i would submit to you the summary judgment decision of the district court should be reversed in april of two thousand and fourteen contactor was arrested essentially because he was behind on his child support five days later that it rest turned into a death sentence because despite his repeated requests he never got the medical assistance that he was asking for that i would assume it is a violation of planned hackers constitutional rights to be free from the deprivation of life liberty and property without due process his medical treatment that he should have received there is a constitutional violation i think that's basically what you started out saying that that's not correct is it but because he denied he was denied his medical treatment that he was asking for repeatedly and i think well you know if the recall there wasn't a time where no one responded the regrettable circumstances here is that they responded that they thought he had the they thought his problems emanated from the toxic from overdosing yes there certainly at least some of the defendants thought that he was withdrawing from heroin and that was the source of his problem he thought that was his problem too that you know that's not very clear obviously we on site on friday afternoon and a little bit of testimony from another another inmate whose testimony frankly was a little bit all over the board but his testimony was that they had talked about detox so there's certainly some evidence that he thought that's what was going on is not clear not entirely clear to me there's not a lot of evidence in my view more importantly i think this young man who had a high school ged was far from a medical medical doctor and probably wasn't the best person to be diagnosing his own conditions even is there anything on the record that where he told any of the medical personnel that he had had also problems in the bios you know in your honor there's nothing in there in the record other than one very brief statement from steven denny that other inmate who you know that's just the other end that's the only suggestion that mr hacker even knew himself that he had that he had a history of losses this was not a man who went to the doctor frequently he was in his mid thirty's his girlfriend who had been a long time living girlfriend his mother and his grandmother he lived with at the time just before he was incarcerated all testified that the girlfriend of the grandmother testified that they had jail personnel had some inkling that this the symptoms that they were seeing and that he was experiencing and that he complained about were something other than the fatal kind of horrible officer problem and i think the answer to that is twofold your honor number one i think it's clear that nobody ever knew that he knew objective lay that he were subjectively knew specifically that he was suffering from or ought to have known i mean some kind of it has to be deliberate yes yes ma'am and and that goes to your original question of did they did they respond every time that he he had a complaint and i would argue that they did not certainly each time there is a complaint he was making that complaint to a person but when the branch or testified and she's the one that the district court said was a very close case she testified that she dropped off his dropped off his breakfast tray he couldn't get up off the floor she made no further inquiry into that even though she was a person who packed his medications and knew he was sick and little bit earlier a little bit earlier just like here they thought it was just gas and diarrhea but they never knew the critical fact that he had i also a perforated also a prior year i mean it sounds very parallel how do you the saying was that it is very similar case your honor and i think there are some distinguishing factors as well the first is from the from the knowledge of the innate in the router case and make certainly had been had prior treatment where there's no evidence that mr hacker even that sort of thing was having alcohol withdrawal and he was having alcohol withdrawal which very distinct and this is important very distinct from drug withdrawal alcohol withdrawal is in itself a fatal condition that must be treated drug as i read the court's decision in that case much of that is made because the nurse had arranged for and had actually in the in the inmate had actually had a psychiatric or psychological about evaluation for the psychiatric problems so there is treatment being made one he was being treated for a deadly condition alcohol withdrawal that apparently he did have number two he actually received a psychiatric evaluation so there is a very very particular things that were done in very particular providers that he that he saw in this case you had deputy jailers who were treating him with nothing more than one or two phone calls to a physician although medication was prescribed for what they  fall to treat the symptoms of with i mean well bothers me a little bit as you know you might have a malpractise claim there may be negligence on what the staff did or didn't do but that's not enough for deliberate indifference is a constitutional violation symptom of something that could have been causing him discovered without it and this is another very important point without ever making an inquiry in any sort of depth or detail into whether that discomfort was a result of withdrawal which is not a dangerous condition very much could very different from making an inquiry or looking to see if there is a deadly condition asking the questions to see if he's really going through withdrawal or taking history just told us a gentleman doesn't have the education how would he be able to offer i'm going to let you answer her moment what really do you foresee in that would have been the better answer and they're to i think the history i'm referring to is not do you have officers history is tell me about your drug withdrawal because our expert witness who's in the record said that the timing of these symptoms do not make sense it and do not correlate to drug withdrawal here actually withdrawing he would have begun the symptoms much sooner in his stay that was never inquired into thank you proof of deliberate indifference on my client's part that they did not ignore nor did