this case is an eighth amendment challenge to confinement the conditions of employment here the discreet question is whether the record evidence contains facts that demonstrate the requisite subjective knowledge to maintain a federal deliberate indifference claim against defendants dr rodriguez garcia a nurse  harris excessive risk to inmate health and safety here is a risk of let me help you we all would agree sending a female to that male prison is an excessive risk of health so the question here is purely knowledge  record she's booked into that jail that female she is your owner and everybody is strip search we all know that i can imagine the doctors when when you got a correctional we've had cases saying you can't strip search people upon booking weaver said you must and it spawn because the contraband even body cavity strip search when you go in right correct and that's an allegation here rocked and was was for just by a female who said she's female ye ok and then the summary medical form says quote men a pox medical so if a doctor is even saying ok you got this patch we've got a pause right in the doctor's record is that right correct and is that in this record as a document you all attached on the twelve b six proceedings that would be part is that no actually i think it's a summary report that says the investigation was done i got it remember summary report outlines everything and one of it says is that the prescreening medical assessment adot the head said quote menopause medical right correct your that's a summary of the medical records we don't recall that you said they had subjective notice correct what else have you got so she's she's booked as a female she strip searched like you said she's put into the orange jumpsuit for females her file has the blue tab indicating female on it everything medical records says female according to at least right the nurse directly asked her if she has female and she says i'm female to a tree she replied in the affirmative yes and then the deputy tells them when they say trance par her she's came out correct which one was that  all the one deputy jones was the one transporting back and forth she had initial concerns based upon her subsequent to learning that she had been classified as a really the question on that is did they know i know they say a lot believe there was a question but the question is whether they've put in enough to have their credibility checked i mean they can't just say i know  i thought she was a male and that's not i mean fuse now but she's male that's enough there's a jury a shoe as to what they thought we believe so yes ok and this is based upon sworn statements given by the officers ok help me was a state law loss of consortium claim is that all he's got that's correct and then i couldn't figure out if he does appeal right is he a party on the peel that's the problem ok well that's the problem correct that's helpful so as you pointed out there's no question that the nurse had subjective knowledge that this speech arto was female well of course there named common plain meaning reached a judgment about their decided so you you've ruled out her subjective knowledge that the plaintiff was in fact fight it out of the case based upon these facts it's our position that just because the nurse had concluded that she was female doesn't mean that the nurse actually believed she was female how can conclude something that you don't believe how can you reach a judgment that something is true if you don't believe it's true i'd point you to the statements made by officer jones and officer mormon regarding what they were told by nurse harris i understand that but but you've also affirmative i've never seen a case like this you've affirmatively pleaded that she concluded that the plaintiff was not famous i mean you didn't you didn't plead simply that she did not add that the plaintiff was seeing that are that she expressed to others allege that she was aware she knew best case against the nurse of course she was aware of a high probability of facts but resisted opportunities to obtain final confirmation  that but no day quick has a little bit cryptic and parts says that that's still an available opportunity and i'm with him i'm misreading farmer you've got to have no actual objective that's exactly right your own as we understand footnote eight to say in farmer well the obviousness of a risk is not conclusive and a prison for the official may show that the obviousness escaped him he would not the scape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true so let me ask you something considering the fact that it was open and obvious that the dangers of putting a female  male population isn't the real question that we need to address here whether the defendants consciously disregarded the substantial risk of being wrong the pie chart go was a male yes and that being the case here don't you plead that you know things like that officer jones had asked harris at least three times whether she had strip searched or physically checked the charges anatomy and and harris fact i would also like to extend that to the doctor as well the doctor's testimony in the internal affairs memorandum says that he declined to ask mrs bush arto whether or not she was a male or female well as making this determination and he intentionally declines to ask her saying that this is a uncomfortable and an uncomfortable question to ask her i guess he weighs that against wrongfully sending her to the male population well but but he wouldn't event down by what she told him anyway i guess you're better argument is he could have insisted that she submit to a physical examination to confirm a process that was accepted that if there was any question at all the doctor was supposed to conduct a physical confirmation and physical