deliberate indifference case the defendants contain and that the lower court erred in failing to grant summary judgment based on qualified immunity and the lower court basically didn't look at the facts they summarized to the magistrate judge summarized some facts that he believed were relevant to the determination of qualified immunity or more particularly come to come whether a constitutional violation could have occurred but those were all things that were not in the record so the judge was really asking for information that was just an absent from the record and when the and when judge sharp that's the essence of procedural thing that i've puzzled me a little bit you know i'm aware of appeals and all that well i've not seen in fifteen years as a judge is the district court handling them at different times so from understand this case correctly there's nurses have also been win the plaintiffs file an appeal and they're separated from this case i just don't understand how that happened well potentially i mean the problem is is that we're injured deadlines for a trial and in this situation when we felt like we had a right to call the qualified immunity argument we felt we needed to take that argument is on trial date i don't remember the trial date your honor i don't know that we i don't know that we actually had one or not actually now that i'm talking about but i think we did have a trial date and so there was a concern because it is you know the middle district in tennessee is extremely strapped with regard to the judges so we didn't know when we might get another decision in fact there was just another i haven't seen it before it's really it's not your fault i just can't first strange i don't know nurses or the nurse did move for summary judgment and that was still outstanding and pending the court ask for further information from from those individuals they've supplied that in fact there's been a new order just this week or late last week that asked for more information on that so the court is i think is is about to start to think about ruling on graduation for some time to be withdrawing you are going to say let's see what the six circuit does potentially which is why i don't get this i mean the issues are different i mean with regard to my clients the actual the fact that the magistrate judge pointed to all of these facts that actually amounted to more negligence climb and said that because there wasn't this information in the record we can't decide that information is not in the record it's not the record i mean it's not part of the record in it's a deficiency that the plaintiff has created that would entitle my clients to summary judgment so in this case  you look at the facts that are in the record we believe that my client is entitled to qualified immunity when you look at the objective or the subjective components of deliberate indifference particularly when you look at the subjective component deliberate indifferen scuse me your honor with regard to sheriff melton there's only two particular instances that can potentially even create liability for am there is a comfort there's an alleged conversation between the the plaintiff's family member and the sheriff the complaint only says that they made an attempt to contact the sheriff and he said that he could not speak to them about inmates health concerns is that is that true you're not allowed to talk to family members well with regard to concerns i don't know that that's true or not with regard to whether if there's any hipaa violation you know he's made it a practice apparently to not make those have not have those conversations with family members but allow the why couldn't that be deliberate indifference i mean you know hypothetically someone needs at that point for deliberate indifference the sheriff would have to have sufficient information to realize that there's an inmate who's at a serious risk of harm in this case there was no risk missed but you would have i think we're all in the same page if you deny someone the medication and they have epilepsy that's that's a problem in this we would all agree with that that has to be true in this case your honor mr newberry was not denied his epilepsy medication because he didn't have it for thirty days he well he does  record if you look at the medical records january twenty sixth three days after he came into the facility he was being given his anti seizure medication but he does make that allegation very generally in the complaint that he was denied seizure medication for thirty days there's not any but there's no evidence that there would have been any harm to him within those thirty days he was provided the medication i think we're talking about two very distinct issues you know whether or not they deny the medication could potentially be that you know that goes to the  objective component of deliberate indifference and whether he can we can establish that he had a serious medical condition that required attention he got that attention he got that medication with regard to the seizures themselves we know going into this that mr newberry says he has seizures he's had seizures since he was a child he'll continue to have seizures and he's had seizures since he left our facility so we know he's going to have seizures the seizures themselves are not an injury or the harm the question would be you know for each particular seizure that he had and why don't we talk about the phillips thing and that one seizure were buses i so you know phelps was involved in that we can't deny that we were at an eye injury which is not to minimize is no way you could say that's to minimize and what's your reaction to the you know the method of bringing him on the mat leaving him sufficiently alone that he hurts himself so why isn't that deliberate indifference that would be deliberate indifference your honor because he wasn't housed in a condition that posed an excessive risk of harm to him he's not entitled as an inmate to any extra security or protections that he would have in the normal world he's testified that he had seizures you know usually he knows they're coming on medication i'm talking about this one incident with regard to this one incident there's no evidence that sergeant philips was present when