications the very day of her arrest and that  was actively under the care of team mental health if you know as of i guess what but what i'm trying to understand is the social worker that does that intake somewhere in the record was also called a psychiatric social worker is that right ok so that person then makes the division inpatient outpatient i understand that is there not a separate i know in many other cases we've seen it and i thought there was discussion of it by the gentleman the first intake person that said that we will take intake will tell us they're on prescription drugs we'll call the pharmacy and we testified that it was nurse father's job to do it at intake so there was a complete failure to follow the most basic commonsense protocol in this case in addition to to  ms richmond having taken certain psychiatric medicines that day did ms richmond indicate or anyone indicated on her behalf that she had a particular diagnosis of a particular mental condition  as well as depression anxiety and the most immediate cause of her presence in that it was a self inflicted second to third degree burn so it's clear that this woman had some psychiatric  issues in place here so why is this not a negligence case as opposed to a deliberate indifference well it's a deliberate indifference case because the standard is very simple when it takes two forms here because we're claiming individual liability on the part primarily of taare on this account as well as a mono claim for the poly or for the practice of the wing county jail but first and foremost is the individual  tare who had actual knowledge of a serious psychiatric need and recklessly disregarded that substantial risk to inmate health or safety remember he is advised that this woman has a serious medical or psychiatric condition i even asked him i says is an hallucination isn't that important he says well it might be or might not be something well if if you were to focus exclusively on that one point if you will then yes maybe it would be i mean if it was something ten years before but we're hearing it in a  psychiatric psychotropic medications in the in this is not just something well geez i have a headache i should take two aspirin i'll feel better but you know notwithstanding that why  again in terms of individual liability it becomes i mean what is the standard for to liberty indifference the liberty differences what did you know and what did you do and if you have actual knowledge and you are recklessly recklessly disregard a substantial risk then that is by definition deliberate indifference or if there's a question of fact that's for the jury to decide so i guess i'm the face of it alo what it would be ideal if people could get their medications right away including this richmond presumably but that's just out of my hands that's a quote why because we have a backlog here we have a backlog of three hundred mental health patients and for that reason it just simply takes that long for a person such as richmond to see a psychiatry now why does it take that long that's ridiculous that's not someone who might be at risk that is a person at risk she has known psychiatric medications and it's an unconstitutional practice not least of which because of the duration of the amount even though there's no red line so to speak because there is no reasonable basis for this rule or for this practice because it's so easily abated all you have to do is call the doctor call the pharmacy to confirm what we already know by virtue of her own history that i take these medications so there is no rational but listen could rule for this practice couldn't the jail be sued if they continued the prescription of dr x on the outside and it turns out dr x on the outside is a jerk and doesn't know what he's doing is giving the wrong meds no because what i am suggesting is that a simple phone call to the doctor who prescribed i'm staying hypothetically that doctor is the incompetent doctor prescribing the wrong meds for somebody who's bipolar and if the jail continues those meds without doing an independent evaluation wouldn't the jail be liable for doing that and the person acts out for whatever reason it's an interesting question interesting hypothetical but i would doubt very much that there would be a violation of the standard of here if you will which would be basically a medical malpractise  case as opposed to even approaching the level of of constitutional violation so i don't know that that is truly something that the county would have to worry about exposure on  that regard i know you have another claim in your yellow light is on already so if if you would explain why there is a deliberate indifference claim against any particular individual for the  formulation of the issue here the issue is because we have no issue with the here that was ordered she had a right to receive the care that was ordered that's beyond dispute but i thought there was a dispute as to whether or not it was the dressings were to be changed once or twice a day it's really a matter real dispute because it was the first order was given for one steely changes and then it was increased to twice daily changes entitled to the two i'll do it myself she wasn't even provided then until a month later so for purposes of the discussion i will grant that beginning in january twenty third which is still three weeks before her discharge with no this discontinuation of that order she doesn't get anything now she is given some materials to change the dressings on her own and whether or not that was substantial to last the next three weeks i guess is unknown precisely but the fact of the matter remains that given the what she was ordered and what she received she was deprived of literally eighty percent of the care the changes that she was ordered so who you know in terms of qualified immunity and individual liability which was the district court stated that i did not establish individual liability but the only way the district court could draw their conclusion is by ignoring plaintiff's favorable proof which consisted of it contemporaneous log of events written at the time the events are being described it was about twenty pages in length i had to which is attached as well as the sworn  deposition testimony it was totally ignored by the district court in rendering his decision but but so pathetically i am curious who was responsible