level of detail was required in jackson's raven says in order to adequately present his medical to lay claim to prison officials before coming to court just just as one factual question what is the current status of his i never heard of them thank you very much i met with him last week he still has symptoms his back problem his neural lot is neurological issue that's noted in the in the records he he no longer seems to have the granulomas so so that's not an issue he still believes that the symptoms that he has are connected with his sarcoidosis i don't know if that's correct or not he but he believes that the sense that he has been treated now my understanding is he's not he's not being treated for sarcoidosis he me again the question this case is is the level of detail that was required in jackson's grievances to adequately present his medical publicly and he made grievances an april july and august of two thousand that's correct that's right now he didn't appeal the april or july grievances he didn't know are will he be able grievance he was told we're dealing with your with your problem we assure you that you're receiving adequate medical attention and he  though the doctors he's not a doctor he you accepted their assurances that he was getting out of what attention so that one was resolved and when there's a serious resolution there's no further procedure that's right and as to the july as to the july grievance that grievance says on its face that it was resolved by his surgery and and the issue is what would a reasonable fact finder take that language to mean and clearly a reasonable fact finder could take the language  resolved by surgery to mean that the the medical staff told jackson look we've done what we can do for you we removed the lymph nodes we diagnosed you there's nothing else we can do we resolve the issue then the page just curious not to interrupt you but to look to focus on appendix two thirty three yes the but the response to the grievance looks like it was signed july thirty one two by surgery eight slash two thousand we don't know when or who wrote that wrote that then we had george jackson looked like he received this on april twenty fourth of one that's right which is very strange that is there's a signature above the result by surgery and i'm i'm not sure who signature of that is but it's next to george jackson signature i can tell you what i personally interpreted this to mean but i interpreted this to mean that several months after the surgery was performed mr jackson and the medical staff together agreed you know april of two thousand and one and that the prior surgery had resolved the gr procedures if there's not an informal resolution it's up to the prison to then hold the hearing that's right so there's not an appeal that jackson would have had to file the process is that the prison then has to take a step which to my mind there's never been a hearing under the procedure will he that's right he did make that allegation the the district court determined that because jackson had resolved the grievance that it was irrelevant that there had never been a hearing but it certainly and certainly the fact that there wasn't a hearing was your regular under the under the that it was clear at that point that he'd received all he got from the administrative process and the only thing left for him to do was to sue in court for the delay in the and isn't it isn't the real issue here that a system such as this is not equipped were designed to resolve or intended to address a grievance for delay i mean if you grieve delay yeah how can they respond the surgery that ends the delay there's no provision in the d o c s procedures for money damages over retrospective relief so once the delay has been resolved then it's time to come to court and support money damages but for that we never really got to the issue in this case of whether there was some objective an objective deliberate indifference to the violation of the lemon because of the alleged failure to exhaust the grievance procedure that's absolutely correct but he was seen and had swollen lymph nodes in his neck and a lawyer he was treated for an ear infection in september they're still swollen he doesn't follow a grievance until april of two thousand and essentially he is expected these grievances to say which doctor didn't do what correctly and it's true consider issues were addressed yet you're seeking money damages for delay in diagnosis that's right that would assume that there was some harm done by the delay in diagnosis there i don't know that from what you say about his parentage condition that you're alleging any physical harm it was pain and suffering from not knowing what was wrong with him well he he believes that his condition got quite a bit worse during those months while he was waiting for the lymph nodes to be taken out he alleges that it led to infections in his sinuses and in his throat and so he wants the opportunity to prove that by evidence that's right that's right and and and we'd like the opportunity to do that  well he asked us to represent him if the court does remain and to represent him in the district court and we've agreed to do that and we'd like the opportunity to to develop those issues and i can address the merits issues if your hono state defenders were responsible for the failure to treat his condition and so he did file a motion for leave to amend the complaint and then that was the day with all the love later he filed something to withdraw he wrote a letter to the court which is entered on the docket essentially the court's read it as a motion for permission to withdraw that motion for leave to file and and there's no indication that that that letter request was ever considered or will decline and so at a minimum was you're saying the court didn't look at the whole picture that had something out there but then he withdrew it so you should consider the claim still to be before the court if it was if the motion in april was withdrawn in may that's record had rolled by my that's right th if you're honest you have no other questions all sit down and all that's fine thank you very much good morning i mean please the court my name is bills are over and i represent defendants ivans and prison health services and i'll be using ten minutes of the allotted time in the state will be using the other five minutes based upon the questioning of the court it appears that the focus is on the wrong document the starting point in our analysis is the complaint what was played in the complaint plaintiffs would have you believe that there is some broad allegation in the complaint of a continual