they conceded that everyone who had personal interaction or saw this individual mr bowen on the day of his heart attack namely the correctional officers or officers who interacted with him and the nurse miss cassie we came to the district court in the qualified immunity issues with the administrators is everybody who interacted with this person personally face to face did not violate his eighth amendment rights now they do contend  that the physician's assistant who was on call and was making decisions about whether he should be transported to the hospital or not they do not contain concede that she acted constitutionally they contest that and that is not one of the  district court was the factually mistaken conclusion that e k g studies that are conducted at i m s side maximum security institution on the weekends could not be immediately interpreted well i mean just  to the chase it as i understand it the court said there were two problems one was nobody to reading g s on the weekend and a policy about transporting or not transporting inmates but even assuming the court was correct about that i guess my question to both counsel is what is the specific connection of these individuals shown in in this record to those policies that the court found problematic i did not myself see evidence that any of them was connected to either of those policies in a factual way and i'd appreciate every both of you addressed that and that was my next point i was going to put bring you up here on ars i'm going to address that i disagree with the courts the district court's finding of a systemic deficiency but even if when you assume that one existed what is lacking in the district court's opinion for any of the briefing or argument from the from from the other side addresses the issue of personal participation of the individual administrators as i understand it  looking at at the record the claim is that defense counsel of very strongly obstructed the efforts of plaintiffs counsel to develop to engage in the type of discovery that could have led them to amend the complaint or at least more properly and completely respond to the summary judgment defense filed a summary judgment motion the plaintiffs came back with a motion to to stay i don't recall specifically if it was under rule fifty six but basically saying look they've obstructed every effort on our part to develop discovery in this case please let us conduct this discovery before we respond the judge denied the motion for summary judgment but didn't sanctions of over forty three thousand dollars that is going to the defense counsel for obstructing the discovery process i think he referred to it as a miserable slog well what has what occurred was dealt with but the drug was dealing with was the e s i discovery what was producing its undisputed in the use of the discovery that is germane to the constitutional issues here is back in june of two thousand and fifteen internal investigation report dealing with this incident was produced that's over a year prior to the summary judgment in october of two thousand and fifteen the met the inmate medical grievances concern forms are produced my understanding is they had made requests for information communications between ideo c and medical provider the opportunity to take depositions and that those had not occurred because because the defense was dragging its feet in my mistake in the you are mistaken ok and the depositions of the all the administrators with the exception of run a secret have been done the e s i discovery they are focusing on deals with audits and sank and liquidated damages that were assessed against the medical provider and was part of our summer the summary judgment presentation the audit deficiencies that were found at i m s i the prison at issue we're limited to two issues unrelated to mr bone one dealt with the number of signatures on the narcotics log and the other dealt with the corrosion was not completely filling out the discharge planning forms when it when an inmate is just going to be released there's a discharge a follow up planning form given to them so they can seek medical care in the community after their discharged that wasn't being completely filled out or saying that the plaintiffs had a full and fair opportunity before they have a duty to respond to the summary judgment to gather the evidence that was appropriate for them to rely on and in filing a response absolutely absolutely and they also have and i think i think we come back to the question of the underlying so called systemic deficiency here is whether or not the medical delivery system can appropriately  its is a constitutionally appropriate to utilize an electronic interpretation rather than to have an actual individual read the strip and interpret it themselves and that's that's what the that's the factual error that the district court made is he concluded there was no interpretation whether well that's do we have to agree with you on on whether the co order for your clients to prevail no i don't think so but i think it's pretty clear the district court said there was no interpretation whether what you have  in the actual script that's true but you have you have the of the actual electronic interpretation and it very clearly diagnosis the heart attack the plaintiff's own expert witnesses testified that the electronic interpretation accurately identifies a diagnosis of the heart attack and i think what's important is i see the obligation of a medical delivery system under this court's ruling and hop to it versus ray because there has to be a system that affords the inmate ready access to medical care meaning they have to be able to be seen by somebody that can assess them or the person that does  has the ability and the discretion to refer them to somebody who can that happen the question is when as is recognized by the plaintiffs on experts when the physician's assistant was read verb eight i'm the electronic interpretation was told what they said what the patient's symptoms but they were getting meaning he was complaining of chest pain he was sweating he had pain radiating down his left arm and he was complaining of knowledge up coupled with the electronic interpretation at that point according their own experts that that medical provider who is qualified licensed to make this