please the court my name is alicia lopez and i represent the estate of record i'd like to reserve a good three minutes for rebuttal time if possible this appeal concerns the th amendment right of pretrial detainees to adequate medical care and to freedom from punishment the facts of the case are particularly harrowing and they were notably not taken in the light most favorable to the plaintiffs by the court below for that reason i would beg the court's indulgence while i briefly summarize what we actually alleged here on january th two thousand and sixteen records he's was booked into the santa fe county jail where he informed the intake nurse that he was a heroin addict who was going to quote chick real hard from his withdrawal another inmate who was present at the time reported that he already looked ill that nurse access to rick's records from his prior stints in the facility and she confirmed a long history of heroin and opiate addiction and hepatitis c could come as one foundational question before you get too far in should should we consider the kingsley case it really wasn't raised below probably subject to plane air but  if it is subject to plane air you you want us to apply plane or review and apply what an objective standard here indeed we do and if we did brief that so i fully concede we didn't brief  below we briefed it for the st time here and we believe that the supreme court the well settled standard is mirrors that of the clearly established and under qualified immunity and we believe that you know we echo this court's stated view that no go bruno wasn't until last year it was three years after king's well yes this is it a problem that prog three a player and the words is a substantial effect on your client's rights well it would only  substantially affect the state's rights if if the kingsley standard would show that there was a violation of clearly established right a clerk there was  a violation of purely established constitutional rights and we didn't know they had until last year certainly know what drugs and cetera did not know in january of two thousand and sixty that kingsley would be a political or circuit well we believe that in order for the lots of the well established there needs to be a supreme court case on points it would certainly be helpful if there were also a t fifteen the events an issue happened in two thousand and sixteen we believe that is sufficient under the law to meet that plainer standard of review that said we also ask in the alternative that the court exercise it discretion if if it is that in any way ambivalent about whether things lee clearly established the law and make this the case that in which the court for the st time applies kin medical care context it seems frankly the inevitable tide that given that it's already applied it in the conditions case and we know from the supreme court in wilson v cider that medical care claims of medical care is a condition of confinement the court specifically held there is no significant distinction between those two categories of claim so given that it's already been applied in the conditions context it would be you know very strange indeed if it wasn't subsequently applied by this circuit in the medical care context now that said there is a spear is what the circuits on whether kingsley did yes apply standard for medical short on reasoned analysis especially relative to this court's ruling in cold bruno which you know makes it plain kingsley applied the logic of bell itself the conditions of confinement case built on it and and really spoke  sounded loud bells about what the rights of pretrial detainees are and whatever you have to prove but you certainly don't have to prove is a motive to punish so having already made that step what i'm saying is that it would be most unusual for there to be not only a split in the circuits but an internal split on the circuit as to how far kingsley goes if i may return to the facts just because the obviousness of the need is something that i  medical need is something that i think gets lost in what is otherwise a very lengthy opinion by the district court i note that the nurse in the case of access tricks records i think i went over this oh let me move on but we know what she knew we also know that she failed to perform withdrawal risk and substance abuse assessments that were critical parts of the intake process at that facility that she failed to come up with a mandatory treatment plan for rick that she failed to even arrange for any follow up monitoring of his symptoms of withdrawal and against his specific request she referred him into the general inmate population over the next two and a half days these are the was he told her he was going to be withdrawing and she at least made some effort there but your factual recitation said what she didn't do but it didn't say what she did do well which she gave him i assume a kick get is something you give to somebody who's going to be withdrawing right that's not the allegation though although that is the district court's representation of it so what's the allegation  paid for a kick kit the the medications did not show up in his system there have been contradictory and self serving statements in the limited discovery that we have because again this is a twelve b six stage we don't even proceed to discovery where some individuals are saying he rejected the med some individuals are saying that he didn't get the meds so with that in mind and information and belief the allegation is that she didn't actually order the kit and in the unlikely event that she did that she didn't ensure he received the medications and we know from the case one of your sister circuits and parsons b caruso that a nurse is failure to ensure ensure being the operative word that a taney received his medication was still considered liable or at least a claim was stated against that nurse sufficient to withstand dismissal the district court stated judge browning stated we haven't shown that she refused to provide an intake but with all  respect that isn't the standard some action isn't enough if the action you failed to take was the action that might have prevented this the district court concluded that the complaint blacked out adequate allegations as to the subject of state of mind let's stay with with the nurse that she drew the inference that her conduct would lead to a serious risk of harm there is your position with respect to her and maybe with with all of them is that his condition was so obvious that in any prison official would have known that additional care was mandated in that from that we can infer malice it's true with respect to all of them yes i think with the nurse the argument is a little bit nuanced in that in our proposed nd amended complaint we had one of this country's foremost experts on medical care in corrections facility stating that any licensed medical nurse would know that an individual presenting with heroin withdrawal particularly one who asked for help in the form of broadcasting his need i'm going to kick real hard at coupled with a co morbidity hepatitis c is particularly at risk not