we are now ready for our fourth case of this morning cecil against molina good morning ma'am please the court the central issue in this case is that mr cecil is a type two insulin dependent diabetic who was denied and slang for over two years punishment for filing and the minister of grievance mr cecil adequate to address the diabetes your honor there is no specific medical evidence in the record that dr moats didn't believe that that was a sufficient sufficient  as a result there was no discovery on mr cecil's diabetes and what the appropriate treatment for mr cecil's diabetes would be and that's the principle problem here that we're arguing that had t which was clearly stated in the amended complaint been allowed to go forward mr cecil would have been able to pursue a discovery that would have shown that a type two diabetic and his condition and proper treatment wasn't that five  prescribed in october of twenty ten but looking at i mean i had a very similar question because if the renewal of the insulin on october twenty nine twenty ten was was enough to cause the statute of limitations to start running then this case is too late and at least on that point never mind the other point for the moment and even if medication but for a brief period a doctor had prescribed him a small dosage of insulin but the point of contended was just insufficient to treat his diabetic condition and that was on summary judgment and this court suggested that if the plaintive had been able to put forth some evidence in the record that that was such a deviation of professional standards to supply that small dosage of and so on that that could in fact state a claim for deliberate indifference under the eighth amendment and unlike waldrop the situation here is my client was actually barred from pursuing discovery and the medical nature of what proper treatment would be because the claim wasn't allowed to go beyond the screen stage so he alleges kind of backing up symptoms that are consistent with diabetes feet swollen blurred kidney pain cetera and he says through lack of adequate diabetes therapy and i know one of your sort of predecessor arguments is that the district court shouldn't have construed the complaint as stating only retaliation claim based on that's why even though in general what you're saying about the need to get to the next stage is something that we should consider the october twenty ninth date strikes me is  important you know we've got evidence in the record saying you know he took the insulin from october twenty ninth forward i thought there was even some evidence in the record that you can correct me if i'm wrong suggesting that the the ten whatever it was ten grams a day is getting five twice a day is the proper starting dose so maybe you could comment on that certainly and so we are greedy that this is the crucial question of treating his diabetes because four months passed before he had another appointment with dr moats and when he saw dr watson the next appointment his blood sugars were still high because they weren't being treated and it was five units twice a day though right correct and then a god doubled in february two tendons twice a day and that's simply our position here is that had their record been properly developed with expert testimony an expert expert could have  ed that in fact dr moats certainly a professional his situation would never have prescribed insulin at five units for a diabetic who had been taking insulin since two thousand and six let's remember he went without  well your argument basically is that because dr moats ultimately doubles the dosage that would help to prove your allegation that he knew he knew earlier that that's what it should have been that's correct that's certainly one inference that we think that that's not just a doubling i thought you were saying because it also used to be the ten twice a day that he restores it back to what it was a second or the records a little complicated the type of insulin he was originally taking on right is a little different so it's hard to compare exactly what the units were what is his what is his situation with his thank today he's still a type two diabetic and the records reflect that he is taking insulin that was that he is still taking insulin today to try to know what's his can what's his physical condition oh he's he's still he's is a much better shape now that he's on in mph and slant the medical report from the four months later the first thing that you see as a blood sugars remain high and i know if it did get cured when it went back up to the ten twice a day it it did without us i know what's his current situation the current his current situation as far as i understand is that he is he's taking enslin at the new facility that's been my question what is his what is his bodily situation  are there long term effects from the two year hiatus the record does not reflect that and in fact that's not what the standard demands the fact is that dr moats was deliberately friend by basically withholding insulin from his patient for over two years so you're saying he was essentially in pain for two years that he didn't have to be and and physical discomfort and that's the theory absolutely absolutes not that once it was fixed there's also long lasting damage it's just the temporal pain that's correct it's from for that two year plus period i mean this mr hoffman excuse me please but could we go on to the spine injury for a moment because given the evidence the doctor motu repeatedly tried to treat the injury including utilizing x rays and an outside neurological outside neurological consultants how do you think we can conclude that there is evidence of deliberate indifference as opposed or even gross negligence here you know we can see that the back issue is a much more difficult question and the point i'd like to emphasize is that there is a difference between the treatment  his lower back and the treatment he did not receive for his mental back and that's our main point where we're not disputing that he received examinations and he even was referred to an