court sent a request out to the archives to be prepared to discuss the issue of whether or not the ny circuit has jurisdiction to hear this of hill in light of that i believe that is place where we should appropriately begin or discussion reconsider is too important to be denied review into an pendant independent of the cause itself to require the appellate consideration to be deferred until the whole case is a determination finding no qualified immunity within the time frame to appeal that you didn't if you are right that is correct doesn't doesn't adopt a new approach with respect to jurisdiction to completely wipe out the roof the time frame for under which counsel are expected to appeal a offered immunity determination if it's simply as easy as filing a year later in motion to ran from the decision on reconsideration not from the original date of the order there in the court the th circuit specifically stated the precise statement of the effect of a motion reconsider can be found in the united states versus the bar which held that when a timely motion for reconsideration is filed out the time to a pill begins anew there but this was not a time this was in a timely motion to reconsider well which is the q just which is that you can't just put a whole bunch of different rules and say what's what's the what is the rule under which your motion we brought it under clear air under rule fifty n additionally your honor i think the united states supreme court has made this issue player as well in the united states versus the bar of the united states supreme court went through some detail and reviewed its prior decisions are not recognized in delaying the thirty day period but there is no certain way of deciding in a band which motions for reconsideration have the rx that degree of merit and which do not give them this it is far better than all such motions be submitted under well i don't believe it was clearly state stated as the law before i think the court is correct still it makes reference to that why it makes reference to that but in spite of those decisions the supreme court had to medical attention cases to be the same as the case that we have before you know those cases they were dealing with medical officers in our case we're not dealing with medical officers they're dealing with individuals who are denied medical access for weeks or months on transfer and our case your honor we have an individual that was in our jail for less than forty eight hours and who was seen within hours mere hours of the request d medical attention or frankly i was there faster than he would have been seen by medical professionals just because of all those are all factual disputes the question i thought that what you were talking about is that you need to be  you have to have something more than a general proposition of law s to be settled law it's been so law for a long time that you can't just regard medical leave and then it becomes a fashionable sputum whether or not you did or  of writing out there you say in a qualified immunity concepts in context there's never disputed facts or maybe just disputed facts your honor but for purposes of determining whether or not qualified immunity applies the court is required to assume the facts that are in the of plaintiff and then make the determination under those facts that are most favorable to the plaintiff whether or not these individuals would have qualified would been entitled to qualified immunity that becomes a question of law language in order since the city of tacoma which came out this year from the answer which talked about it in the in explaining it talks about a reasonable jury that the the issue of qualified contrary to what you just said and with all due respect i disagree if you look at the cases he cited for attempting to just to claim with particularity that the cases that he cited would put an cents and i think the court noted that there are strict time limitations there if they if they brought this under a rule fifty nine dollars which it appears to well  until july two thousand nine hundred so that that time when it wasn't met and then if we look a rule sixty the timing under that indicates that it must be made within a reasonable time and i think that's after the fact is not a reasonable time to challenge a qualified immunity decision so that therefore it this motion to reconsider well i want to i was going to drill down a little further because i think that really the fundamental error with this appeal is the the standard of review  and the questions if you will that this that the appellant's want the court to address and in the miller decision it references circumstances what are the circumstances what are the questions and that court noted that you can use this really and and you know we touched on our brief that's to the limited   motion to reconsider is abuse of discretion and and so just i didn't believe that have to do with our jurisdiction do you believe we have jurisdiction over this motion or do we not you you do not because you did your been asked the wrong questions and i was just reading that decision out of miller in order to nine reconsideration of the denial of qualified immunity does not however satisfy the elements of the collateral order doctrine and that's what what counsel was referring to which is you know you have to in effect in a qualified immunity challenge you have to collateralize you have to separate the issues from  the underlying case to specific questions of law having to do with the qualified immunity session and so d the pal court just said that the motion to reconsider itself does not meet that criteria you have to be able to to come under though to the right questions and if you look at the appellant's brief throughout their asking this court now there there there really wanting this court to get into the factual findings of this judge and to delve into discovery responses and affidavits and depositions and that's really something that belongs in the pro of the trial court this is the appellate court is not suited really to take a look at those questions and so it's a basic pressure that you have to meet at a you know it's more on a subject matter lines but it's a it's a it's a jersey fictional threshold if you know if you've ever going back to be on the jurisdictional question should it matter what the grounds are for their request to reconsider it or in other words if there are let's assume there has been a change in the law of but after that period of time has run for making a motion to reconsider under rule fifty nine dollars if the law does change and you make a motion to reconsider on that grounds shinier then be an opportunity to have that out so object to appeal well again right all we can do is look at what the questions that i mean hypothetically