examination with a nurse present in the room a fractional staff that's correct your honor there is a procedure that wasn't followed and nurse harris also writes in the done them to the medical form stating stating that transgender male parts female tendencies didn't the doctor also ask mr mr charter whether she had had whether she had all of her genitals and whether she had had surgery on her genitalia yes  and and the chartist said she did have all of her genitals and she could not have surgery on her genitalia and yet he still didn't physically examined her no and he had enough of a question that he asked are these things apparently well that the question actually indicated a subjective belief that she was transitioning does it not are had translation i mean that and i'm not sure that indicates a mental state of the doctors that helped to you the only reason you would ask if somebody still had all the general culture and had surgery on the genitals is if you subjectively believed that they were transitioning or had we would say that if he's asking these questions and he doesn't follow up with a physical examination we think that evidence is a deliberate indifference to the risk of this classifying which is exactly what occurred  despite his knowledge of a substantial risk of serious harm if he's unsure whether or not she's male or female he signs the the form saying deferred on on the question of generals on the form he says he says deferred which means that she gets searched later but at the same time in concluding with her he agrees that he's sending her to the male population so he's sending her to the male population deferring on actually searching her and searching you name step search  ever figure out why they don't just check the booking and they have a given explanation i know you're well basics what do you mean you're not and i just look at what the booking men know don't don't the ma'am please the court council members of the panel my name is bernie pastore and i speak on behalf of dr garcia rodriguez garcia good morning the issue here is whether a prison doctors mistake and we all agree that this was a mistake and making a gender determination amounts to subjective intent to punish violation of the eighth amendment particularly when the plaintiff has pled that the doctor's mistake was based on his belief that the plaintiff that the inmate was a transgender there's no doubt about that and that it was a mistake for which there are remedies and there are claims in state courts take all claims for medical malpractise even negligence but nothing in the pleading suggests or alleges more importantly that the doctor took action or failed to take any action with subjective intent to impose her to a substantial risk of harm or to punish and when we look at the pleadings and i know we've spoke we've spoken a lot about the nurse but with the doctor the facts are far more discreet and limited and they're simple after sees patient doctor sees the patient for about forty five minutes with no knowledge of what went on outside all this going back and forth between officer mormon and his harris and all the all the corrections officers outside the doctor has no knowledge that of that doctor notes at the patient is taking hormone replacement therapy arthur knows that hormone replacement therapy as alleged what do we make though of the fact that the doctor purposely didn't ask pichardo why she was taking hormone replacement therapy because it was quote a difficult question to ask well he does ask questions i mean he makes them as right but he doesn't ask why you're taking he doesn't say why are you taking hormone therapy any makes a conscious decision not to do it because he thinks it's a difficult question to ask how does that fit into the analysis doesn't express it doesn't show that he subjectively intended to punish sure that he subjectively believed that he was placing her in harm because he believed she was a man and the mistaken assess it doesn't it show that he may have had some question as to whether she was a man or a woman well and he did ask questions and in retrospect we can argue that they were in artful or ambiguous he asked her well he sees a chart on the medical record he assumes mistakenly that the inmate is a man then he proceeds to ask a few questions do you have all your parts but then he says also in addition to saying he didn't ask why she was taking hormone replacement therapy because it was a difficult question to ask he also says he was too uncomfortable to ask her whether she was a male so we have sort of these two kinds of issues that are creeping up in his mind and he has made conscious decisions not to ask them even though he knows that sending a woman into a male's facility is extremely dangerous and a clear and obvious danger what do we make of those two facts that doesn't rise to the subject of knowledge that's required in the eighth amendment again he asked the two questions which in his mind it was wrong in his mind it confirms that the nature of the questions he asked assumed his mistaken impression which was she was a man so if you have your sex part yes that confirms his mistaken assumption have you had any operations no that again confirms his mistake and his mistaken assumption that he receives these answers he makes a notation training yes but nothing in the pleading suggested he subjectively knew that that she was a woman or that he was placing her in harm and when we look at the pleading i believe chief judge mentioned several allegations through eleven in each instance there is a specific allegation that they all believed she was a woman when it comes to the doctor in paragraph twelve of the complaint we have what's already been discussed which is what you mistaken believe it was an error it was a clear error and