he had the seizure he was called to the incident after the seizure occurred on january ninth he saw that he had his eye there's testimony bomb if you look at the medical records when the when phillips called the nurse he immediately reported the other he had a he called it a pump not on the eye and so that was clearly visible and that was the injury that he sustained before phillips ever arrived but if you take the plaintiffs where the plaintiff is there he generally just said oh well you know i was the sane and additional injury once i was in the cell which it's not the case but if you take that it's true except that it's true now what's the answer if we take that as true  sergeant philip still acted appropriately and reasonably under the circumstances and would be entitled to qualified immunity he called the nurse to get him assistance he started a med watch where they watched him every ten to fifteen minutes he provided an extra mat he did reasonable things to ensure that the inmate was safe and secure if he sustained an additional injury involved he was in there that doesn't mean it's deliberate indifference but one do you contend he had the injury he actually had the the whole reason that sergeant phillips was called was because he has a seizure in his cell with a cellmate and he when he hit his right eye on the table in the sale and that testimony that was before he was moved into the  just just difficult to figure out when where or what you supposedly hit is her head in a drain i have no idea what the dream looks like order the is what it's composed of the whole thing we have to do that but even if he sustained an injury after he was in the sale it wouldn't be deliberate indifference because the the officer acted reasonably under the circumstances it was objective we reasoned all depends on  sorry or he took him into the holding cell if you had additional injury then when did phillips leave well your honor phillips would have gotten up at six am that morning so there i mean he was still there for several hours after the instant but i don't know that that's in the record but what's more important is that phillips did order the ceo's who were on duty to perform in med watch and they watch in the put a report of mantras an extra mattress down did he leave then was or seizure after that you know somebodies got to play wonder he was left in the cell and but a med watch was performed where the c e o s would check him every ten to fifteen minutes so they're able to observe him in the booking  court does not have jurisdiction to hear this case on appeal at this time the definitive asking for a second bite at the apple they're not entitled to the united states supreme court in johnson v gentleman's health is a holding this is an addict or something like that defendants entitle to invoke  point we're familiar heard of the case answer to the questions we were just asking about where folks on the phillips incident is and what i heard to be saying is you say one thing there are witnesses say another thing but what i heard to be doing was providing a qualified immunity answer to either one so i thought that's what solves the johnson v johns problem as long as you're willing to address deal with the facts as you as you  tell us tell us what you want the facts to be on the philips banging the i do you think he was injured in the saddle or was he inch injured in the observation you tell us what you want but the one of your facts show us what's the what's the way to think about that where was the injury i heard her to be saying we'll deal with the legal issues whether that's deliberate in indifference under that version so we just established that in open court so that's jurisdiction i mean this court has said that which which injury the first one the second one bowl response by different phillips the actual dragging on the mat and dumping them in a cell and leaving when they are where he so the initial injury was not deliberate indifference that's just unfortunate  about phillips at that point or them psycho about nerve or they talk about philip's or nurses who are they could talk about both they said both would respond so that's why we have the two nurses defense in this and we also have the people that we could identify as not responding but i think part of the problem discovery was that mr newberry is in a seizure so he doesn't know who's not responding who's not in the there was such a blur of the inmates they couldn't respond they didn't even know who was responding you know this is a traumatic but we can identify so i think in the broader perspective of things is that the let's just maybe just talk about each thing just to get it so in the map the dragging in the map that strikes you as deliberate indifference so i mean he's just had a seizure so yeah i guess i get i get the first reaction the first intuition is that's a strange way to move people but why is that deliberate indifference given the risks i mean if you put them in something they want to identify this one point because it's a clear point and it would make life easy if it were true the idea that every time there's a seizure a person has a duty to call nine one one  no but this medical facility did not have medical staff on staff twenty four seven they knew that there was only at the nurse there is hours a day monday through friday on the weekends it was only a nurse there two hours a day saturday and sunday there and they know that there's large gaps in time there's no facility in an hour but to be in a hospital the whole time as opposed to some form of jail i think he wanted treatment for his seizures that were increasing in intensity duration frequency especially during september october november of tw also talked about the delay and care he's he's grieving he's saying hey i shouldn't have to wait two days after i have a seizure to you to get medical treatment and so he's everything's there as far as the  remedies and so forth but to your point your honor at what point do you call my mom and that's a big question then nurse said ten minutes so we have evidence of his having a seizure for ten minutes twenty minutes and so forth cluster seizures i think in their brief  even said come grandma seizures so what point do you call my mom one but