failure to diagnose over a number of years since a basketball accident the actual complaint i think the crux of the complaint was as i read it that there was something wrong with me and it was determined that they needed to take a look at it i had disclosed on my neck and i was given the option on december sixteenth of having it excised that was august sixteenth of the following year eight months later to the day before they finally did anything and as it turns out what was found was something that is fairly significant and they should've nobody while he was complaining he's not a doctor didn't nobody really gave him the care and attention that one should give to one with that type of condition my reading of the complaint i'm not sure it's different than yours at this point the complaint focuses on that eight month period specifically dr ivans not performing that elective surgery would you know why it wasn't perform for eight months i do not know i mean that's the i mean if that were one of us would want to  december sixteenth would want to out before christmas i understand the senate for that date and then there's no real explanation as to why didn't it was scheduled months before to happen on that date and that they came and went i agree that the evidence is  lacking in that area the discovery was done the answer has not come through in discovery are you going to the point that dr ivans is the target of the complaint and dr ivans was in the targets of the grievance that were your that is where i'm going your honor if you look at the july grievances what requirement is there in the procedures that the individual and a responsible individual needs to be named or targeted in a grievance your honor that that would focus on the prison policy manual for a point for basically the focus of that inquiry would be the definition of a grievance which indicates that it has to be in writing and it related to and in this case there is no customer evidence of any customer policy that prison health services was deliberately indifferent to this individual as a result of the policy that they have that doesn't have to be  grievance foreman from it were i don't see it on the on the form your honor how would you have to find it if it's not there not a place to do it i think i think the only thing that i can see that would require it would be in the definition sections on three eighty two which were to find a grievance the fine it's a written complaint concerning the substance of an action by toward an inmate by staff and how can you complain against requirement but if it's a requirement why isn't it on the for your honor i think that's better directed to the tender than harm you look at other circuits basically they say in order to exhaust you've got to you do what they put in front of you and what they put in front of him is form five eighty five i agree your honor and i and i fortunately the prison health service is a contract that form i think perhaps those questions are better directed to the state is peaches still still involved and no they're not there was a after a lot of complaints i think a few years ago on something in the papers i thought they were not no longer representing the i think even  grievance of your grievances nobody paid attention to me is the prisoner expected to name every person who works for prison health services or is it sufficient to say i have this problem and no one's bank in tents i don't believe that is  believe that you should if you have a complaint against somebody you should name them and that gets back to what i think we're fluking focus on the naming requirement in this instance because well but that's the point of your point is they should name of but are you required to name my answer implied requirement that you not meet any the fact that there's several page procedure it doesn't say that right ok you made it clear the the point i'm trying to make your honor is that before we get to the naming requirement we're focusing on his claim was that he didn't exhaust because his complaints weren't sufficiently related to what ultimately happened or what was often we diagnosed ok not sufficiently related to the need for a biopsy and i have real problems with that i mean how can you say that the july two thousand screens grievance was not sufficiently related to the ultimate biopsy i think if you actually look at that your honor and that's i believe to thirty two and it carries actually it carries over skips a page and carries over to thirty four the if you read through the actual medical grievance it discusses the care he's received from dr burns over a number of years and vehemently complains that dr burns doesn't understand what she's doing and that dr burns has diagnosis of like nose or a biopsy of the infection you say that you're denying it because that in august was duplicative of what he put in july now how can you say that in july he didn't have something that related to the need for i believe that the president health services interpreted the august complaint as being duplicative of the complaints he was making against dr burns and this goes to the notice requirement the he's continually making complaints that h and that's what the district court said ok how do how tell us how that's correct that the complaints were not sufficiently delayed into the need for a biopsy i mean i don't believe that the july grievance talks about not having the biopsy it talks about the problems he was having with dr burns action requested to have rammstein and bacterial and fungal culture performed infection and he wanted testing you know i'm likely the same thing i'm not a doctor i mean that's and the response was perhaps you've been diagnosing yourself but you don't have the knowledge and background that certainly doesn't encourage you to say i want d say that but the complaint is this is that dr ivans didn't perform surgery period this this grievance does not address dr ivans failures if i if the prison received this it would get rather than saying this burns or ivans what happened did somebody you would if you looked at you to found somebody previously had said that they would do a biopsy and it wasn't done and differences on the diagnosis use and what types of techniques are going to be used to diagnose those are medical malpractise type issues those do not raise differences of opinion or differences request on a diagnostic technique don't raise the level of a violation of the constitution what did they do anything yes i think a doctor burns's summary that you see on a one seventy seven is that you know she didn't treat him and didn't do some  testing in one seventy six and