so throughout the the initial isn't that kind of a red herring i mean what does it matter what she alleges with respect to people who have a r who she has an appeal to about because that's what the issue of knowledge i mean they specifically pled at least seven times with seven different individuals actual knowledge that that mr target was a woman when it comes out th actual knowledge and the absence of actual knowledge of what what and twelve this actually if anything is is more favorable you but paragraph twelve what they say is the doctor wrongfully that says you can also have a law bill if it's the defendant was aware of the high probability of facts but resisted opportunities to tame final confirmation simply i'm not sure that's offered as an alternative to actual knowledge and if there's a high probability of facts from his perspective from what he's told that he resisted opportunities to time final confirmation he still was at least that still deliberate indifference route i think if he had just seen the record and done nothing and just classified immediately that perhaps could rise to the level of subjective knowledge or an inference that it was his objective knowledge if you actually want to add and physically examine her and right but again in our situation he mistakenly just assumed thought believed consciously thought that he was a man and if he thought that despite asking several questions in light of that he could not afford and he did that based on what just that she was taken hamann replacement that was the only thing he did right that's it the allegation it just says harmon replacement in a might get into the test yet i'm just trying to incident report i guess or the investigation the medical records for her were c and they reflect the following c h s prescreening assessment form dated november for at six forty four i think that's the day she went to medical right that was part of the prescreening right that was right right she's in prescreening and november for six forty four she's in the medical replacement so that was kind of weird but let's just assume is that reference to hormone replacement your doc to rely on correct it's unclear that that record because they were booking records it's unclear  purposes of the motions miss wright the document itself i don't believe was part of it remember ok so we have to take this case as part even on a motion to dismiss that the doctor had next to hormone replacement and that same prescreening menopause medical right so he saw ok so if you see what he sees home on replacement and saying all right i'm running out of time and i want to dig into that but we also would argue that there was a failure to play the if a man of about a nation as a result there was no underlying constitutional violation which then bleeds into the issue of qualified immunity which has two parts and we are you as well as we did in the brief that the issue of clearly establish wasn't raised below so it was waived and then it was an it raised in the in the initial brief either i said as to the  actual knowledge on the part of nurse harris such that there was a deliberate interest indifference to the substantial risk of harm by inmate sharda but did you want to address the chief's question with respect to that he thought no it in farmer ye so i would respectfully disagree that nurse harris resisted opportunities to obtain confirmation what we know from the allegations and looking at the report is that harris concluded that this  inmate was a potentially a transgendered male and because of hormone replacement she then had a conversation with officer mormon opposite mormon said oh she came from booking she's a female and nurse harris again said well out we'll see and then she took the inmate along with officer jones and escorted her to the evaluation where she was to be seen by a physician in transit there is the allegation which a nurse harris denies in her sworn stating which is also part of the items it's a motion to dismiss we have to take it in the light most favorable to the to the plaintiff then nurse harris had a conversation with the inmate in transit and asked her if she was a female and she had female parts keep in mind however that nurse harris has stated that she doesn't speak spanish and the record is we replete with evidence that the plaintiff only spoke spanish and then you get to the evaluation with the physician and the physician goes behind closed doors there's absolutely no allegation that nurse harris was present during the evaluation and whatever form that took up until this point there has been no one who has addressed inmate bush arto in a physician patient relationship in her native tongue in a closed room where they would have maybe a more forthcoming conversation what plaintiff alleges without a doubt in this complaint consistently is that nurse harris knew concluded insisted that this was a male and to the extent that she had an opportunity to obtain confirmation that confirmation came when dr rodriguez garcia on his own based on as is alleged in the complaint his own review of the fact that this inmate was on hormone replacement therapy came to a similar conclusion at a different point in time that she was a transgendered male so to the extent that she had opportunity to obtain confirmation in her mind that confirmation came when this inmate had a closed door interaction and evaluation with a physician and it was after that about you ation that the physician comes out and says this is a male student and officer mormon to rely on the evaluation of a physician in making the assessment of whether or not this is a male i don't think that we can hold her to the standard of saying i'll check means only i will check but that there was be some process in place by where b inmate would be checked and as