isn't titled qualified immunity for two reasons both of which are legal issues one is that the evidence when viewed in the light most favorable to the plaintiff is insufficient to prove an eighth amendment violation and the second is that the law did not provide graham fair warning that his conduct under the circumstances he faced was clearly unconstitutional it's important for the court to understand that webb's claim against graham is really based on a pretty limited set of facts and those facts occurred during the proximately five and a half hours on her third and final clinic our medical clinic at the jail which was scheduled between six thirty and seven thirty that evening he checked her in so that dr hersch or examine her for her complaints of a headache that had been going on for several days dr herter thought she was suffering from a sinus infection or a tension headache he prescribed motoring for her and instructed graham to contact him if her condition get rid of the headaches he wanted to know that's correct so on that and did not get rid of the headaches well that evening after she said that's what she says that's correct that nick and graham at four o'clock during his five o'clock medication rounds he gives her the motor in her final those the motor in for the day and there's no evidence in the record that at that point she complained that her headache had gotten any worse gives her tylenol this testimony in the record is that in his judgment her condition had not had not worsen and about an hour and fifteen minutes later  deputy not saying or reports to graham that webb is complaining of a terrible headache and graham responds that he will check on her as he's doing his round unfortunately about ten minutes later she suffers for seizure in an ambulance is called and she's transported to the hospital now with respect to the eighth amendment claim webb has to prove two things first of all that the objective part of the test that either the night the laid or interfered with her medical care and secondly that he did so with deliberate indifferen that is he was aware of and consciously chose to disregard an excessive risk that she was suffering from a serious medical condition the evidence is insufficient to prove either one first of all with respect to denying medical care it is true that he did not call doctor first or when at nine fifteen she said i've got a headache however the it's fair to say based on the record even viewing it in the most light most favorable to the plaintiff that dr hirsch or left it to mr graham's judgment as to whether her condition wasn't getting any better and warranted a phone call to the doctor a graham's testimony is that i didn't think that things were getting any worse and i wanted to see if the medication was going to work now with the benefit of hindsight you can question whether that was the right judgment call on his behalf but to say that he denied the later interfered with medical treatment is not a fair characterization of the record evil and even in the light most favorable plain moreover and very importantly if the plaintiffs claim played a role in either causing her cerebral aneurism or causing the consequences of that cerebral aneurism to be even worse than it was and there is no evidence in the record on that critical element right it goes to the qualified immunity issue and the reason it goes to the qualified immunity issue is that it goes to the first objective piece of the eighth amendment analysis and that evidence that the intervening hour and twenty five minute delay contributed to the medical consequences she suffered with respect to the second piece of the eighth amendment claim that's the subject of peace benefit of the medical guidance from a qualified expert a reasonable lay juror could not reasonably infer that the hour and fifteen minutes between her and his last visit to  or or made her medical condition worse than it otherwise would have been all right but but that would be a little broader than coughing or contributing to the aneurism that is if his delay has contributed to the effects of the you're speculating at least insofar as what's in the record because for example we don't even know if dr hirsch or was a available to take the call or be what he would have said if he'd received the call and then you have to build the plaintiff's claim from that point is really built on a series of speculations all culminating and he would have received the call he would have immediately told them to get her to the hospital and they could have done something for her at the hospital that was different than what was done for her if graham doesn't every well and again at that point he didn't say how much more treatment so there are some elements of judgement there for the paramedics to make remember mr graham sees her that my time is up i'm just going to conclude by saying that there's also insufficient evidence of the subjective deliberate indifference component and we respectfully request that you reversed and remanded weapon structures to enter judgment or calvin gra yet the the court and saucier said a court required to rule on a qualified immunity issue must confer first look at a threshold issue and the threshold issue is if no constitutional right would have been violated employees working specifically that it is sometimes appropriate for a felony or pass on an issue of law for trial or court did not look at that issue and we're saying in this case because qualified immunity is an issue of law before the district court however you say you get bring a qualified immunity defense for dr hirsch or to the district court judge we raised qualified immunity as an