before we begin arguments in this case that miss forster was at one time one of my law clerks many many years ago and i hope counsel doesn't have any objection to her handling this matter in a pro bono fashion as she has played thank you i just like to say that opposing counsel has been extremely professional helpful especially at the beginning when i was new to the case a good afternoon may it please the court i'm page forster and i represent the appellant randolph carson i'd like to reserve three minutes for rebuttal that request will be appeal presents two questions whether the district court abused its discretion in denying my client's motion for pro bono counsel and whether it later erred when it entered summary judgment for the defendant's resolution of the first question in my client if you're against mr carson because that judgment was a direct result of my client's inability to effectively represent himself he was not able to create a factual record or to present legal arguments and inspire take your case the denial of pro bono counsel was not only an abuse of discretion the case law shows but it also caught mr carson in what this court has called a paradox the magistrate judge dony oh denied the motion for pro bono counsel stating that mr carson didn't need an expert to properly present the case for the claims for him and later the district court judge granted summary judgment partly because it said that mr carson had not come forward with the facts tending to show that the medical treatment was necessary but of course to come forward with facts showing that the treatment was medically necessary mr carson would judgment disposes of the fact disposal the question of whether or not the court abuses discretion in not appointing a counsel what's your answer to that question i think that that argument is a matter of conflating sin standards because the threshold factor which is what my opposing counsel was referring to is whether the the claim is arguable merit in fact in law and i think that's what's most miss forster i am very much interested on and that particular issue that threshold question of whether there are the issues for think the standard is as judge becker originally articulated it merely a threshold it's it's a matter of deciding whether the claim is frivolous and whether it's facially colorable given the facts that are alleged wheel chair for process and excessive force do you say that there is a serious question and each of those your honor i do one thing i'd like to just point out is that judge and ask his order that appointed counsel in this case directed the parties to address the housing fee in particular so that was one that i didn't feel that i could subject to the normal way of what should go into a brief and what shouldn't i thought that had to be n according to the court's order i think the other claims yes there is a question the claims that are the most compelling to my mind are the lack of access to the toilet and also the denial of medical care in particular the denial of prescription medications let me ask you a question on another one of them quickly one of the listed claims you just mentioned was the equal protection claim and what i didn't understand about that is i didn't see a specific ruling on it you know obviously there was sort of a blanket ruling summary judgment as to all but there wasn't a specific ruling and reasoning that i discerned on equal protection does that violate twelve ninety one should there be do we really have a final order yes or no it does not violate total ninety one there's no finality problem the case is final an appealable the judge in the season is final an appeal will but this court has in the past instructed district courts that they should look at pro se pleadings and extract all the claims from them and there are cases all that i cited in the brief where this court has directed the district court to address a claim that it didn't identify and address so it's a matter of the district court overlooking and not pay sufficient attention but it's not a matter of finality or so one one point one potential resolution of this matter would be reversed in summary judgment ordering the district court to represent my client what's wrong with us looking at this case backwards so to speak and saying that looking at the summary judgment question and if we feel that there was not complexity here and the plaintiff had not pled properly pled his case and find that the court was right on summary judgment doesn't  the need to have to consider the abuse of this question question on the failure to appoint counsel no it doesn't your honor it does not and the reason is that the product sell the case laying of course the factors in the third circuit for its nial a pro there is i think it was taper off and also might gum reverse pinchback where the court specifically said the plaintiff's ability to to a deuce the factual record he needed to reduce to survive summary judgment was compromised by the abuse of discretion not appointing promote a counsel and counsel question really is one that should be addressed first and i think to leap forward to summary judgment would be to miss so your position would be that we have to address it first yes in this case yes in this case and if we disagree with you of course if we disagree with you on a table one question but agreed with you on the summary judgment argument in one part or all there's nothing to preclude us confinement claim in particular and the their record is somewhat scant as to the actual facts and what took place here we know he was in a medical unit  on one occasion there was another inmate placed in that cell which precluded him from getting to the toilet you know even