far as nurse harris but would they allow the male to do it without a nurse witness now so she would have to be banned there and so should never be unchecked well not necessarily your honor respectfully because there's more than one way to skin a cat so for example there is a procedure in place whereby a nurse and a corrections officer officer need to be present if there's going to be a strip search but that's only if there's are doubt so if dr rodriguez had assured himself that he had no doubt there is no need for that procedure and if nurse harris believed that dr rodriguez had somehow obtained the information for example if he had asked her in her native language in the private setting between a agreed the summary of the medical records that was an exhibit in the motion debate is part of the record here for a ruling i do iran ok and do you agree the paragraph from referred to your you're familiar with  so we have to take this case that the doctor when he looked at where it says home on replacement he sees on the same page meant a pause medical is that correct i know you have a different outcome here but we do have that in the record yes your honor that i was not in the right now only reference of hormone in the medical record also has menopause medical and is it correct that it says adam again we have to take the allegations in the lead most favorable to the plaintiff here isn't there an allegation the nurse tara signed a medical health services incident addendum that says quote transgender male parts female tendencies yes and what's important to know about that specific action taken by a nurse harris is that this that comes after dr rodriguez has evaluated the patient made the two am notation that this is a male and it only comes because officer jones after calling her her supervisor sergeant price gets a recommendation from sergeant price make sure you have a notation in the in the record when you're going to walk her down and take her back to the male side so that what that speaks to is that after confirmation from the physician nurse harris's doubt if she had any is cemented in all that that shows well that without a doubt she had the knowledge that this was a male therefore there was no heightened understanding that she was going to be placing her fact so if that's so then one has to wonder why she would deny having signed it i mean if her story is well that's what the doctor told me so that's what i put down why did she deny having signed it well what she said in her statement was i don't recall having signed for therefore yeah i'm denying it but then what she said is i rely upon what the physician said and if you read officer morgan statement the after the facts assessment because she didn't recall it but she also stated that she relied on this physician's closed door assessment one on one with his patient in her native language and reasonable for a cheat sheet of some of the things she said are inconsistent with other you know with other facts that are alleged in the record for example there's now legation that she's the one who first brought up the fact that that are the i guess the the rationale that because ms pichardo was taking hormone replacement therapy that she must be a male who was transgender rights correct i mean so that's inconsistent with her statement as well again since we're on a motion to dismiss why wouldn't we take those allegations in the light most favorable to the plaintiff here you could and you would still i would argue come to the same conclusion and more importantly the district court did and looked at the allegations completely disregarded what nurse sarah said about what her motivation was and what you know her after the fact statements were in the complaint in the order of the district judge goes through all of the is consistency goes through the facts and relies almost solely on what is alleged in the complaint so it's clear that the district court didn't consider it and still came to the conclusion that there wasn't the requisite knowledge for deliberate indifference in this case any further counsel or any further questions chief judge chief yes i'm sorry  so you wouldn't hear me flippant but i just counsel let me ask you this for present purposes we have to take it as given that your client speaks spanish right communicates in spanish so nurse harris communicated with her in spanish according to officer mormon and makes chart of facial expressions appeared to be offended so she asked nurse harris what she asked her and nurse harris replied that she asked her if she was a again we call that mormon doesn't speak spanish and what she's getting is a synopsis of what harris communicated to the inmate yes but that but harris is telling mormon in fact well i communicated whether this wh i asked this why she said right and that we're speaking spanish so she can speak spanish well enough to understand and be understood by the blindness which is the only level of communication we're concerned with here but also consider that in the light most favorable to the plaintiffs right yes and that doesn't take away from the fact that there was evidence that this was a female we know that from the booking record we know that from the purported statements that the plaintiff was famous because she didn't speak spanish no that's not what i meant and i apologize if that's what the court well then what what did you me what i meant was that it was reasonable for nurse harris to think that she had in fact obtained the confirmation that we're talking about in footnote eight a former when this patient goes into a closed room with a physician and is able to communicate in her native language as that to me that buying implying that she couldn't communicate in her native language with nervous parents why did you write the point i'm trying