or here wasn't this medication provided about a year later and and while it's a serious disease it's also one that goes to go fairly slow it seems like the opposite of  y in many cases but i think this presents an unique situation in which plaintiffs are incarcerated they have no ability to obtain relief on their own they have no ability to seek outside medical care and so going to go on the way because jews tell me what's become of the case the crew some wrong i thought those were all pure injunction cases and that's what you had to deal with there really was a picking off fear but here in this case they're not picking off if they want to pick up that paper money damages so the case that's going on so i guess i'm just really causal by your implication that exception just doesn't make sense in a world in which case is going on they're not picking off the money damages claims so what am i missing they're not picking up the damages claims that they are picking off the claim for relief that stop and change in the overall policy and if the damages claim goes forward could you get injunctive really be fair that would apply to everybody or with the most you would get would be simply a check for these couple of if there is if there is an underlying d issue about how this state or other states should handle hepatitis c and we didn't get some get the ruby the policy change that the army was the princess the best of all worlds that means you're getting paid without showing you deserve well it is and it has made clear in the complaints and through the briefing that  in the th which are you know both cases where they they pretty much gave pretty short shrift to your overall fieri the managing managing these hepatitis c rather than going in with the treatment that they want fairly early on is an adequate way i think one of them actually looks you know what whatever the medical measurement is  relying on the score or the scores useless well it's problematic to rely on the score you know cloaking the threshold and this sort of arbitrary a p r and criteria can be a helpful tool when considered in conjunction with a number of other individual we also know from the complaint that in an imperfect measure the progression of the disease some of the reliance on it actually results and perhaps further delay for any care can be provided because it doesn't accurately measure the degree of deterioration of time you should have what takes there's been no discovery of you don't have any information about when they started you're not alleging you're not alleging that anybody else ordered the answer doesn't say that others are getting it as far as we know we simply don't have those facts either way we simply don't have those facts the only information we ha litigated before the judge or a jury as to what is the standard of care you know is is allowing progression a reasonable medical treatment etc right that's correct you what's what's your response to their point that there's no medical individualized medical judgment your honor that is contradicted by the face of their pleadings as the discussion earlier reveal the protocols take into account the individual circumstances of the inmates by virtue of that they rely on the a c r ice or among other considerations other blood or whether they have diabetes a biopsy that's called or it's all within the exclusion and inclusion criteria all of that is an individualized assessment and one can debate whether the a p r life support is the best diagnostic measure we know from a spell that taking choosing among diagnostic measurements is really a classic instance of a medical judgment that is really beyond the purview of the th amendment to regulate but it is a measure and their own  cuts in favor of concern that literally at the same time there's this court has said as recently as reinhardt versus scott a couple of years ago and many other times before that that it is a very tall burd left aren't they absolutely denied so under the old policy your honor i think that's a fair reading i will say that policy is change and regardless it's not at issue in this case but i think that that is up there reading yes that but that policy is not insurance because there's no allegation whatsoever that these inmates have less than four years left in their sentence but it was you're not you're not saying that with the conviction one likes to see it's a judge and i can understand why i mean not it's not i actually appreciate it if you can't say with conviction or there's some uncertainty that's helpful the new policies and in the record ready the new policy is not in the record and i will admit you know we didn't really develop an argument about this on appeal it was really more of a can your candor to the court and that's why we mentioned it but if mitt i mean if in fact you have changed the policy and people will be getting this crowd i mean maybe there's something left here in the sense that i mean i realize there's no hall to go but the true you to go into in disgust is but i mean it sounds like maybe in fact you've given them the class release that they're looking for go ahead you know it's ok if people as we say the new the new policy is not in the record you say it's great but obviously some prisoners might not think it's so great would be from your point of view the appropriate remedy simply for them to bring a new action and explain why the new policy also violates the th amendment or would that be judicially insufficient and we should somehow keep that in this particular litigation they can see whether you're waving a yellow or red flag there you go your honor there are two minutes in four seconds remaining ok great thanks go ahead yeah because the policies take into account individual circumstances so i think we have to read that there are some cases law out there that suggest that cost can't be the exclusive or the sole reason we just think that that's you're an expert on is your clients and you're not denying they're receiving the drugs they ask for yes our clients are but again the broader question of whether or not there has  what the plan is i mean if we send it back put a new policy and of course there's going to be qualified immunity at that point this is the same district court that ruled as a matter of well this court is of course free to make that finding however again because the argument has and we don't think this court needs even reach the question ok all right thanks so much we appreciate your helpful arguments and