decision of whether to treat or transport had all the information she needed to make that decision and should have ordered the transport though according to that never even reached the second point seconds demick issue of not having a protocol for sending to the hospital because you're saying because of all this that was they would have sent him running again and the idea that there is not a protocol for sending the hospital is untrue what the protocol is is the medical provider makes that decision security staff does not and they cannot override the medical decision the person with the discretion in the authority to decide this patient should not be treated as a condition that can't be treated here at the prison needs to go to the hospital that was the on call medical provider that was ms barrett well maybe ultimately was she discounted the e k g interpretation in favor of drawing blood for cardiac enzymes well that cardiac the blood draw then has to be driven into the hospital same place the patient would have gone if he's transposed for testing when the nurse ms richards drew the blood she calls the hospital to make sure it's in the right colored test tube they tell or needs to be in a green test tube she goes grabs a green test tube draws the blood and places it in there unfortunately evidently there's different shades of green and when it gets to the hospital it's in the wrong colored tube from their perspective and they don't test it they don't call ms but ms richards finishes work she's doing in a couple of in an hour or two and then calls the hospital for the results and finds out is there any anything in the record indicating that any of the defendants before us on appeal were aware of that her had any connection to that absolutely none of the individual administrators had known they weren't there they had no knowledge any of this was going on what is very clear and from their own from the testimony of mr we have in this record the record about that dealing with the  contract should have been terminated that doesn't meet the kickball standards we then sent them discovery and ask them contention into rocket tories for each individual administrator saying what did they do wrong and they come back with the same basic elements of an eighth amendment violation we take mr bones deposition and we ask him these same basic questions and he admits a number of things three key things first he admits none of the individuals are personally involved in the medical care and it's true none of them ever seen him him or seen his medical file there's no reason for them to see his medical file second he admits that none of the individuals did anything that influenced the medical decisions that were made on the day that he had his heart attack third he admits that none of the individuals were in possession of any information that could have alerted them that the medical care he received that day was going to be substandard in some fashion down so you're down to under a minute did you want to save some rebuttal to me i would your honor thank you thank you in mr brown had a heart attack while at the prison in boise idaho and his transport to the hospital was delayed by more than five hours primarily in precisely because the defendant's belief here did not require the medical provider to have a person on site after hours or on weekends to interpret where in a generic sense the entity did not but as high as i see this i don't see any specific culpable action or inaction that there is evidence about any of individuals being in a responsible for the two policies that the district court identified as being problematic it's not enough to just say well you're the warden of the prison and things got messed up under your watch it has to be it seems to me more precise than that well in the record your honor it's undisputed that it was the policy of this prison in this the health care provider to have no one on staff on the weekends or after hours to read any kedzie it was also the policy to present policy and i guess what i'm trying to find out is what other than saying you have the warg or you're they way the head of the department of corrections what what is the connection between these individuals and that policy and were were they aware is there anything in the record that shows that they were aware that having such a policy if there was one where is unlikely to cause an eighth amendment violation that that there that they were aware of the problem and ignored it when this case was appealed we were in the process of trying to engage in that discovery as judgment noted there was substantial obstruction that went on and i'll tell you i'm sorry go ahead i'll try to answer the best i can your honor i just want to point out though that as i read that the district court's opinion they've heard is not granting or denying qualified immunity as a sanction so whether there was obstruction earlier or not as i read the court's decision it was i'm looking at the facts and i don't see qualified immunity so in that i'm not sure what the relevance is for myself i just guess is just so the  records clear here no the judge the district court made a decision based upon disputed facts there's no question about that saying that there were disputed facts from which a jury could determine that that these these apple  could be held responsible for what happened to mr brown in the delay in getting him to the hospital now i want to make sure that the court is aware of the fact that when we had not deposed miss siegert who was the person primarily responsible for overseeing horizon we had been seeking all the communications between horizon and the department of corrections and those had not been produced in fact what we learned in discovery was most of it had been destroyed in the court made a finding  on the destruction of those records that there would almost certainly be an adverse inference instruction given to the jury the because of the destroyed communications those could be considered to be adverse to the defendant do that he should have done that contributed to this that's in the record like completely well all i can tell you that's on the record is that there was this systemic problem of not having someone present on the assuming that's enough of what what is there to to hold the other defend well