they deliberately not do anything to help mr hacker counsel just argue that they that they have a their duty as jailers included inquiring into in more depth about the symptomology and i think i was just told it was about the timing they ought to have known they ought to have known that with troll shows you show withdrawal signs earlier i think that council explain who for the expert void qualified immunity in this case who are which is what the what the district court found it's the players burden to show a case that substantially similar to show a clearly established right i will agree that there's a clue clearly established right o the fourteenth moot for pretrial detainees to have met medical treatment same as anybody else in the community but they did this mean was being treated for would draw all symptoms drug withdrawal symptoms  don't hold that against me just so there's this sense over there's absolutely no proof your honor that that there was any kind of deliberate indifference in about three thirty in the morning the morning they died what captain tricker did was he when he says that he talked to him through the door that's not accurate he talked to he said he was at the door he was only about six feet away from him and he gave him his pills unless he threw his pills to him which there's no proof of that he saw this gentleman asked him what was what was going what was wrong and he says really going through it he was pill sick or dope sick or something of that nature he knew he was ulcer he makes a point about another another deputy by the name of whitney bratcher where he claims that ms brash testified that mr hacker when she came to serve his breakfast tray at five thirty that morning couldn't get up that's not true what she testified to was he didn't get up which is not an unusual event in a county jail for people not to get up not to not to come come get their breakfast trays he was sleeping there was   he asked his grandmother he told his grandmother he wanted to go to the hospital did he tell any i don't remember whether he told any personnel at the jail no proof of that miss miss miss hacker or his grandmother said she had called somebody she couldn't remember who and said he needs medical attention or something to that effect in the hoopla was that he's being monitored which he was of medical care or inaction of medical care and there's certainly no proof that there is was in the can of the sea enter intent on my client's to inflict any kind of punishment now granted he probably doesn't have to show that it was punishment for punishment sake but it has to be more than negligence and i'm not going to agree that he has it he has a negligence claim to get a don't think he has a negative  with a special diet that everyone knew and they didn't attend to it the fill sources room county case everyone knew this lady was a diabetic when she had a she had a stroke basically or passed out not in distress just leave her there don't don't take her to the to the hospital that went on for two weeks that kind of treatment that treatment was found to be deliberate and indifference that's not present here that kind of stuff that that kind of actions are not present here with regard to the custody of staff at all in this case the they've also made claims of failure to train improper policies and all that there's no proof of that there's no proof that our training policies are inadequate that they're not there adequate comply with kentucky regulations that are required for training of jail guards which includes a medical component i know my time is up for the reasons stated here today maybe in or fully in apologize for having a case name wrong in this and the reason stated in our briefs we believe the judge call whirls well reason should be affirmed in all respects thank you for your time circuit precedent in granting a summary judgment on the constitutional claims put forward by the plaintiff against the medical care providers the appellant failed to produce any evidence to support the contention that any of the a c h folks knew of facts to allow for an inference to be drawn that a substantial risk of serious harm existed it's important interviewing this decision of the district court to note that an incorrect diagnosis or failure to make the correct diagnosis does not equal deliberate indifference what may seem in hindsight to be negligent or even careless does not a constitutional claim make a crucial fact it's already been pointed out in this case in every interaction that mr hacker had with want to be a c h employees he indicated that he felt like in some ways in some words he said i'm going through withdrawal dopesick i'm really going through withdrawal and trying to get through it by myself every time he interacted with an a c h employee he gave that medical history his symptoms fit with that medical history there's no there was no need for them to investigate further when the patient is telling you here's what i think's wrong with me and when his symptoms match up with what he thinks is wrong with him all of us i mean you have to concede it was a mistake gnosis no question it first tell us after the fact it was in this diagnosis now whether that certainly by the end he was having symptoms related to the also the first interaction on may the second could have been both then also it could have been both things going on unfortunately for him both things going on at the same time or now as it is assumed the medical field has to know that well there are two possibilities with these kind of symptoms one could be withdraw from drugs another could be a perforated ulcer problem and i magine that there's more than two in there maybe more than the right and that's why when you're told by the patient it's not that he thought he was going with through a draw for him to think he was going through withdrawal he had to know that he had used drugs that he could be withdrawing from when he was when he went to that when he got to the jail and did the intake forms he denied having used drugs right we've later in conflated information and then once the symptoms kick in he's like well ok i mean he didn't say it that way but he's the symptoms tell that is there was there a duty half of your medical clients to think well you know we need to have an