morning ladies and gentlemen our first case for this morning is daniel against the office of the sheriff of cook county faced problems with the cook county system for providing medical care three things we've identified scheduling medical records keeping and the grievance procedure those things came together  unfolded mr daniel was playing basketball on april twenty fourth and had a very bad break of his arm he was seen and provide immediate care physician who said he he needs to see an orthopedic specialist asap within a so if you're not making any claim though about the sixteen days or so that he lapsed from the break to when he finally sees the orthopedist the first time i think it's important to show the power even though i was going to say it took two so so so on it goes he actually does get seen sixteen days later if you say on may tenth and dr major has a treatment plan right three weeks in a cast two three weeks in does get his short short on cast so so far so good but then what happens he's supposed to have an appointment with the north p t specialist on june twenty second and get his cast off that was the treatment plan hands bad he's that winds up with permanent damage from this what's the evidence that the delay is there that's or question one and then on a somewhat different topic you discuss a lot of the d o j evaluation of the sheriff's office the rule eight zero three eight and i want to know how important the d o j letter is to your case i think the d o j letter as a lot of weight but it's not critical for just going right there for me asking here is your first question first if i understand your question the what's the evidence that's the evidence of harm really from from the fact that this ca was having the cast on too long and basically the cast was on twice as long as it should have been it's standard procedure not have it on that long and it causes a deep curation of the bones in the tendons in when the cast is left on too long so that's a still pea he lines up with right yeah right i mean for for purposes of getting through summary judgment i think it's pretty clear we have evidence in the record and i'm opposed expert witness who's corroborated by the treating doctors who all say yes you should leave the cat cast on that one that's exactly the wrong thing to do so the answer your other or your other question about how important the d o j letter and so forth is let's talk about what we frustrated he testified in his deposition frustrated that the scheduling system doesn't work because he had called lauren scheduling to make this happen and it still didn't happen he bypasses the system calls jail personnel directly and says make sure he's here gets them there august twelfth and finally the cast comes off so that's that's the chronology and it's clear that it was the scheduling the medical records that keeping that was the direct cause of the  in charge of making sure grievance procedures were followed and he testified to unconstitutional previous grievance procedure what he said was a medical to request a grievance from improper medical care could sit for thirty a pretty procedure no be able to checking to see if there's something that's critical no weekly checking no one person who's involved you supposed to oversee this or check it i mean on its face that procedure from for prison officials in the grievance it ministration process ok saying you didn't handle my grievance properly and i certainly understand how grievance procedures fit in and help correctional officials defend cases brought into the prison litigation reform act but is there an independent constitutional violation that happens because a grievance is not handled correctly or is it explained to me where where so the the system for the prisoner has to work in some way if if there are problems with the scheduling system if there are problems with the medical record keeping system a grievance procedure should back up to make sure that the things happen you know here you had a grievance procedure that was designed not to work medical care is time sensitive this is a good example of but i mean there could be anything else though if it's really a complaint about the grievance procedure i guess i have a similar question judge hamilton's to what extent is that just supporting your institutional mono argument that the medical process wasn't working and to what extent there's a bad grievance procedure it could be bad because somebody is attacked by a cell mate or it could be bad because the medical care has fallen apart or could be bad you know for any number of other reasons that we took typically see in prison cases i think it's it's the three of them together all three of  every bad handling of a grievance if nothing bad has happened to a particular detainee physically isn't it's not a constitutional violation but if i understand what you're telling us it is that certainly with the system of this massive size of the cook county jail providing effective medical care you know since requires effective bureaucratic procedures including safety nets and backups in the grievance procedure as part of could be or should be part of it effective backup system sure and you're saying this was mostly right it works the grievances work the medical care system is not working help me here my hand hurts i can't move my fingers sing about it though your opponents say well you know maybe it didn't work for mr daniel but how do we know you know that it was globally bad you know why is it a mono claim as opposed to simply some more specific claim right and that's why we took the depositions of the doctors and of john miller services the three doctors who took the deposition of stalkers baker major codice all testified that they when we ask them about scheduling dr baker was especially strong on this he said you know i can do all kinds of things i can call over to scheduling i can try to drive the guy over there i've seen so many so many things you can do and in this case because it's not working it wasn't just here he said it just you know i have a terrible time with this so we have the three doctors testified to the medical records progress no problem to the scheduling problems which are specifically what happened here but being a widespread issue and we have john miller testifying to this a system that is i think on its face doesn't work in a medical context and we have evidence that even that system wasn't being followed because grievances really answered longer than after thirty days now do i understand mr mueller's test manderson he's your thirty six person so he should be somebody able to speak to th get a puter a computerized sheet once a month that says here's a list of the complaints that were made when they were made whether they're answered or not so somebody looking at that report at the time it's made you could say ok here is one twenty nine days old you know that system if you're if you've got a grievance it be nice if you knew what day the report was was done right because if you do your grievances the day after the report you got twenty nine days before anybody cares that's why i say on its fa in a medical context it just can't work and it