just of having a very unpleasant experience in the facility but at risk of death but dr venter is the one thing the doctor  do and i don't think you suggest that he can or he did is to prognosticate on what nurse robinson the state of mind or actual knowledge was and so why aren't the allegations about nurse robinson failure to do it in take her failure to take in a concert consideration that he was at a prior diagnosis of hepatitis c why aren't all those not enough if kingsley doesn't apply in there has to be a deliberate awareness of a substantial risk of physical harm because when a medical need is so obvious that even a lay person would understand from it that the need exists and that not taking reasonable measures to abate it is putting somebody at serious risk th when it's that obvious you might as well in for the nurse knew it too you know sadly there are few you know people in a nurse's position like this one who broadcast their thoughts their motive to punish but it can be inferred by the obviousness of the need so you asked me your honor about the nurse and whether the argument is recent the same with respect to the other officers with the other officers it is perhaps more blatant it's easier to see because the allegation is that he complaint what i'm struck by with respect to valdano is again how disadvantaged we are that we're at we're here on a twelve to six motion we don't have anything about what officer valdano understood he hasn't been deposed we  have no information about it and given that i was in no position to say hey officer vol don't you this what i would ask the court to understand because it's in the complaint it's in the chronology is that he encountered officer  valda o the morning after he had been vomiting blood and saying so to the officer who was tasked with monitoring him officer chavis i think it can be inferred that if he was that ill so that that night the following morning the day of his encounter with officer votto his cellmate is saying he is from it had blood numerous times all over our shared cell get me out of here and it's noteworthy that these individuals made an intentional decision to remove that cell mate so guards we know that he communicated with the st guard on the very st night after that it becomes a series of reports from other individuals so we'll never know oh if record ts was past the point in being able to articulate what his needs were never been he never asked for to be sent to see a doctor be sent to the medical we even we don't have any unfortunately because we've been denied discovery we don't have any information about whether he was able to articulate that it was not in the limited but incomplete body of information that was provided to us in fact you know we weren't we asked for but did not receive complete security footage of mr t s a cell for instance as i note in the complaint security footage he's struggling to drag a mattress into his cell we know that that mattress was subsequently removed because it wasn't on his bunk where and when his dead body was found i think one can reasonably conclude it was removed because it was soiled with his bloody vomit given that he died a slow death of a gastrointestinal hemorrhage but that footage isn't to be found and i i bring that up in point of fact just to say there's a lot that we don't know and we don't know what rick w capable of articulating past the st night when he was already vomiting blood after that it was up to others perhaps to speak for him cellmates that didn't want any where near him we know from some of the statements that other inmates were in the vicinity talked about him groaning all night in the presence of these officers this discussion goes somewhat to your your argument about not being able to amend yes i made it it strikes me that when you get when you win you basically lose on it on a twelve b six on qualified immunity that to say your amendment is futile i mean when all you have to do is to put more allegations in seems problematic it seemed problematic to me to it seem problematic that it took one hundred and seventy one dollars pages to tell us that we haven't stated a claim you know again this is twelve b six if further discovery pointed up that one of these officers for any reason didn't have individualized information depending on what the standard is that's going to apply to these claims then they are certainly free and clear to move for summary judgment or we'd voluntarily dismiss them this was just premature  be six you know i find myself there are you know one being in a unable to articulate what the needs of my dying client were after the you know st night that he was in the facility though i suppose was i took it out of the flow of my narrative i think i hope i have made the court aware of how obvious this need was to these individuals and even if we are applying the subject of deliberate indifference test i think there's there's ample case law we cited it and i hope we successfully parried attempts to distinguish the case law that inmates who have displayed this sort of medical need to defend an officials have been able to successfully state a th amendment claim returning to kingsley i just would like to say we've known for a generation now that the th amendment protects pretrial detainees more than the th amendment protects convicted prisoners but absent you know workable test from the supreme court we've all been applying this th amendment standard all these years a state of affairs that is unfair on its face oh i say i only something that jails seeing a lot of now as you know this opioid epidemic that we have and my clients are on the front line of that and they see that every day and we often and they often encounter individuals like mr workpiece who have been in the jail quite a bit with this problem this addiction and what's interesting about this case is we've got quite a bit a history of mr work he's in the front end of the complaint including details about hiring carcer a sions in this facility and what we know is that mr ickes had a problem with opioids and heroin specifically but there w times he seeking treatment for that times he's not he's obviously gone through with raw periods before and there's no allegation in the history that the nurse apparently reviewed that morning according to the elevations of the complex living history that she knew that would indicate that that he had ever been medically admitted for her will be let's say let's say that's right on i'm wondering what the legal import of that argument is there's two satisfy the object the objective element correct i agree your honor depend depending on the condition and you've argued both in district court and here that nurse robinson affirmatively diagnosed a condition requiring treatment because withdrawing he told her that she knew that from the presentation in the history and then he actually makes a referral turn to the facility physician who enters an order at two hundred and fifty that afternoon that's when the complaint ok so she does all of th argued that nurse robinson diagnosed a condition requiring treatment i agree in the sense