one seventy eight there's a whole host of things that you know he was he was seen and given some attention every time he went there he wasn't just ignored he wanted more to be done he thought there was an infection of some nature and wanted more to be good morning your honour's may please the court my name is stuart draw our simon deputy attorney general and i represent the state defendants in this particular case they are the state of delaware the department of correction former commissioner stanley taylor and former carney collectively known as state defendants judge randall you raise the issue of the guards to the prison officials in the prison system being aware being noticed as far as what mr jackson's complaints were and i think that's a very relevant point to bring up and i would say that with regards to that we have to look to the grave insisting but only briefly because from the state defendant standpoint agreements is not really the issue here rather what judge jordan did in the district court below forth specifically within the bureau of prisons manual and the district of the department of corrections manuals as far as what procedures are handled in different areas as far as grievances to tear track one is non medical one is medical and i will have to admit to the court that ice far as the medical is concerned and looking at the forms involved five eighty five versus five eighty four the non medical is more particular does require more specificity being addressed now by the department will be you know ought to there and my guess is that the grievance form relating to the medical condition is they really want you to focus on the medical condition as opposed to people exactly and particularly in light of the fact that as i believe judge shapiro indicated you have different positions on different call different times so be very difficult to say specifically that on such and such a date this doctor's response for that nurse or whatever instead you have a collective entity that being in this case at that time prison health services responsible for providing under contract with the state the health services available to the inmates and they are separate independent contractor acting  on the medical side the medical track that is something that quite honestly is not of great concern to the prison officials for those sole reasons that they have engaged the services of somebody an entity in this case personnel services who has the medical expertise knowledge and experience to handle medical issues and so therefore when the medical review says filed the process that is is set forth and goes in place is that the grievances conveyed to the medical care procedure issue you have a it looks like at one point the plaintiff here jackson agreed that your clients shouldn't be part of this that's correct  a motion to withdraw them that's correct he then reconsiders that a month later if he moved sends a letter saying i want to withdraw that i think there's a possibility that they should stay as defendants will let me according  august mid august of two thousand and one in september approximately a month five weeks later i believe was september twenty fifth the plaintiff files a motion to amend and all of this by the way is done pro se there was no help by counsel at least outside counsel up until the point that we came before this honorable court all this was done pro se and i think the court will have to admit that looking at all the pleadings filed by mr jackson he seems to be fairly articulate knowledgeable as far as what the ramifications are with procedures out in to be but approximately five weeks after filing this complaint he files a motion for leave to amend and within the confines of that he indicates that he would like to dismiss the department of correction as a party defendant seven months later in april of two thousand and two after due deliberation and careful consideration and is if we look to the wording of his motion filed at that time and believe was able to twenty fifth of two thousand  you look to the wording of that motion and in there it says i have determined and it i think the only inference you can draw from that is that he has looked at this over the course of seven months that he is determined that the state defendants are not not be aware judgment kelby i believe left office left the bench retired i believe it was approximately either december or january approximately three to four months after the case was first  case among others in two thousand and three and in two thousand and one shortly before he left the bench defendants myself on behalf of the state depends filed a motion to dismiss touching upon the merits and citing a number of the chances i mean i don't know where you're going with this december twenty ninth two thousand when you got a motion to dismiss the eleventh two thousand and two he did seek to file an amended complaint naming only the medical defendants and not surprisingly may fourteenth state defense that since the filing and through the discovery process the planet has determined that the attached amended supplement to verify complaint properly reflects the correct legal claims and defendants in this case and with the benefit of discovery saying he has claims against the state of delaware delora department corrections and then in january the case is reassigned to judge jordan and march seventh two thousand and three judge jordan granted the motions to a man never mentioned jackson sought to withdraw the motion to amend i mean i'm not sure where you're you're going i'm going with this your honor is that there was a pending motion to dismiss there was also a pending motion detector border filed shortly after the motion to dismiss was following the summer of zero one those motions were left hanging unfortunately when judgment calls he left the bench and until there was appointed by by another judge who could take cognizance of that and make and take jurisdiction make a ruling it was left handed but i'm what's the point why i believe well if mr jackson truly believed that the state defendants remained parties viable parties responsible parties to him and he did in fact follow discovery there were no responses to that discovery filed by the state defense of any point in time would have filed a motion to compel a response to that discovery if he truly believed they remain viable parties he would have filed a motion for sanctions he would have filed a motion for rule to show costs none of that is in the record there is nothing else in the record that indicates that any time in this course goes to the merits but any kind of notice was given to my