certainly didn't hear thank you could questions about a couple of the pieces of evidence that are that are being disputed here short with respect to the two thousand and ten monitors report as a matter of evidence law but i don't understand why it wouldn't also fall within the eight zero three eight zero it does i was actually thinking about it as i was preparing last night it's it's an investor report of the investigation he's a court appointed investigator who's supposed to right right so i'm not sure why we're having this huge fight about the admissibility of it but you know be that as it may well on the on the agreed order why is that not a party admission stuff i don't think we need it i think we we get past summary judgment with the doctor's testimony and mr miller's testimony but it's certainly at its the dead on point evidence it's very powerful no two thousand and eight due to his letter pointed out all the problems you take it together with the agreed order in may of two thousand and ten that the problems needed to be remedied clearly they haven't and dr chance he's report in june of two thousand system that cook county and the other defendants would be here saying that is really admissible it shows that there's no widespread anything hell we're looking at how long do you think that two thousand a letter will stay relevant and we've obviously the put up or shut up has been repeated often by this court for the the plaintiff to produce the evidence to meet his burden a summary judgment in this case our position that they simply haven't done that i mean also could they do i mean you know you've got this department of justice study which looks to me to be squarely in the in the wheel house of rule eight zero three eight i don't know why some committee note that says you know maybe sometimes there's a problem supersedes the actual language of the rule so you've got that you even if you didn't have that you have testimony from employees of the system the doctors saying that these things just don't work and you have a man who happens to have been injured by this systemic failure you know he's not saying that any of these poor doctors who were working in the system individually did anything wrong that's why it's a mono claim but it seems to me extreme not to say that there's enough to support a trial well if i can go back to your first question or the first statement about the department of justice letter to the committee no it's the importance of the just instance trucks what the courts are to consider and i think the importance and there's that and there are presumptively admissible but i don't see what circumstances indicate a lack of trustworthiness when the department of justice our national law enforcement agency if you will comes in and conducts an investigation why i think the manner in which this was conducted i it would gives most pause i think you're right that what are you going to do if you don't actually ask the people who are in the place for their report or for their observations new certainly could your honor and that's what the the way in which it was done though that the capos of the problem which explained to me exactly how it was done and how you think it should have been done sure there was in the room in the letter itself there were interviews conducted by detainees and you just agreed with me that there is no problem with interviewing detainee no of course in iraq all right so that part's fine sure and what happened is that the interview process that was conducted was anonymous pseudonyms are used in some cases and why do you suppose that was well i assume that the it was fear of retribution prompts right which could could happen i don't know why that undermines the reliability of the department of justice is they may have thought they were getting more reliable information by keeping pseudonyms so that the inmates wouldn't shade their stories because of fear of retribution by the guards or the institution but and then the follow up to that though is that these are also under verified unsworn it was a conversation and recording the conversation and reducing it to writing it wasn't something under oath so they're investigating is rarely are you what you mean there's been investigations you know of companies who had problems with sexual harassment in the workforce investigation doesn't suggest that you're dragging people in front of a grand jury for testimony under oath but with regard to  i think though that is what exactly the concern is is that you would have plenty of opportunity first of all the day it appeared the county would have had an opportunity to say we're going to respond to this in a couple of months after we've had a chance to digest everything in the report and certainly a trial as judge hamilton says there's nothing binding about this it's just evidence you're entitled to say you know we responded within ten days of every grievance and here's our documentary evidence that we did  e gap in the proof here that there is not a single bit of evidence or any other detainees at the jail that they suffered any harm from either the medical records the situation the scheduling system or the grievance procedure but that's just luck i mean you know you maybe that means other people couldn't get damages but if they're constitutionally defective policies you know supposed supposed people driving in prison sans invariably go eighty eight miles an hour on the stevenson well maybe you're not going to have been an accident but if you do have an accident then there's going to be a problem well i disagree with the statement made by counsel that the procedure is in  its face actually the testimony of mr mueller was that it will to back up for a second round to answer your question there certainly is tracking by name because how could you follow up to let someone know what the status of the field know what they were so that was a misstatement there is been a response there are no alerts or notices if there hasn't been a response within thirty days there are no daily or weekly reports there's just this one monthly report nobody checks on outside  grievances and all he's able to say is a majority are answered on time and we don't know what he means by that that doesn't mean everything right will in cat text your honor this is the when mr miller said there was not a person assigned that is to say there's not a point person he said a staff member of program services so it's not like anthony is a keener sponsible for going and checking to make sure there's grievances that are timely responded to instead he was saying that it's the responsibility of the staff of inmate services other cases decided by other judges in the northern district of illinois in which that exact letter has been admitted into evidence correct or have been has been used as evidence to oppose summary judgment  there's been i believe there's been some case law but i don't yes i think sin is one text yes and i am aware of that and dixon is one in the district courts we've got some district judges apparently admitting it and others doing what the district judge did in this case and exercising discretion to keep it out and let me