and i'm going to give a brief summary of what happened she gets in the jail she's in a wheelchair the wheelchair is taken away from her she's given crutches she's  unable to use crutches and lets everybody knows she can't use crutches they take her to the vet a clinic at the medical clinic on the way to medical clinic she stumbles almost falls it put her in a wheelchair take her the clinic bring her back from the clinic put her back in her cell take away the wheelchair and leave her with only crutches and then the same says the tension officer returns later during the to deliver the food at the cell block door requires her to walk to the cell block door with crutches then takes the gives or the tray go then i want to set the table that's right there in the common area that the tension officer won't allow or requires her to walk with crutches carrying the tray of food back to herself where she falls  going through the tibia and the way i get the description that rod that leg lower leg twisted on that table on that rod so it was pointing the wrong direction she ends up going to the emergency room in the emergency room she ends up being released returned to the county jail she spends three weeks there waiting she's told that she's going to see each she needs to see her orthopedic surgeon and then three weeks later she's she ends up getting what she gets a deployment and then she's released before the surgery is scheduled now i think you have to look at what they do in that chronology which is helpful but the st encounter she has with the jail you you didn't mention the fact that there was a call to a doctor who said crutches are fine doesn't that sort of color the whole episode right there was that it's undisputed that there was a call on intake in a doctor gives an opinion mistaken negligent or not she can use crutches and then we have this saga of injuries all because of the crutches no i disagree ok the problem here is several problems number one you have the the doctor well you have the medical intake process it's flawed it's flawed because it has a someone who's not qualified doing the intake dr salazar testified that he me almost and i'm just pressing you i'm not saying i disagree that's that to me that's the difficulty and it may be our courts to blame i couldn't really ever find what th circuit law said intentionality under the ada needs i thought we said in a case called maraya that it's something more than deliberate indifference so yes they saw or stumble and fall so they are aware of that disability and they take no action you would get to a jury on that but what if it's the district court cites a case that says actually have to show they're showing her spite what's your answer to that what's the best case that defines what intentionality means for the a t f there is no twenty one is they fail to accommodate her disability when they're get letting her eat that's the tray episode but that's and that's the nd one is they failed to accommodate when they required her to be hobbling around on questions the whole time that's the most  own statement is self serving and that seems incorrect legally but the district independently said i don't see animists so what's your answer to that legally the americans with disabilities act was intended to protect the disabled to ensure that they had rights that were that they could use of k in public facilities the american disabilities act says we have to find something more than deliberate indifference is that our law or not no ok then so tell me what the right law is as to intentionality in the context where would we look and that's what i'm trying to say the americans with disabilities act prior to the american with disabilities act amendment had been so constricted so restricted in the use of the american disabilities act to protect the public that congress basically slammed the united states supreme court and enlarged the definition of disability to be able to allow plaintiffs to pursue their rights under the act now to try to go ahead and make a more restrictive with something stronger than deliberate the difference would be go going counter to what congress of the big the big problem here is a lot of these policies are created because the the pastor county jail is not eighty eight compliant and what's happened is the county i think it shows intention a lot of their policies show intention because what they're done what they're doing is they're trying to decrease their costs the cost of operating the jail if you look at inmates health the less treatments can be given the policies in regard to delivering food having a policy requiring if you had any if you had a busy for delivering food to inmates using crutches that policy would require two inmates to detention officers to be present during the delivery of food one is open the mechanically open the door and then the other one is to go inside the cell and deliver the food to the two of them but instead they have a policy where they have a floor car where the detention officer who delivers the food has to see the inmate at the cell block door it's kind of the floor card issue there and what that does is it eliminates the need for two detention officers to deliver the food if you have the person coming to the cell block door you know what you're doing is you cutting cutting back on labor the failing to have a policy to provide prompt medical care and requiring the state of texas to commission the jail standards requires prompt care for acute emergency situations if you had that kind of policy you would have to have he would have to take these care for acute emergency situations you often see the health services plan for the county are away two thousand and fifty five where they say it's provided as need arises now what all that  delays i phrased it in that various ways but delaying medical care to inmates not expected to remain long in jail there are humanitarian releases where they try to release the end date before the surgery the scheduled before the doctor's appointment all that is intended to do is decrease their costs so what's happening is intentional this individual was complaining and khorasan response and basically lays the blame on the county for not having enough detention officers to bring inmates to the on site medical clinic ok on site where you can imagine what it's like taking inmates to offsite facilit jail and she was then rushed to providence hospital which is a private hospital and el paso texas and it's important to keep in mind that and at providence the