clients of the medical problems or the delay involved which led to the filing of the suit because of that it is my contention on behalf of the state defendants  collectively were responsible for his allegations of denial valiquette medical treatment and notwithstanding the letter that he filed in may which i would suggest that the court was merely response to my prodding if you will of the court to consider and the november pleading that he filed when he talks about discover your honor there was no discovery propounded upon the defendants or responded to by the state defendants it would have given any credence whatsoever to a claim against the state defendants for th vatican medical treatment there is nothing in the record to suggest that there's nothing in the record whatsoever that could support that and i would suggest that the court that upon remand if that was the court's inclination and that there would be nothing discovered that would the notebooks were thrown away that that talked about scheduling dates for surgery and as it appears they've responded as we respond as fully as possible to the discovery quest that's not much of a it's not a response at all quite honestly on the reason for that is that we did not have the medical records they were in possession at that time p h s and they were made the subject of discovery quest propounded by mr jackson to the medical defendants i'm having  so the fact that copies of discovery are given to the state that's fine but they were never specifically asked for the state to provide that a result of the july letter was said and looking through the institutional records on the other files i don't understand the relationship of the discovery of this as and i don't understand if this was remained it would you then oppose the motion to amend the complaint or you would not in other words in his march series of march opinions in two thousand and three basically said they were dismissed by your own volition they will remain dismissed as parties there was and further in the end i believe it was the march i believe was marked the third motion memorandum an order an opinion judge issued and wished the judge indicated that there was a pending motion to dismiss on the part of the state defendants however i'm going to deny that is being moo far as the medical issue is concerned there's a separate issue here which has been brought before the court by counsel for mr jackson that being was an abuse of discretion by the judge below and did he err in fact denying actually in essence it worked to the effect of nine but by granting his original motion to dismiss in april of two thousand and two in which he said i want the state defendants collectively out of here and he had already asked that one of them be out as of september of two thousand and one just weeks after he filed by virtue of the fact the judge the contention is the judge erred by allowing them out the judge rationalized his decision by saying you asked for them to be out you made that determination and under rule fifteen now you're asking to amend to bring them back in essence for me to really recognize your later motion to withdraw the earlier motion to amend which would dismiss the specifically say report did not specifically say it but i would i would suggest in looking at the smug my guess was that if it wasn't brought to the judge's attention i would tend to disagree with you your honor respectfully so because i believe that in the wording of his order of march well of two thousand and three the court says when the issue was brought before the court concerning the legitimacy of the earlier motion and then the subsequent motion to withdraw the earlier motion attempts to reinstate certain defendants that he previously had specifically asked to be removed from this action his previous motions to amend or numerous but they did not affect the forward progression of the case the present motion however will  judge below did in fact address that he did consider he did not ignore it as characterized by by mr jackson's counsel at this point time he did consider that within the panoply of all the motions before him but he did say that there would be delay and prejudice to the defendants but indeed during the entire time the state defendants had been acting as if they were still part of the case they were responding to discovery so wasn't there error on his part in saying there would be any kind of delay or prejudice because everyone saw that he was trying to withdraw that and consider themselves part of the case i would respectfully disagree with that your honor i don't believe that was case first of all i don't think there was response of discovery the only thing that can be characterized charitably so as discovery that we believe that this absolves us of any further liability coupled with the fact that if he truly we believe we remain parties defendant to the action my suggestion and my my question is why did he not file any kind of a motion to  compel response by the state defense further response or follow a motion for order for to show cause why they should not be on the contempt for failing to comply with with response to discovery why did you seek any sanctions he knew enough about the rules to be able to cite rule fifteen and cite and file a number of amendments why didn't he cite to the rules dealing with discovery and possible sanctions to get further response he obviously still considered the state not withstanding his letter of late may of that year he still apparently considered the state not to be viable defendants and whatever discovery he alluded to later on in november would have come soley for medical defendants and there is no indication that the state were credibly that there's nothing they can give him now as to the issue of whether judge the district court ruled on the specific letter request to withdraw the motion that would have dropped the state defense it's clear that the district or did not consider that re the order in which the district court considered a later request to file an amended complaint that would have reinstated that was the november that's right this is a this is  later request that jackson filed while the letter requested to withdraw the motion to amend was and he filed a new motion to amend that essentially would have reacted the state defend its back into the case and that's what the district court later does the district court refer to the letter request to withdraw in fact the two docket items that the court know to your docket an eight and docket item fifty are not the letter requested withdraw so there's no evidence from this that the call our next case