yes but that's not the case here because what they're what they're asking this court to do is to review the court's factual findings in this case and so i think if we just don't even get to that  trip you're on a point says i don't happen to agree but says that the law has changed and that is the basis of their or one of the bases of their motion to reconsider you know even if you disagree with that shouldn't that then be a proper subject of a motion to reconsider and then be subject to appeal and in the miller case there's no real discussion about the different grounds or should there be a different rule if it's just nothing's if the law hasn't really changed then that all doesn't matter in this case but i think that i'll go back to the points that were made in this pal decision is you have to look at the circumstances and what are the questions that they're asking you to review and and so even more fundamentally if it's there in this case isn't the questioner asked mr review a legal question which we always have  want you to know i don't i didn't see that in their brief i think i mean obviously there are legal questions in whatever appeal that you that you provide but  under the facts of this case that there is a clearly established law and isn't that a legal question yeah no i mean that's a legal question right you know i'm saying that but i think it's  standard the legal question that they're asking banters not the one that you that you should be addressing on the on the appeal and and i referenced those in the decision it turns on the issue of law that basically  you have to construe not only you know you have to assume all the facts are decided that in the in the plaintiff's favor and that even if all of the facts even if  the jury were to find all of the facts to be true that the plaintiff was alleging then would there still be qualified immunity and that's where i think that's the that's the fundamental flaw in  even both the legal and the factual approaches that they're wanting this court to review facts they're wanting this court to to in effect use a summary judgment standard rather than the standard that has been set for i don't know if we need to to get into all get into a little bit on the on the substantive issues but i also didn't see anywhere in the health where even notwithstanding these so called changes in in the law that that had any of pet impact on whether the judge should have changed his position on that and he  very concise analysis of that he thoroughly reviewed the cases that were cited which were largely th amendment cases and he came down to that that standard that still applies today that when there is evidence of deliberate indifference to a serious medical need a deficit that's a sufficiently particular is right  is over the facts of this case is that they get those the controlling lawyer if passed they they have to do with the nine or delay in prisoners access to medical care and and that's just for  play what we're alleging here is that mr hanssen made repeated requests to have his eye condition checked and that they refute that they denied it over and over and over again but it doesn't have to be a a th amendment where were we have lots of variations d over time as to what is considered excessive force that the this this  involved and and is maybe even nebulous at times it's go it but it boils down to really a policy issue as to in those instances where officers have to make quick decisions what do they know that they can or can't do and so that's why that's why i think that this particular invasion has really developed in the th amendment because that is something that has evolved over time  and that's not been the case for th amendment cases because we have this fairly well established and or deliberate indifference to a medical need and and it can be applied more broadly it's a lot more clear to a in this case a prisoner gela fishel that is if a an inmate comes to them and there's someone that is in their custody comes to them and has a medical  problem and they don't address it then they know that they have to do something about it so i think we have to be careful not to mash th amendment the need to mimic because i think there are two clearly different animals so i think you're in closing this is this appeal should be denied and we should finally be able to get back to do with let again in this case and this is this case been going on for four years and it got basis that it was not time filed and the appellate and the respondents did not object to the most reconsideration they so that they thought it was time and so in effect if if that was an issue it would have been wa at the district court level when there was no objection to the motion for reconsideration on the basis of that in some fashion be untimely then where you end up is you have a just a decision on that most reconsideration and clearly the artist or the united states supreme court has indicated under the bara that when you have a new decision on a motion for summary judgment under most reconsideration that  the facts stablished that mr hanson did ask both of these defendants eluded them to the fact that he had a prescription for eyedrops and  told them that and that turns out to be the facts that are established and they nor did it for whatever period of time we're talking about now willfully ignored it would constitute a  would if that were the facts established in this case that is not the fact that we have to assume the facts as the plaintiff has has alleged them and that's exactly what this ransom said was the case no it isn't because what he has said is that he advised them that he had a prescription they checked to see if he had a prescription in fact he did not have a prescription and within hours of him notifying them that he needed medical attention we're not trying that days not talking about weeks within hours they arrange for him to be seen by a medical professional and that medical professional is him the st prescription that in fact you ever have for he'll age is he did have a prescription he says  denying them for qualified immunity rather is no evidence in the record that they deny him the prescription there's the only evidence in the record is as soon as he claimed to have a prescription that is searched with the state proposed for it to determine if you have such a prescription or was knows prescription so they then arrange for him to be seen by their medical doctor who in fact them prescribe such a prescription and he then therefore was given the prescription literally within hour not days not weeks but within hours of him go to find him that he had a need for such a prescription i think you counsel are questioning to kill the time but i think counsel for both sides for your argument in the matter submit it thank you