had there been enough facts pled in that claim to enable the plaintiff to meet his burden yes there have been and i it comes back to this basic motion for summary judgment standard there's a genuine issue of fact here because you have the plaintiff pleading with his approximate measurements as best he can make that his wheelchair can't move unless he was able to an able to reach the toilet and then you have the defendant saying simply that's not true and the defendant's contradiction in their briefs by the way w insufficient they didn't do so any facts that he could have reached the toilet they merely declared without records record citations that he could and so you just have it's the classic two party saying different things and frankly my client's facts that he had used are stronger than any facts that were used by the other side but the issue remains to be put before a trial or fact whether my client can reach the toilet and for how long and  statement because the allegation was that the toilet was completely inaccessible and the measurements that my put my client provided boy out that fact there was literally enough space for the wheelchair to sit but not for it to roll anywhere and so that was  denial and that was one instance well that was every time that he was double self and he in his pretrial memorandum he said that evidence he wanted to present of course he wasn't able to participate in discovery any meaningful  so he couldn't actually get these records on his own he couldn't get the housing logs but he said that they would show how many nights of cells ok we don't know that and we don't know whether or compl made by him to prevent that from happening again that's correct your honor we don't the record is incomplete in many places and you've put your finger on a couple of them i don't  breaking for myself if we if the only thing that he has asserted was this deprivation of the toilet i don't see one instance i i don't see a creates and i said it already taken place before that point so i couldn't he couldn't have become so worked up for the first time because he had to presumably see the cot in the cell and experience that and he does remember if you look at his  pretrial memorandum he does talk about occasions when he was confined to his bed because he was double sell it and it's by no means a single instance let me ask you this question about the pretrial detainees the convicted argument just seems difficult and on unworkable that's interesting that you put it that way i actually thought that it was rather workable i think that there hubbard still would hope that you would the harvard standard is one that's pretty so pretty simple it's equivalent to a rational basis test i think first of all to back up my client has it used to claim either way and so the facts are sufficient for him to survive summary judgment even if this court continues to fall back on the eighth amendment is still standard but the the hubbard standard is really the one that controls and so many cases from this court over the years confirm that the hubbard standard is the one that controls a denial of medical care claim by a pretrial detain me and so what i was arguing is that this court should actually that standard and actually by giving it some legs and the legs that it has are the ones  in the hubbard case in two thousand and five so the question would be was the medical care denied for a rational purpose i think that's an easily enough answer question that we could answer questions about prisoners being transported  care you know being able to show up for trial being recuperating from surgery when trial comes up that this kind of questions and then whether the denial serves that rational purpose and so that's the standard that i think applies in this case so this is a case in a medical wing of a penal institution as act right that's where that's where he was has yes your honor ok and selling and things like i'm not sure that we can make a rule that would have in this case that would affect a situation that was not a medical situation i think that the resolution of this case could certainly be limited narrowly to its facts i'm not asking for a broad ruling i think the bottom line is that no matter where  prisoner is housed whether he has to be housed in a special medical unit or not the constitution still reaches him there in whatever portion of the prison he's in and a mandates that he have access to the minimal civilized measure in place necessities which is of course the  in this case her generosity your firm's generosity helps elevate our profession and we appreciate that your honor i'm going i should say as do it i was going to address four elements of this case the conditions of confinement the excessive force the housing fee and the denial pro bono counsel if i could start with conditions of confinement which is essentially the access to the toilet issue  house in a medical unit there are six cells and medical right two cells and medical left elana county justice the syllabi has no control over what inmates are classified medical any particular day they may be the system worked perfectly he had a complaint he went to administration he said i don't want to second inmate hender is my access to the toilet they said you're right we're going to put your list everything else has to be filled up before another goes in your cell it has to be an emergency circumstance for that to happen that's just the way it's supposed to work in our situation under our grievance policy and it was settled at that informal stage he agreed to the resolution he did not appeal it he did not greet it then on june fourth two thousand and seven and inmate is brought to his cell as a roommate he throws a fussy