obligation to check beyond just what he says the problem is even if the symptoms are consistent with work are all i they could be you know they're all searched could be a third or fourth problem that has the same symptoms i think a duty to investigate further would develop with this condition persisted beyond the limited timeframe that it c persist in this case our experts will state that he was going through these withdrawal symptoms that as they were perceived were certainly within the timeframe when withdrawal symptoms could still be in existence now if we get to the tuesday after he died or the wins day and he's still having symptoms and the medication they prescribe for withdrawal is not effective then you've got to investigate further and so i don't think a duty to investigate further arose during the course in time that they were providing treatment all as a car span of five days right from his arrest to his death correct we've got the first well not from there the first medical request is on friday then the next ones are on sunday and he dies on monday but he had been in jail aboard  before the first medical request came in we talked it was discussed earlier the the raster case which as it was discussed is very similar interesting distinction in the roster case they were treating him with alcohol withdrawal or for alcohol withdrawal they were doing that based on suspicion the patient didn't say or the inmate didn't say i'm having alcohol withdrawal one of the jail staff said well his reputation is that he drinks a lot so they were treating him based on a rumor or in this case we were treating the patient based on what he had told us so again also there is also present here nobody in the roster case knew of the of that inmates history with also diagnosis here also nobody had mentioned to any of the jail staff the drug use right but everybody still thinks he was with having that drawl to the docs yes i mean in retrospect of lee i mean yes they think that it's certainly possible that he was going through it all and what i was going to state was in the cases where summary judgment was not up held all of those cases had a situation where some portion of the jail staff knew of a medical condition either in the shed or case they didn't they knew that the inma when he came to the jail had m r s a he showed them the signs of his staph infection just like in the souers case they knew that the patient had diabetes they knew he had not taken insulin in several days they knew it ran out of insulin and so in all of those cases there's knowledge that i not acted upon that's not present in this case nobody told them that there was an ulcer problem  with respect to each of the p c h individuals troutman was the nurse practitioner she only had one interaction with mr hacker that was when she received a call the initial complaint he thinks he's got a history of drug use and he's got these symptoms  match up with oprah drawl she made an appropriate a reasonable decision to provide medication for his opiate withdrawal then doctor it was called on sunday he's told the patient thinks he's dope sick here's his symptoms he made a reasonable decision to treat the symptoms that seemed like opiate withdrawal and then nurse johnson as an lpn is simply reporting symptoms that she see she can't abide licensure she can't do a physical exam or make a diagnosis she just communicates that information which she did little with the idea that he by by his own diagnosis admits to apparently sufficient drug use in his mind to trigger withdrawal in his mind quite possibly and that's why it's important that's quite i mean he would in no matter right if you are if you're the guy who's taking heroin you kind of know he certainly would have known that whether was when was your last dose how much have you been taking how long have you been taking it those are all factors that go in withdrawal that no one ever inquired into in this case and on the differential diagnosis i think judge gilman brought up the idea that you that directly he said that he said that the medical records are the medical history overall was not was not consistent with drug withdrawal and i took that my understanding of that i'm obviously not a doctor and my understanding of that testimony that that was a was a result of the timing of the onset of the symptoms or at least of the complaints to the to the jail staff in terms of policies we didn't get to talk very much about earlier about the ac age employees but dr our show me was the medical doctor he was the one who held the keys here who knew the questions to ask or should have known the questions asked the prison medical jail medical set it setting and who could have instructed the jailers not qualified to to assess patients but she was doing that because in the in the discovery that we got the phone calls that she could call providers over the six days that mr hacker was in the jail she only made the anyone from the jail and i don't like her many of these were late at night only made one thousand calls to the medical writers that's less than three per day for a job population of over three hundred people she was seeing a lot more patients in that day without any other medical supervision but one other point i did i would ask the court to consider looking at what some other circuits have done this is in our brief but this goes to judge cook's original question i think of a lot of them and lot of small things that were missed perhaps by jailers throughout and at least and ninth tenth and eleventh circuits and probably others have said that there can be an underlying there can be a constitutional violation by the provider by a c h or by the jail even without a definable constitutional violation by by a particular after if the cumulative effect of many violations and it's up to a deprivation of the constitutional rights and i understand that that's not currently the law in the six but other circuits have accepted that rule i think this case demonstrates why that is a good rule good rule because you have a situation where a number of actors are making a number of small decisions that are in my view in different decision all right thank you mr krueger the court has your matter we will consider it carefully and issue an opinion in due course thank you