for what in your view exactly so i go from the general to prisoner confined in the state system over a long period of time it's very difficult to know anybody's name ok they don't we're big name tags that say hello my name is so she knows she's being  denied by particular individuals by virtue of their eggs their their language their their words and their actions and with the benefit of hindsight we know now who nurse x s and near as well  against the medical chart as to who had interaction with her during that period of time and in particular there was a nurse lineberger who was aggressively chain trying to herd her least according to miss miss richmond her log her deposition testimony and as well as references in the chart itself so your unfortunately your red light is on and we will certainly allow you to rely on your briefs and give you your argument in rebuttal but i and you the judges have any further questions otherwise i think we should hear from the other side moving on to the burn wound i think a judge more kind of hit on the head is that it's important to realize that once a prisoner pretrial pretrial the teenie as mr richmond was enters the wayne county jail they become the patient of the wing county jail and the reason why this is important is all the medical testimony in this case is that as doctors and nurses we have a duty to to complete an independent gnosis regardless of what an outside doctor may have said days weeks or months and it's precisely for the reason that we can't just simply say you can't rely upon an inmate self reported medical history whether what you have or even though you have that duty that  happened due to complete that independent examination timely and if there is a situation where a detainee if at medical risk you know she didn't have either drug or most people don't run around with other medicines on them well for sure but yet remember miss miss richmond was at a family party all day before her arrest so you'd think that if she'd taken it you've taken it in a woman well and i want to speculate but she does the first thing so it may comes in with prescription it says my name this is what it is you know what the wing kind jail normally does is allows you to take the rest of that until we can get you an independent evaluation now the problem with prozac for example right so miss richmond comes and says that she's taking these drugs or these are very very powerful drugs and richmond doesn't have them on her ok and all of the mental health side of this case all testifies you know what inmates come in all the time and misrepresented or misunderstood you also have the comrie testifying that that the jail has called when someone comes in and doesn't carry their drugs on them then the jail ask that person who should doctor who should pharmacists and then they call i mean it's one call to find out but do but the record reflects that that call was never made isn't that being something that's regularly done we've seen that in a bunch of cases fowler did the intake clacton who was in charge of everything says its powers job ok it's fowler's job she can't call at nine o'clock does she enter in the record place like this call our am back tomorrow my call tomorrow or next person in the electronic medical records needs to make this call you know she was in is it the pose any one or it was in charge of mental health this retard is going to talk of his experience we make the argument well mr meth tare is the gentleman to whom you have entrusted the psychiatric review when someone comes into your facility so i'm hard pressed not to assume that that is your choice and you've made it and then his actions are your responsibility  evaluation doesn't he notes that placement reports that he's taking these drugs in the past i mean you have huge of i did a long evaluation is a long narrative he testifies i see no signs of withdrawal from psychiatric medications don't know if you're really taking prozac or xanax but i can see that you're you're just you're generally in distress so i may get your appointment with the only person who can give you psychiatric medications which is the psychiatrist so mr move tare as a social worker can't prescribe medication he can't go run to the pharmacy and hand it to you and say well that's what you're saying you're taking he has to rely upon an m d to make the call ok so mr understand that so the question becomes is there a policy or is there not a policy to follow up with the inmates doctor or pharmacy to obtain the drugs through that facility through unofficial doctor or through an official pharmacist for that person to continue to take them because point for example just like i was i don't think anybody disputes that what we're what i'm trying to figure out is what's the policy the party talks about calling the pharmacy and client cla that it's like he's really think it's because there are cases where they call and there's case they're not they don't always work but it goes back to the fact that the wayne county jail mills there has an independent obligation to evaluate despite what outside people may have said you know and it's liability issue and it's the patient it's a it's a doctor patient privilege thing so when i go to one hospital and they give me a course of treatment and months later go somewhere else the second hospital isn't necessarily bound to follow you i'm just in that i guess i'm just struggling because then this means that your response is if the end might shows up with the prescription medicine on them they may take it if they don't show up with the prescription medicine on them you will not call the pharmacy to obtain it you know it happens it happens like yes but cases where they think it's necessary to call you know again like sometimes it's all in the you know it's like well if you come in and you have a you have a big scrap you know a big gash on your you like the feels that was it will i don't need i know how to treat this i don't need outside of kabul say somebody comes in with somebody comes in with a diabetic condition and they don't happen to have because they stepped out of their house to investigate why some event was happening in then that's when they're arrested so they don't happen to have any diabetic treatment materials on them what would the power see of the wayne county jail is a woman who has been taken to the hospital before she's