bangs on the window because of the ruckus and makes can hear the t v and that's when the excessive force claim comes in but i just want to point out that june fourth was two months before he filed his complaint and if you look at the officers records the reports it clearly indicates that all the other units were full he had no choice but to put the new inmate in with mr carson mr carson wasn't even sanction for that he was locked down for a five minute period there was another incident a month and a half later june twenty fifth july twenty fourth two thousand and seven where once again emergency situation came up no other cells available they had to put in they made with mr carson he did the same thing he threw a fit he refused to obey commands and he was actually sanctioned with a verbal reprimand after hearing that once again he did not oppose pursuant to heck versus humphrey he can even argue those instances at this point runners we have to look at was there a rational basis was there a legitimate basis for the government to institute this position overcrowding in the jail is something beyond the ability of the g a o to control they have to address it in the best possible manner they can they did in this case and they put mr carson at the end of the line they gave him every possible courtesy before they had to put another inmate in this cell certainly there was a legitimate governmental interest in this case and it was applied in the least intrusive way possible as far as the excessive force claim your honour's this is not a case where a man was beaten or kicked or punched or sprayed with mace or club even if you believe every syllable at mr carson's mouth the greatest violation he can allege is sergeant neilson pushed my wheelchair into my cell to forcefully causing my legs to strike the bomb and i would just i would rule the day when it was the law that that was the floor now in every case would go to trial there has to be a position where the case just doesn't was stand summary judgment scrutiny there was a situation where mr carson was being disruptive causing problems it had to be addressed this is a penal institution the rules have to be followed it's not optional sergeant nelson did what he had to do lock down the in me the inmate refused to be locked down he held the wheels that was wheelchair officer nielsen polled him into the cell turn him around according the offers nelson placed him in the cell according to course and pushed him in violently certainly according to whitney the need for force was necessary we had a prisoner who was being disruptive the relationship between the force and the incident is certainly related this wasn't a clubbing incident this is he wasn't struck his wheelchair wasn't tipped over it was moved into the cell in response to his carson's actions the injuries even once again believing every word to mr carson says his injuries are bruise legs the extent of threat to the safety and security of the facility is obvious these things can spread like wildfire inmates are upset they can listen or t v security and this one has to be returned to a facility when an incident happens and efforts to temper the situation it's our position that the solution was remedied as humanely as possible your honour's and there was no tempering needed this is not a situation where you can sit down and have a title born of vs camden county where the housing fee was applied to pretoria pretrial detainees and it was also found to be constitutional or housing phenyl in a county is fifty dollars per month which doesn't cover the cost of incarcerating an inmate for one day it certainly is not onerous it certainly is not a punishment the can that is born in case they charge five dollars a day one hundred fifty dollars a month and that was ruled permissible getting to the pro bono when you assign the paper on factors and you afford the magistrate judge deference and her decision pro bono coun cannot be allowed i just lauded miss forster earlier unfortunately she is in short supply we don't have enough ms forster's and we don't have enough firms like miss forster's in order to supply this pro bono counsel for everyone there is no right to counsel in a civil case mr carson presented a twenty one page complaint legibly printed coherent cogent elicited all the facts and his constitutional deprivation he said he case law throughout his case he cited the constitutional statutes or cites said he needed an expert i will allow his bearers to speak as the medical issues as far as the excessive force issue and the conditions of confinement issue i would present your honour's these are strictly factual what about what about his complaint about his inability to get discover it was such as the number of times that someone else was put in itself he got every piece of discovery he requested your honor and that's reflected in his writings he may have said something in his pretrial about what he  requested anything beyond what he got he received his entire file as class is it patient files criminal file his medical file and that's what he requested that's what he was provided i confirmed this during his deposition that he had all these materials a argument was you said that counsel counsel is not available that's nowhere in the tehran factors is that well that's one of the policy considers considerations of paper unconsidered they said there's not counsel for everyone and we have to be judicious in and want in and here the guideposts you should look at i'm sorry and here are the guide posts that you should look at correct your honor and but there are limitations we can't be in a perfect world maybe everyone would position the threshold question of tehran is there are you more merriment