mr rank it was the director of the department of corrections and i think w to be personally responsible it seems to me quite counter to the cases on supervisory liability that you are not responsible for the problems of your subordinates you have to be personally be different between the governor and the you know director of the department of corrections well i think the record shows that there was a systemic problem at this prison and it went on for a long long time including this specific provider  facility there's a history of the department assessing hundreds of thousands of dollars of liquidity damages every year for failure linked to provide adequate staff and i think i mean i i somewhat understand your with respect to see her because she was personally responsible for auditing and watching over them but all the other people i don't i guess i have difficulty seeing on this record what connection they have other than we asked and noticed a depositions of thirty six of the entity itself and miss seeger and the defendants filed a motion for a protective order to prevent that from occurring it never occurred the court ordered that it should occur and that's that that that that we can't make a decision because the record is you know i don't think that would be if i could i could not make that argument here on i mean i think i'm stuck with the record as it is and the record as it is and indicates that  we we were on the verge of taking it up position of a secret at thirty six the department when this appeal was taken in the court below made a finding that there were disputed issues of fact that could go to a jury and that we can finish our discovery  immunity determinations are on and in you know nothing has been completed other than the things that the parties wish to do by affidavit sometimes but  you know if i if i might i mean i think this comes down to the these the police argument that they had an adequate machine in place but the what what it really is is they're saying well this p a who was offsite it wasn't required to be at the premises on the weekends made a decision and her decision was based on the fact that she was read the e k g and didn't actually see it in her deposition when she was first show that you could see for the very first time she said well if i would have seen this i would have immediately sent him to the hospital well there are some in as i understand the state of the case there are some individuals or at least one individual who's not appealing so again like i said she she testified it or deposition when she was shown the e k g for the first time that she had she seen it had she been on the premises had they required anyone to be on the premises he would have immediately been transported but g i'd go back to what i think this court  said in the hop to wit case which is cited by defendants that the eight the memory requires prison officials provide a system of ready access to adequate medical care access to the medical staff has no meaning if the medical staff is not competent to deal with the prisoners problems the medical staff must be competent to examine prisoners and diagnose illnesses and must be able to treat medical problems or to refer prisoners to others who can such referrals to other physicians within the prison or to physicians or facilities outside the prison if there is a reasonably speedy access to these other physicians or facilities in keeping with these requirements the prison must provide an adequate system for responding to emergencies if outside facilities are too remote or too an at and accessible to handle emergencies promptly and adequately and the prison must provide adequate facilities and staff to handle emergencies within the prison that's from to it six eighty two f second at twelve thirty seven at twelve fifty three i know that there's been some in the briefing there was some argument that that the standard that the supreme court's recently espoused in the fourth amendment arena concerning factually specific cases be present here but i would point to what's been widely held in eighth amendment cases that for purposes of qualified immunity a legal duty need not be litigated in established disease by disease or injury by injury that is a seven problem where they knowing that it was going to be a problem and didn't care so they may not have realized i guess the meaning of the problem yeah again your honor i think  it's the liberal in this of their decision was the decision not to require some of their to be on weekends it's certainly within their but they have to know that it may be a problem they may have for example that it may be the policy to have two people on duty and one day they need six but you have to somehow show that they knew that having two would be a problem not just that they were deliberate in having t this sort of setting would anticipate that someone might have a heart attack after hours or on weekends and that they should have someone on staff at the site who could who could accurately interpret counsel in his presentation made in admission but i think is that we agree with what i think is controlling to this entire appeal they said this whole case comes down to whether or not there was somebody there on the weekends to could personally interpret interpretation to a medical provider who then has the qualifications professional qualifications and the ability within the idea of the system to make the medical decision to transport this individual to the hospital the question is what is the intersection under the eighth amendment between tech and medical technology and having somebody face to face interacting with the patient and i would point out to you that we put out our brief there is no case law that i'm aware of nationwide let it be let alone this circuit that has addressed this issue but we do know is in this case according to the plaintiff's own experts the medical provider barrett had all the information she needed to make that initial medical decision is easy moderate the ha at the in prison or is he transported to the hospital they agree with that so at that point whether or not the fact that she had that information and could have and should have made that medical choice is undisputed in this record and what isn't thank you i think we understand both parties positions an