brought to the jail because when she was arrested she set herself on fire in the back of the police car now that's indicative of pretty significant mental problems would you concede that sort of content of point want you know she was also when it happened so i mean it might be difficult parsed out like what is responsible for what but i mean but it's got to be something that the jail would consider by case basis you've said that repeatedly in the face of questions about the jails policy and i want to go back to that because somebody somewhere has to have responsibility for these people who come into custody and i want to know where you assert i mean if you're if your statement that the policy is that there is no policy and people at the jail on a case by case basis make a decision as to who these people coming into custody if you're if your statement that the policy is there is no policy with respect to how you deal with these mental health patients i mean my i guess the this because i didn't know until i filed my summary judgment brief that this is what we're talking about and we'd already taken a depositions in this case so i mean now the only source of what we're talking about we don't know whatever post dr henchman which was a good person to talk about with the knowledge works in the best answer i give this case by case basis depending upon what the doctors are seen some things that doctors can see you know that look i like to see the emergency room record so i'll call over to the hospital and get that sometimes a while i see what this is i said next race broken bone i don't need to talk to the outside doctors so it's kind of like it goes back to the theme that the wayne county jail is not necessarily you know when medicals have an independent obligation to do to treat you regardless of what what you may or may not have done on the outside and so what dr claflin dr huck talk about especially in the burn woman thing is that look we're just as qualified as medical professionals as this emergency room doctor is to treat a burn you know and you know and just because there was an emergency room or you know or you know you know when wherever this charge instructions two weeks ago doesn't mean like this is relevant to my practice right here yeah and i understand that because the record does show clearly that they chose one until the january six in january eleventh one one dressing change a day but then they did not implement one dressing change a day and your opposing counsel argues that the case law says that a an inmate is entitled to the ordered care and this was care ordered by your facility so what is your response to why it was not deliberate indifference to fail to change the dressing on a daily basis rather i address it was change for the most part on a daily basis well the most part is not the question i think there are several days in a row in january before she purportedly took i'm fine no i don't think you need to address that because i think it's clear that they came in and you said woman and so let's let's assume that you are correct so i'm asking you why it was not it's seven thirty to three three ok and the way this works as a medical record keeper you know not in there us will enter into the computer telling the sheriff's department that you need to bring down this inmate every day to the clinic you know it's all that's  computerized system right and so the way a person would come down the clinic is not because a nurse goes the nurse isn't going up on the floor it's going to be a sheriff's deputy you know take an order from computers saying ok it's eight o'clock every but you come with me we're going on the clinic right so and there's of nothing to do with that nurses are there they're assigned to duty is there's five six seven of them there in the shift and you know they're given their assignment sheet like you're doing these people you know so when a nurse is sitting there and says well you know  you know at least one time so it's noted that there were a number of times she missed that were not explained well first well so so assume that there were a number of times who should be responsible for that well i don't will we never i guess we never discover the answer to that question in this country but with the way this works is that if there's an order and the sheriff's deputy is supposed to bring you down right so that one of two things can happen a sheriff's deputy can forget to do it and not get you you know one is nobody identified you know we never talk sheriff's deputy could just choose not to do that sure if somebody could choose not to do it or the person could refuse and say i'm fine i don't need to come down but the one thing that can not happen is that the inmate that he came he cannot just choose to stroll down to the nurse the thing to get the that's the one we know come out happen in that institution this is true this is true so what it would mean are you mean this is a labor of difference case we're looking at individual people and it's like yeah if the sheriff's deputy just callously decides that i'm not doing my job today that person needs a good suit because these nurses are responsible how on earth would approach on earth would a prisoner know who was denying them the opportunity to get the dressing changed the clinic as judge donald has pointed out she ms richmond cannot choose to come down to the clinic she can beg to come down to the clinic but if they don't want to do it because they think she is somebody who set herself on fire and is mentally ill they may not do it and if as your episode has said it is not likely that nurse jones whose job it is to take her down today it's unlikely that that person is going to go to her fellow whatever the famed good morning my name the first jones i'm supposed to take  clinic but i'm not doing it that's not one of the things that's going to happen so the question is how is she going to know who it is that's either intentionally choosing to deny her that right or who is just dropping the bomb how  whose job he has how does she know that it's you know john been sujoy how does she know whose responsibility it is to do that and who is abdicating their job responsibilit that she'd be treated my problem is if if we accept that you have the right to order medical care which is your position then you also have to accept that it's your responsibility to see that