that we've talked about two conditions but i agree that withdrawal if serious enough can meet that objective constitutional threshold  disregarding but the here the nurse recognize the potential harm from the draw and makes a referral to a physician and what our case law says is that a medical provider in that situation who makes the appropriate referral  to a doctor to treat the condition has satisfied the you know the general constitutional requirement to attend to the detainees medical macwrite so is swimming that the subjective knowledge  requirement is satisfied with that to the side then the plaintiff would also have to show to satisfy a typical th amendment standard is that the officer did not take reasonable steps to avert medical professional nurse for her i think i think the test has been a little bit different in the sense that we're talking about what are the circumstances under which they can be a liable i referred to a case in our brief spencer versus abbott which is unpublished case but it kind of identified as three areas where a medical professional could be liable under under what charges custody or whatever the whatever whatever the standard is the plain of his affirmative that her role continued after after this initial intake period i mean she makes the referral to the musician who's always there something in the in the st amendment complaint a proposed nd amid a complaint that there is robinson's  activities terminated when she went off duty the in other words the plaintiff has specifically alleged that nurse robinson says that she ordered a withdrawal i don't agree your honor i think was wrong with that i think the what the what is not in the complaint is there's no allegation that any of those particular officers have a duty to ensure that he takes medications so you can say i'm going to order it and then there's you know i think seven people that being on duty and so nobody follows through on it nobody gets the  and so on a twelve b six you can dismiss it and anally do it man because well nobody specifically had a duty to make sure that the thing that was order actually got to the guy that's throwing up blood well for three consecutive day i think the issue is whether or not these these particular individual defendants had an obligation as a guard which they don't to pass out medication medications are passed out by a one is a nurse states in the complaint that they will pass out medications and that detainees in these situations can decline to take them if they choose not to take them so to come  back to your honor's question it's not a matter of forcing medications on these inmates they can choose to take the medication or not if their symptoms are such that they that they want to take them there's another allegation in the complaint that at least on january the th these medications were offered three times and he declined them the other allegation where the nurses were in the st memo complain is that that's i don't know the about that but you know chavez understood he declined medications that day although there's analogous also an allegation in the complaint that the nurse believed that he took them that day which would bear on her subjective state of mind and i don't know of any evidence or allegation that suggests either chavis or the nurse would have been misrepresenting anything for any particular reason well voracity that it's in it saying that he got there with rocket they way they did they did it with an explanation well if the complaint in this lawsuit is that that he didn't receive withdraw medications from  the nurse passing them out that she just declined to perform that duty well who is that because we don't have the right defendant here i mean we were talking about officers who are not alleged to have that responsibility  factual allegations of any officer in this case of having the duty to go around passing out medications the only medical professional here that we've talked about or there is too there's the doctor who makes the prescription and the intak initially made the referral there's also no allegation of authority by her to go around and hand out medications to any physician to any of the detainees why isn't this a case or at least at some point the serious this his medical condition made it obvious that he needed to be referred to a doctor or to the medical unit just you know your basic you know when you see it case right and so we've got different defendants at different times the nurse talks to him but he's not really exhibiting any specific symptoms that are described in the complaint he's coherent able are can articulate they means there's nothing that appears obvious other than chavis there's a report by the end may two officers have is that he had bomb it had blood that's significant i agree but there's countervailing factors which don't make it obvious the detainees not requesting there's no there's no allegation in the complaint that mr ortiz requested medical treatment beyond the initial discussion with the nurse that any time during the entire incarceration the was would have also been aware that he had declined medication which i think would lead an ordinary person to believe that perhaps his symptoms weren't severe enough to warrant taking the medication at that time the other thing with the deliberately in different mindset which is what needs to be proved well it certainly is inconsistent with lopez garcia go saying that they had no idea that the guy was having problems if chave vomit on the floor which i would suggest is consistent with someone withdrawing from heroin and not necessarily an emergent medical condition especially when the individual's not asking for medical attention and the remaining officers did not see any significant symptoms up until the time of the when the hemorrhage occur and so in terms of the obvious getting back to your rational question your honor the symptoms presented to officer chavis were a mixed bag at best and not obvious and the symptoms really related to all of the remaining individual defendants were consistent with a heroin withdrawal it was withdrawal was what it was  anticipated it was what the medication was for but it was an obvious indicia of an untreated medical condition that and so in that sense it is not obvious to them and this was consistent with what had happened to him in the facility before he had not been medically withdrawn before and had done ok and i think the officers can and can realize that that well i think st of all in terms of what's in that complaint we discussed we've discussed what the factual allegations would have been and i mean i've kind of accepted those as true taking or taking that on in the motion and in the appeal the main futility argument had to do with the money now claim that we haven't discussed this morning and whether that adequately stated a claim against santa fe county does not because of the lack of a prior factual allegations of specific constitutional while ations at but as to the it vigils that we've talked about what the nd amended complaint added was they knew or should have known which is negligence and so