affirmative  immunity was not specifically spelled out in the most for summary judgment at the district harl i mean i think you just said you did presented to the district court that you're just saying because it was in your answer it was in the answer and the reason i say the reason i make a distinction about it being in the answer is in the genus and wal mart case in this circuit wal mart tried to raise an issue of ways like contract after the trial and and this court indicated that that in our discretion we may look at an issue not follow if it's an issue of law if it's something that's been brought up and it's not going to be a surprise to the other side when it comes up or there's some other fashion really won't come proceeding i would go down and i would raise my qualified immunity and the judge would you come first and the judge would get her shot at it and she would take a look at it and for the same reasons likely that you rule on the counties issue we'd be back here in sixteen months my position this point in time i believe that the bookcase that you gave us in wal mart haste allows this court now to say it was raising the answer it was raised by codefendant the constitutional arguments are a piece of it and under the sauce your case is the threshold  this court can take an opportunity and look at i don't know that it's so plain that things would go the same way and you'd be back here in the same posture and we'd be wasting a year and a half everybody time the reason is richard richardson and the other cases that the plaintiff has cited in the situation all ended all deal with groups of individuals companies who are contracting the privatization of jails and institutions in this case we have an osteopath who for fifteen years was a jail doctor part of his practice was to be a jail doctor we talk about in the richardson case and in the jensen lane county case that we don't give qualified immunity to these doctors because market forces are going to be clear that  couldn't afford it the county had to hire one doc to do county services health services and the jail this is not a situation like richardson where market forces are going to affect a place like that this county and getting essential medical services to individuals in douglas county this is not a conglomerate like we have in all of these other cases this is an individual who's outside competition outside the market force and should get the benefit of qualified immunity transcript that was put before you shows his contract that he has the the sense similar benefits i understand that it still seems to me as though you're making an effort and rather than anything else than the concession is and under the constitutional arguments that were made within our arguments below that that allows this court some bases for developing into the further issue i think the only thing that wasn't done below is mention the word it talks about his group flex holders talked about in one of the cases intense and in jensen it was psychiatric associates there's information within the record that shows that this is a small town doctor working for the county there are government contractors that work within the jail they don't work for me i'm in reserve one minute circuit i'm going to take this a little bit out of order because of how it ended with mr armas to you know there is no question that dr hirsch or did not move before district judge akin indicating that he should have qualified immunity issue was never presented in the court is this court is absolutely correct it's not de novo review because it wasn't ever secondly in the richardson case there's nothing in there that indicates whatsoever that if it's a large corporation or a small corporation makes a difference the fact of the matter richardson stands for the proposition that if you're a private individual doing state functions you don't have a right to qualified immunity so as a result it's our position that he's wrong in both aspects before we ever get to the deliberate indifference argument and he's wrong in that aspect to now let me back up just a little bit if i might you are first of all we made a motion to half days she's gone five a half days with a constant headache and they can stand here and say they didn't write severe down trust me these records are fair there are a number of records that i believe and have argued to the court were fabricated we don't know why they don't make records but five a half days now before you ever see the doctor that sound like a lot of students go through their whole family living on a drug or maybe go through the whole argument really not feeling so great difference you're supposed to take a medical history and do any of that you're supposed to then keep track of what is happening because now we have a long standing headache  all of what you're about to hear and and part of what was in the brief and that is it's a cesspool down there everybody wants to call this a rural community it's a large jail we've got forty empties under his tease one is fired because he's addicted drugs the second one is fired because he's stealing drugs the third one is fired because she's had so many errors twenty six and two week period a one day period of not deliberate indifference the doctor right and we're getting and the reason it's important is that the doctor had these foreign keys e m t is under him we're all been  had no policies and procedures to deal with people at the jail he's got prescriptions didn't hire those people did it he was not their employer he was they were under his supervision and sergeants i'm o t and i hadn't gotten to it was pretty hard for me to see how this showed deliberate indifference