surgeon inserted just one screw and the experts in this case and the revision surgery show that what she really needed to properly sticks the rod in her leg was three screws so the surgery th record testimonial and record evidence to suggest that when she fell her leg became deformed so it's possible it wasn't structurally sound but then if in jail they create a situation that she then and i'm not sure that i can agree that she actually reengineered her leg when she was taken to university medical center she was released from the or in just five or six hours it was early the next morning and dr white and  only it seems to me you couldn't have a more classic ady a violation than if you say to someone who has a boot on a broken leg use your crutches to come carry a tr and i don't i don't think it's in the record very well that established that that actually happened for one thing officer there's no there's a dispute there's a genuine dispute that officer gobby law wasn't actually in the cellblock that day also lopez was in the cell block that day and everybody who testified about how food is actually delivered is that it's delivered by hand wine because it's the right thing to do there's no dispute about that and also because it's faster but you would agree this has to go to the jury if there's evidence in the record that she wasn't delivered or food by hand i would not because there's an intervening cause which is that the doctor said that she could use crutches and he was not or didn't say use crutches and somehow magically carry a tray to i mean that's just physically impossible well there's a difference between weight bearing and non weight bearing when you are moving around on crutches and there was no distinction that was wrong for the officers the officers were simply told she can use crutches she can get around i don't the by relying on the doctor you don't get to the intent element of the a d f no again we're just asking is there dispute the via if there is any record suggestion the divvying was the one who was helping her down the hall to the clinic caesar stumble catch a server puts her in a wheelchair but then it's divvy up the goes to the door and says you've got to come walk to the door to get your food and carry it back with crutches right if there's a record to support that scenario there well there's not because there's still the in i'm asking you to assume if there is record evidence to support that would you agree with the magi to go to the clinic for evaluation so the clinic once again intervenes and is the intervening shakhtar between what happens next in terms of the fleet salazar nor the clinic in fact well to point salazar in the clinic never make it legitimate it's a reasonable accommodation to give her crutches instead of wiltshire plus carry something while she's using crutches there's no medical evidence of that anywhere no one and then number two correct me if i'm wrong on the day she falls trying to carry the tray with the crutches the prison it's had already said give her the wheelchair back they've done that at ten thirty in the morning she fell sometime in the afternoon is that correct the idea that if i think you are correct  the jail had said she could keep her wheelchair as well as it approaches now the challenge is is that i don't think there's any evidence of the the wheelchair will actually fit into her individual cells or that's or that that's actually minute you're not addressing the absurdity of the facts it's not going to help her get to the door to get her trade it's outside no no no i mean let me explain how the jail the set up what i was getting at is these are cell blocks there's eight on one side and eight on the other so and in the middle you have a common area so you could if it were necessary and accommodate her by putting her wheelchair outside her individual cell with her crutches inside the individual so i didn't i wasn't suggesting that it would be proper to put it outside of the cell block and i don't think that they're just asking how can this lady eat right margin someone crouching to a door and then somehow also carrying a tray back and lo and behold she i agree that that is the discourse has never decided what the intent element is use that right since there is no doubt are different right are you there who are saying even though you describe it is the element you don't think it is the omen that no i'm saying that you don't need to  we get to she doesn't get delivered and you're denying intentionality so help us to understand if the phrase you just used equals intentionality deliberate indifference i would have thought it does if it doesn't tell me the law that is something more  what does something mores the st of all i agree that it's a useful framework and what i was getting at is i don't think the discord is ever decided what the level of so when i use the term the living difference in the contents all i'm saying is if that's you know the lowest of the the court would accept then she doesn't get there because all she has is an allegation of rather serious negligence and wheelchair but then disappears the one that brings the tray and expects her to walk with the crutches she knows she can't even walk on without a trace how is that not deliberate indifference i don't like it's close to spite and that you allege is but also we didn't have any further direction and those two days as to how to go about accommodating other parts of the direction that they got were rather explicit she needs a bottom bunk she needs her own so she needs her own cell in a lockdown cell block for safety purposes what is it you don't make them do you think we don't make them do it in the way she would do you know if you well i was returning to my my discussion with judge higginson that the testimony from all of the officers is medical cell block is how they had it at that time they if they know they opened the door and they handed in to they walk him their testimony was they walk in and they hand the liver to each individual self in part because it's faster maybe i'm picturing is incorrect you told me to use to use one on either side or a common area in the middle perhaps do they walk into the common area are they walking into her individual say the testimony from the officers was that they walked in they walked into the common area and then walked in each individual cell and hand the liver the city by so the answer is no they do not walk into the got to get to the door with crutches and carry trade back that seems like a failure to