certainly when someone's having a seizure for twenty minutes it if i have a seizure right here everybody go pick up the phone call the phone and make a phone call if you know i have epilepsy you still going to make that phone call it's just it's a reasonable thing to do and dumb you know and i go beyond that and say it's a decent thing to do  the same file against all of them right as craig so so the plan is we're going to get summary judgment motions there and if if you lose that you could appeal potentially final judgment and if if you win they could appeal right not my understanding appeal that's a that's actually an issue of law and so i can go through that i'm prepared to one clearly established question here is where does it say with someone who's an epileptic that has a seizure that you always call nine one one why isn't that the issue of why we're looking for the law for it so every single word  i think would be very difficult to find lost such as that i think under the circumstances of this case when there's not twenty four seven medical coverage when it is appears to the inmates and maybe perhaps marie you know observation years later that mr new a p x five sixty eight deep inside is five eighty five eight zero published that work for clearly established law it would help hopefully be persuasive to some of your peers condition such much less serious than seizures has satisfied the standard that's the standard the judge to prong and that's to be cream are six eight zero federal third one zero one three and the pin side is one zero one eight so  maybe not quite under the constitutional framework but i think we can get there though i mean i think mr newberry can get there by saying the clearly he the eighth amendment has  when you look at the record in this case mr newberry is testimony has been that his worst he was having three to four seizures a week somewhere around his best you know he says about a seizure per week but when you look at the course of treatment  the medical records in this case mr there's only seventeen or eighteen documented seizures either they were documented by medical staff or documented by the corrections officers and that's over a fifteen month period clearly there were seizures that mr newberry was whatever reason the glock and the and the problem for the plaintiff though in this case is that he has to specifically establish that these three defendants had the requisite knowledge to establish deliberate indifference there's no he talked about twenty minute seizures there's no evidence that any of these defendants were involved in any twenty minute seizures with mr newberry if there was a corrections officer who saw a twenty minute seizure and the nurse was not called and there was no action taken perhaps that would be deliber indifference but that's not what we're here on today today we're here on whether or not you know sheriff melton obtained the requisite knowledge to know that this man was in distress or was at risk of harm and facility and there's only two documents that are allegations that go to that point and neither of them provide any information to the sheriff to establish that kind of liability with regard to the jail administrator shannon harvey the plaintiffs pointed to three two grievances actually three grievances that were all over one weekend and were right before that he was obtained a visit with a doctor so that he could see you know what to do about his seizures he had a potassium test after that and there were no seizures for all of that he had a seizure a few weeks after that but then there were no seizures documented for six weeks as a jail administrator there wasn't anything that put her on notice that the medical staff was not treating him appropriately or that he was being mistreated by the staff that's all that's required if they get their medical assistance as long as they don't have knowledge they're being mistreated then they're not being deliberately indifferent and in this case you know the plaintiff has failed to even meet the subjective component of deliberate indifference was everybody assuming that with this case that  would be one trial assuming there wasn't some a judgment that there would be one trial with respect to whomever the defendants who were there were left at this point but now from the beginning wasn't that the assumption yes or this was one complaint one playing to be a trial against whoever was left standing after summary judgment the one thing i have to say this in iraq to repeal i don't think there's something that prohibits you from filing it but the reason you file it so you don't have to stand trial that was not going to happen and tell the nurses summary judgment motions were resolve senior we have filed it move the you know that was the choice the defendant made in this case and i understand that there's some confusion about that but at this point you know we do feel that the defendants are entitled to qualified immunity think that  shouldn't have to stand trial on a case when there is no evidence to support any requisite knowledge against them and you know taking all of the facts in the light most favorable to the plaintiff they still just don't get there it with regard to the objective component there's no evidence that the each seizure required a call to nine one one that would be you know until mr newberry would have to spend his life in a medical facility because when he's outside the facility he doesn't have medical staff who observe him constantly he's had seizures throughout his life he's had multiple injuries some of them pretty severe but he's admitted that he doesn't go to the doctor every time he has a seizure there's no evidence in the record this suggests that that's a requirement or you know with and without verifying medical evidence to establish that mr newberry should have been saying for this pump not on is i whether he was entitled to anything more than the treatment he got there's just nothing in the records suggests that the we were samantha that sergeant phillips acted objective lee reasonable he provided an extra mat to make sure he didn't hit his head he had him observed and he did everything in his power to make sure that this man was safe and seen by the nurse so unless you have an