to understand your position that she that nurse harris didn't speak fluent spanish inmate in a room that she knows is a physician in a one on one conversation in a private setting with someone who speaks her native language it would have been reasonable for nurse harris to think that this physician came to a conclusion that was well reasoned and substantiated by his evaluation that was my only point in raising my does that matter to that point whether nurse paris speaks spanish or not because if she doesn't speak spanish well enough it may have been a miscommunication on either one of their part and the fact that she spoke spanish well enough to ask the plaintiff these two questions and to get an answer from the plaintiff in the case that your point has twenty six quote factual and of quote basis right no it doesn't your honor respectfully because what the case law says is that yes we have to take the light most favorable the allegations in the light most favorable to the plaintiff but to the extent that there isn't a document that is attached and is relied upon heavily and that that the exhibits contradict what is in the pleading then the question consider those documents and present purposes twelve basics and these documents attached that nurse harris can communicate and did communicate with the plaintiff in spanish because that's what the internal affairs report sa understanding the correction department that that they that someone who is transitioning faces no danger from being put in a cell with forty men in a prison no i don't believe that i believe that what the classification should be and was is what was the biological genitalia of the inmate and then that's the corresponding classification that they would have but the record shows that even in this case where the inmate was believed to be a male with biological parts transitioning to females he was placed at the front of the line when he was being made for started his place at the front of the line when they were being taken downstairs to have a better view and she was pleased to where she could be it just occurred to me we get down in the details and the overriding assumption is it's ok to put a transgender are transitioning person into a cell full of males i believe it's not the first time that that takes place in that's why they have a designated bunker where they put these males that are transitioning to females but the designated bunk is not in  not that i that i understand as i understand that designated bunk was closer to the guard so they could keep a better eye but it was in a cell with approximately forty other male yeah what should they guard running in before forty miles could would have been born male transgendered to a male trying to understand what is the requirement before they take someone trends edition ing or transgender to the male prison my understanding is that there is we've just heard no services counsel say that the determination is made on the biological genitalia of the inmate and yet that wasn't done here a simple search a defendants haven't set forth one good reason why the search wasn't conducted here if they were going to change an inmate's gender from female to male you have the nurse being specifically told by the inmate that she's female you have her intake records indicating that she was strip searched and determine a female a booking she's given the orange jumpsuit as a female she's placed within the female population and the tab on her file says female now you had officers who didn't believe that she was male officers that were in place that could have prevented mrs wishart o from being placed into the male population yet you had nurse harris tell two different officers not mistakes not questions but lies you had nurse hairs tell officer jones  that she was a man when asked point blank if she was strip searched you know the nurse hairs telling officer mormon that when miss pichardo was searched in the doctor examination which she wasn't that when she was searched everything quote fell out to which officer mormon indicated to her that meant penis in testicles so you have nurse harris making these affirmative representations respond no knowledge she wasn't in the room miss pichardo never stripped for dr rodriguez garcia and you have nurse harris writing this assessment this agenda to the medical assessment saying quote male parts that one of come from the doctor because he never strip searched her we don't know where this came from you know a lot has been made by the doctors counsel as to what was pled that because it was pled that the doctor believed she was a fit she was a male that he has no liability here for deliberate indifference but we keep it this is a twelve b six motion we incorporate the internal investigation memorandum we incorporate the doctors the officer sworn statements and here we have sufficient record evidence to establish that this this belief was unfounded don't you by using the word wrongfully instead of wrongly to modify concluded his does that polluted to the process that used in order to come to this so called conclusion as opposed to what the conclusion itself is we keep coming back to this footnote eight and a failure to to investigate when your sister only suspect that facts may be true and you have the doctors multiple declining multiple times to confirm this suspicions i guess questioning whether or not she's a male because she's on or moan therapy when he also indicates that he is aware that pre menopausal women take hormone therapy so he is aware of the potential that she is in fact a female and yet undertakes no investigation to ascertain that and files his reports that says send her to the general population and deferring on the issue of her genitals which means that they'll be checked later so you have this report