to towards this well well the delivered indifference it is opera star examiner prescribe things that doctors ordinarily prescribe he issued instructions and that just doesn't sound like deliberate indifference again and maybe negligence maybe should have done more but it doesn't sound like like he doesn't like he doesn't care and that and that and that he's doing something in order to thwart a punisher which is  questions of fact it has to be determined by someone that is looking at the evidence and deciding whether there are questions of fact whether his treatment not only in running the facility like how to a case that talks about there's no  staffing is inappropriate and there's a list of five six different things that fall exactly into what happened with dr hirsch or dr hirsch or comes in and acts like well yes i did everything i could and i gave an order and everybody turns to gramma's does graeme didn't my attention but i'm having a very difficult time seeing as how either mr graham or dr her sure as engaged in deliberate indifference and how it was so clearly established that they knew at the time that they were violating her eighth amendment right let's make an assumption graham took it on his own to ignore it and just as his record indicates that he's passed out medications whenever he felt like it he has deprived people of medications he has done i've heard of any medication that she was entitled to well here's the pri problem the problem is that there has been fabrication of evidence i don't believe he gave her things if any of that matter well it does problem the problem is with all the problem is this and i thank you trying to explain the fabrication evidence and how it comes in and i can just have thirty seconds to get explained one exam one example is that they allegedly gave her more threaten two different times according to their records after she left and went to the hospital the amulet is coming she's gone there are records  here is my point my point is this if you put it together one i don't believe the records which they cannot be believed because they're fabrication to once you don't believe the records you and then you doctors order in fact there are cases that say you have to follow doctor's orders or you're in violation of the eighth amendment cruel and unusual punishment and that's what occurs here the problem is the people the court the council yes negligent it may be because a lot of things and again you may have good tort claims against them on that basis on our questions section one nine hundred eighty three as to whether they have violated the constitution of the united states i understand and one of the things the court cases say is that if you don't follow the doctor's orders particularly regarding prescriptions they're deliberately indifferent and that's exactly what is occurring here if you believe what doctor if you were even if you were negligent if you had two pages stuck together and you just simply didn't see the doctor's orders that would that would give you an eighth amendment violation no if you if you blow me off you know in these records that that's a liberated difference i mean most users just that over the counter drug a lot of us if the doctor doesn't think we have anything that wrong with us that we don't need more than over the counter judge from the very beginning this wasn't a minor headache and that's why he gave a list alleged order that says if he doesn't get better call me wife because it wasn't a normal headache and normal headache if that had been the case are pretty standard and pretty standard instruction i've seen it on commercials on t v but the difference is that she can't call him she is at the mercy of the guards who then decide whether i should even check on her not or if i should find out whether it's do was his appropriate care for her didn't call a doctor didn't and we don't know it whether he was high on drugs that day or not because he's not going to admit that but there's been an investigation set forth in which he did he was at work and admitted he was at work high on drugs that doesn't sound like the kind of person is going to care much for somebody else is laying in a cell with an enormous headache if you take the drugs with the intention of not serving s grossly negligent or which if you're correct i hope that the state of the state of oregon will provide a court remedy but i don't i don't understand why there's a constitutional damage well because there's a constitutional remedy because these people are at the mercy of empties guards doctors that they bring in and it's a constitutional issue because our constitution protects those people that cannot go protect themselves they can't go out to  particular doctors they can't go to e m t they can't go to nurses you know the fact of the matter is they're dispensing medications in this jail through him to use that are a violation of oregon law they can't even do it at all it has to be done by nurse competent nurse in here to do it because i can't and dr kirshner ought to know to have would have been better off not given her the most if she would have been better off yes because it's thins the blood number one number two then maybe there would have been some comp the fact of the matter is that you can't just ignore the entire circumstance and just say well you know i guess graham must have done it right because there are some records that are not reliable because there's some claim by graham but  even bother to call when the doctor ordered  acted with elaborate indifference and three prior case law did not provide clear warning that his conduct was clearly unlawful under the circumstances he confronted