it's completed and and i don't see that having occurred on all of the dressing changes nor do i see it on the pain medication because i understand that there's a medication call where where the nurses go and deliver the medicine right well the prescription from one county jail is that she's to have a lower tayeb one tablet every eight hours but if you look at the information in the records she did not receive three or four tablets a day retain lee she did not in that was her other complaint that i can't get pyne medication so they are you're supposed to take it to her so why is it not deliberate indifference to give her one lortab one day when she's supposed to have one every eight hours on her part of the well has wanted then assuredly under the law it's your responsibility to say it's completed so help me understand why it's not deliberate indifference for you not to have taken the lortab to her every eight often don't it wake them they give them pain medication indeed but i don't see any notations in the electronic medical records that plaintiff was asleep while i mean it would be that the nurses didn't notice i mean they're only writing down when he actually have given it and some of them some of the medical records show that during the day hours there was only one lortab given all day long isn't that in violation of your order when the real question here is when do you step over the line between just messing it up and qualifying is deliberately indifferent and the issue here is are we not at that material dispute of fact as to if you designate the shift on which the service was to be rendered and you fine day out who was the person assigned to that shift that's an adequate it benefit pension and that's exactly what the reply brief does well your honor i don't  certain shift you had the day shift in the afternoon or evening shift the reply brief in fact does that all years means that right on i think it was one that was on night shift so we only have to observe our own orders and then the response to that is you can't tell me who didn't do it i think if you're in charge of a jail you don't get everybody doesn't get to step up to the deposition  desk and say not may must have been them to do so they are no must have been that person if you run a different nurse every day through the day shift then isn't it the jail's job to a sure that the dressing that needs to be changed during that morning hour is done by the by the the nurse on duty otherwise it's it feels like you're creating a system that side that you won't let any of these people go this is such a complicated case because you kept everybody in well what if they kept everybody and because everybody blind to everybody else then the question is you deliberately indifferent even if in your structural method of implementing your orders you fail to sure that they are implemented and then were in mono land well i mean there's certainly get a morning dressing a day dressing change which should have been in the morning on these days here over the nurses that were in charge of the f one two three four five they are the people who did not do it is your answer that that well we ordered it and they were supposed to be the ones to do it but it's the sheriff's fault when i'm struggling with that i think it's kind of you know i  sometimes it's hard to find the right person but you got to find the right person it's like if the reason why was the richmond did not come down to the jail clinic on a couple of days not to get a daily drip dressing if it was because the sheriff had an order to do it and didn't do it you know i would see that is the person calling back the reason why she's not getting what you want you didn't this person in the chain of command in the well but you could you could say that the policy has to be changed or else the medical people should be liable for not assuring that their patients are brought down so so they should have a record of how many times melissa richmond was getting the dressings changed and when they see on a daily basis that she's not coming down hypothetically then they have a duty to say aha there's a glitch in the system we know melissa richmond needs her dressing changed every day because it is a serious burn and therefore we're going to step up and tell the sheriff bring melissa richmond down well for sure i mean that sounds like a reasonable solution but again i think there's a gap in the case where we you know we nobody went down this road that probably should've been explored you know so i'm looking at this case of the the eyes of you know career nurses who come to work every day we're going to seventeen a person facility you know with you know you know it's a very difficult job in a high volume job right and the only ways and the way can work is if everybody's doing their job and we have an assembly line kind of thing and so you have a vested interest in making sure that all of those people are impacted during their job and forcing the orders and you have an interest and them up by those who  not enforcing the orders are doing the job first sure i mean is that it's difficult to extrapolate from mr richmond situation if this even happens on a regular basis like again the nurses testified who don't you know don't do this job like well we're going to guess that if you don't come down on the morning shift right so the idea is that if he's a court she's supposed to get change on the afternoon shift that's a different group of people you know that would have done that but it case that she's missing it on the morning shift right so the nurses like i don't you know important questions in the case well i must say at the outset i really haven't processed and appreciate the breadth of understanding of both the issues and the facts that you have x display just by virtue of your questions and i really have nothing more to add last you have specific questions for me but i do think of course that defense counsel basically stated that there is no policy at the wayne county jail with respect to inmates getting time the continuity of care based upon the timely access to their medications it's a ad hoc policy it on a case by case basis and for that reason and all the other reasons previously stated i would request the court reverse the orders of the district court and reinstate this case thank you thank you thank you both for your argument the case w