just throw out an idea for you because i'm troubled by that you you make the argument that i would expect you to make sure that these are evidentiary questions that are left to discretion of the district judge but it strikes me as both unseemly an arbitrary to have different district judges in essentially parallel cases reaching opposite conclusions on a critical piece of evidence that may well be decisive for summary judgment and i'm wondering whether it isn't time in essence for this court to maybe exercise the discretion at least as to the eight zero three eight question obviously there would remain questions about relevance and how closely post the fit is between what they would between the content of that letter in the individual case but i'm really troubled by the idea that in half the cases it will be kept out in summary judgment be granted in a half it'll be kept in and we would affirm all goes well i well obviously your honor in the seventh circuit can do whatever they think is appropriate this time given the state of the opinions i think that that's one of the the values or whatever you want to say and trust to the district court to exercise her discretion and i think believe me i've been there i'm ninety nine percent in agreement with that but this situation is extraordinary ok your honor i'll i'm not sure why this is any different than any other cases that are brought on  same piece of evidence critical piece of evidence inconsistent results with or decisions about admissibility with decisive results for the two since i thought you meant with the facts of this case and that the general proposition is that well part of that is you know to what extent did judge alonso's decision about this report turn on a reading of the evidentiary rule that was too narrow obviously if a judge bases a decision whether to admit or exclude evidence on an incorrect interpretation of a rule there you have a legal question that's appropriate for this court to take a look at and maybe that's what these troubling inconsistent results in the district courts i mean it's the same jail and the same study and the same set of problems so really doesn't make any sense that the report is either admissible for the truth and then you know let the case proceed obviously there is more to this case than just this one report or it's admissible only for some kind of notice or or non truth purpose what one thing if i could bring up and i know your honors the author of dixon as well and i'm familiar with the case i think the nec case you know when the movie started writing was reversed i think there was more to that case in the record hobson you know better than anyone but there was also expert testimony in that case about  serious thing and somebody would have addressed it seems to me like when one doctor says well you know this case really needs to come up i might have just said take it off true that's not a big deal but you still see this thing really through and we're time i don't case i don't so what i'm focusing on is is in part on page sixteen of the opening brief this is what dr baker had to say which goes beyond just mr daniel he's saying how are appointments scheduled forwarding along pieces of paper if the if the note indicated that mr daniel had an appointment the doctor assumed the appointment was made but the doctor didn't know exactly when it is and there was no way for a physician to know when or if an inmate that's not just mr daniel an inmate was scheduled to see a specialist and then dr composer says something like that and then dr  is just sort of frustration and a little bit of you know i don't know complaint i mean you can make phone calls you can give them papers you can write movement envelopes how many things can you do you know and a lot of that is not why i don't understand that point because the d o j investigation is better equipped better funded has greater access to relevant information than any institution or individual i can think of outside the jail itself and it sounds like you want to litigate that investigation to to force it to be replayed in every case of course in which each case you lose you'll be required to pay attorney's fees i think we'd be foolish not to take advantage of that as a starting point again not suggesting it's conclusive and i want to clarify position because i don't think i made it clear enough i apologise for that here on the i'm not saying that the that we should we litigate the d o j later all i'm saying is that if it's considered it should be considered in conjunction with actual evidence presented sure who to you can sustain their permanent summary judgement and hear all of the take was perhaps some documentation like there's you know eighty five percent of the month or not tom responded to there one hundred missed or cancel appointments for medical personel none of that is here so we have no idea what the extent of these alleged unconstitutional systems are and that's something that could have certainly been born o this case is as you know it's you know it's fallen two thousand and eleven so it's been on for a long time they're simply not the evidence to sustain their burden even at summary judgment ok you know anything else even at summary judgment they didn't put forth any evidence to show that in fact this was something that was on a widespread or stomach level why not a d o j report at a minimum even just even judge alonso thought that it was a notice to everyone from sheriff dart on down that somebody thought there were a lot of problems at the jail well that would be the problem with what exactly is that notice of every single thing listed in ninety eight pages  really there was just nothing to show that mr daniels plight extended to anybody else in the jail you pointed so we look at the docket in this building and we find a hundred isolated instances of suggestion that this is simply an isolated incident on this record again where the the defense seems to be that girl seven hundred other cases are all just isolated incidents given given the d o j evidence of systemic problems in providing just a minimal level of humane care in the jail for people who have been found guilty and people who are just being held because they have been and an ability to see how many days you know it been since the grievance had been made but in me to suggest that it was impossible for that once a month report could be used to track it was my point is just that once a month is just doesn't work three eight i agree that it should not be the luck of the draw which district judge you've got as to whether or not the field you letter comes in i think the answer is found in dickson and how to use that in that if there's evidence that it's still relevant for the particular detainee or prisoner that is at issue like in dickson there was evidence that you know the remedial measures hadn't taken place yet same thing here is evidence standard that we apply over district judge approaches a discretionary question with a misunderstanding of the applicable legal rules we've often said that will preserve produce an abuse of discretion but this is this  is the inconsistency here is very troubling i think that some