fact and law to the contentions at the point in time of summary judgment there was know ok all right when he filed his complaint it's a different standard because nothing has been fleshed out if you mouth the proper words excessive force conditions of confinement meritorious cases once we get to the summary judgment stage and nothing has been brought forward to support those claims taber on threshold analysis can be applied again at which time it can be good afternoon your honor i'm prepared to address the issues of the denial of medical care claim and a touch of equal protection claim by way of background we're dealing with the plaintiffs that has been house in the medical facility since the beginning of an incarceration which was in december of two thousand and six with regard to medical issues the plaintiff complains that he was in one medication and foot rests on his wheelchair the record establishes that there is really a non issue with regard to the heart medication in the appendix of page three seventy two you'll see the pla testimony that his heart medication is not at issue what remains an issue in the briefs and which is addressed by plaintiff's counsel is the issue of the as a medication i cited to the testimony by the plaintiff where he indicates he did not receive his asthma medication immediately upon his interests of prison when i questioned him about when he last took the medication i cite or is testimony where he gives me a date in two thousand plaintiff's counsel cites to that testimony in her reply brief and argues that it's questionable he's referring to and indicates that it could have been in two thousand and four regardless if it was in two thousand or two thousand and four we're looking at a period of two to four years where he wasn't even taking this as a medication it's a non issue as to whether he had access to mental care because he was in the medical unit his entire time he had access to a nurse every day who would come around and bring him medication so on its face i don't believe that this case would meet either the is the standard under the eighth amendment or the fourteenth amendment with regard to the issue of whether the eighth amendment or the fourteenth amendment applies i don't believe there's any case law supporting the contention that the fourteenth amendment should apply to the instance of denial of medical care there is case all that cited in a star cers brief the talks about the hubbard standard but the hubbard's case is not about denial of medical care if you look at the boring case the truth cited you'll see if this court has applied the still standard still for situations of pretrial detainees if we look at it under either standard there's certainly not deliberate indifference to a serious medical condition and that's what was argued to the judge a con summary judgment plain as counsel contends that they procreate sander's should have been the fourteenth amendment if you rely on the same facts in argument that are presented in the motion for summary judgment this doesn't meet the fourteenth them in standard either there's no indication that anything was done as a punishment to the plaintiff these aren't conditions that even invoke a serious health condition under any standard so i agree that it is not clear in this circuit whether you want to adopt hubbard and apply it in the instance of a denial of medical care but the case love it does exist out of the circuit does still apply the is still standard and if you want to change a standard i still don't think it changes the facts of this case or would require you to overturn the court's decision on summary judgment with regard to the equal protection claim judge greenway touched upon the fact that the lower court judge did not specifically reference that claim however if you look at the record in this case there looking at only the facts that were planted by the pellets here that stage what is your view as to whether on the basis of those facts there were are your ball merit in fact and the law of the contentions the point is that that's the threshold before we go through table once a laundry list i believe that at that stage the plaintiff met the threshold with his complaint in what respect with regard to my clients he certainly claimed that he was denied medical care and at that stage the appropriate standard of view which would have been  motion is this is not a case that i would have considered filing a motion to dismiss and because at that initial stage he had pled enough to invoke his rights with regard to denial of medical care and as i said enough ok that's enough for you that you're my question present mailbox so the conference took place before the filing of the complaint on the district court docket but after he had put it in the mailbox and so his contention which explained the deposition and i believe i stated in the great bring was that  the conference is actually in response to his complaint filed this is not a situation where an inmate had his concerns addressed and then went ahead and filed a lawsuit although i should note that even if he had done that he has claims the door and then any threat has been dealt with and so once put in medicine a cell to launch out of his chair into the pad taking advantage of the state it's beyond the force that's needed i'm not surprised this is a violation that was alleged and there is an issue of fact about that taking on this case pro bono for the work and will take the matter under advice i would like to echo that i thought when i practiced law i was in the building right next to read smith and then when i became common pleas court judge i i was your original calendar control judge and when i thought of reed smith i'm thinking