accommodate it's intentional if they walk into the cell and put it on the table for those inmates that can't move around and i thought that's what they said they'd it even if somebody was a little bit sloppy and said and to get to the individual cell or made her come out they were all relying on dr salazar's or her and the barely two days that she was there while they were trying to figure alternative to the wheelchair there the fact that he didn't convey that to the guards and not her fault now i don't think it is but it's also not often not following up as to how to deliver her food there's a difference between doing something less than perfect or even doing it wrong and doing it with an intent to discriminate against somebody other the way the money was she does get found o r with the food around her right that isn't her own testimony that's a gourd signal which in her cell i believe so so that doesn't sound like she's sitting at the table in the hand it to her that sounds like not just self you know her testimony that sounds like the the prison officers themselves confirm that somehow she had died in the middle of the room and she's on the ground with the food around right i don't i don't know not sure what you're getting and i don't think there's much  just me about house in the south i guess i'm back to this it's it it seems to me even if crutches would work with a boot to get around crutches with a boot do not work when you're also being asked to carry a tray that needs two hands just physically seemed was allegedly required to do that as to the nd eighty eight claim that it was actually also an e t a violation to not give her a wheelchair because it was obvious she needed one throughout is your position what i thought the magistrate and district courts position was which is that a wheelchair is always medical treatment is never an accommodation that could be required under the do you think i'm reading their piece there or their decisions correctly and if an appropriate accommodation under the ada the difficulty here is that everybody thought that she could walk on some level and we go back to providence where the physical therapist and where the doctor were telling her she needs to be and that she actually completed the act of walking fifty feet on her person already judgment wouldn't be appropriate because wheelchair is never needed when quite chiz are offered you are resting on that position please if you have to do a reasonable accommodation and a person has a broken leg i was wondering whether you were urging as a legal position that crutches would always be sufficient no i'm i am urging that they were sufficient here but you're not urging that as a matter of law i'm not as a matter of black letter law you know and we pointed out in the briefs there are many times when courts have sided with us or with our position but no i discussion about everyone i think agrees it deliberate indifference is the standard under section one thousand nine hundred and thirty but there is a little bit of an open question as to whether or not it is a standard under the americans with the defendant have notice and it's obvious to them that they need need an accommodation and they which they can give and they don't give it then that's all they have to show and what they have to show st of all th wheelchair the dispute about is the fact that the doctor had said on some occasions she can keep the wheelchair and on other occasions she can use crutches and so what i'm saying is if there was confusion that the officers failed to clear up about whether or officers didn't have the knowledge we're not required an amount of time that is i mean you may answer and what i'm getting at is that the officers have to have knowledge of what we're not required to accommodate the actual disability we are required to accommodate our limitation and if the officer didn't have knowledge of what that limitation was then i don't think you get to that even though deliberate indifference standard give approaches to use as an alternative to the wheelchair right but that's that's the point is why can't the officers rely on that and say you of listening to what was going on here and i got a couple of concerns that i have st the use of our line in the united states supreme court case that should be applicable in this case they set forth that he made wasn't based on any reason to medical judgment there's discussions about the alternative and his saying it's an alternative there's genuine issues of material fact  in connection with his testimony on that there's a lack of credibility we have the detention officers and the prior orders that were given and you'll see it probably more clearly in the response to summary judgment but these orders for may keep wheelchair may keep blanket may keep all that is is and the authorization that that person can have that we had one detention officer testify to that  if the doctors if if if there was any negligence it occurred after the i think i've said this before it occurred after it's at after the medical intake dr salazar didn't  had a and l v n doing the intake l v ends you know that the county tried to come out and say hey you know this is they're authorized to use by law to be able to do it and that would be an registered nurse because here they're operating illegally using an l at the console at the guard station can you help us clarify with the line of questioning before was it the officers testimony that normally they would walk the food into the cell right to the table for disabled inmates or or do they leave it in the middle place or do they just come to the door what are the officers ok i want to clarify something in that regard and point out something that has risen and then we'll get to it the trustee puebla ok he's a witness in this case he was in the jail when he gave his declaration he testified to the procedure and it's the same procedure what he says to the procedures are used one is that they'll take it to the door take it to the inmate other times they'll just force the inmate with crutches to go to the cell block door he describes one incidence incident with a and then made by the name of chivers who he gave a description so that they could try to figure out who this guy chavis was and he said chavis was required to go to the cell block the war and carry the food tray and that he intervened and grabbed that food tray to help charges because he knew it was impossible to do it the officers dark the officer did testify that there are two ways to do it ok that they