outside consultant to get an m r i of his lower back the problem is after that all happened he continued to have pain and dr most ignore that pain and not investigate alternative sources of that pain and that's the basis of deliberate indifference claim there but he was getting better i mean he winds up jogging two or three miles a day he couldn't have been in excruciating pain i would imagine maybe so not comfortable or he's a slow jock or twelve minute miles or something but that's that's not too bad and i mean i guess it was a compression fracture of the t eight that's vertebra so i mean once you've had one of those you've had one but it heals over time maybe not the way it should have so says maybe it wasn't very good care maybe they should've moved the x ray machine up a little better or something but they were trying to respond to his complaints he denies some points little back pain is talking about his legs and all sorts of other places yes and well once again aspires to him being able to jog the issue there is that he did recover some were not disputing that but he still was suffering pain and there was a failure on behalf of dr moats so to continue to follow up to figure out what was actually causing that pain as it related to the lifting accident which was really the source of all of this and to see that sure  required insulin and he failed to prescribe it for two years will be sufficient to support a claim of deliberate indifference driving or it would if it were true if you look at the record it actually what the original grievance was based upon was that the plaintiff desire to be restored to his sliding scale insulin we do not argue with the fact that dr moats terminated his sliding scale and saw him and wanted to start him a new on a long acting insulin called in ph but he never prescribed it he says something rather funny for a doctor to say which is that mr jackson sorry mr c so was complaining about this change and type of insulin but actually there is evidence in the records from the october twenty nine forward events that he in fact may have been a complainer but he accepted the different type of this one when it was prescribed for him so i don't see why we should give just positive significance to mr cecil's complaints about uni i know you're probably referring to these medical notes city writes where he says you know educating patient about insulin he doesn't want this other kind but i'm not sure that is enough of an answer never prescribe that he wanted to try he wanted to try working out he wanted to try maximizing his oral medications he wanted to try checking his insulin levels excuse me pleasure to levels on a weekly basis to see if he could do it himself without actually having to so you start taking insulin so each time that the plaintive said something else that he wanted to do d complied with them until eventually there was nothing else to do so what are we to do with the dispute between mr cecil and dr moats about whether these conversations took place mr cecil as i understand it is denying what occurs in the medical records why are we supposed to take the medical records as unimpeachable or what do we do with  you know we find that they all year to provide medical care is that continuing violation why should the limitations period you know regarding the diabetes point begin to run when he begins again describing insulin given the what the client is here is that the level of insulin prescribed was inappropriate half the amount that the man needed and that doubling of that dose to four months later really does lend support for that claim don't you think well ju over two points i think first of all the nature of diabetes how much insulin to give at the time is dictated by how much blood how much sugar is in his blood at the time so because three months later he actually prescribe it for one hundred eighty days one hundred seventeen days at one hundred seventeen days he realized that it was not sufficient and he upped the dosage then if you look at his transferred c i greenvale his new physician actually placed him on sixty units of insulin and said he saw a marked difference and that he would not raise his and his his insulin level until he would become compliant with testing his blood sugar levels so the fact that it started at five is not necessarily there's no evidence or that that has shown that it was not sufficient at the time if anything what was shown was that when it was over the long term when it was shown not to be sufficient dr moats complied by raising up the dosage so in addition any claims for his bath or his insulin therapy would be time barred with real at the back it's a little harder to  make the time bar claim for i mean there may be other issues with the back in that as joe drove her we're saying he's getting some treatment although it doesn't seem to be really addressing the problem because everybody seems to be focused on the lumbar region instead of the the ras or region but he goes to see the outside neurologist there seems to me he doesn't really get the back address until he moves to another prison well your honor i would ask you to take a look at the medical records starting on november twenty fourth two thousand and nine that was actually the first time that in the record reflects the plaintiff actually complaining of pain in his left middle back and at that time with they believed it to be because it was a look at he also was showing blood in his urine that he was developing kidney stones and at that time he was placed on six steroids calcium blockers and then on the following so he's missing eleven twenty four two thousand and nine suspected kidney stone placed on the calcium blackard placed on the steroids the equipment for the x rays or the cat scans are at this i happen is that the prison urgency to people have to be sent to outside facilities to have something like a back x ray done your honor i have no idea i'm just wondering what would the burden of been be isn't it evidently when he's transferred to the new institution they do an x ray of his entire spinal cord is cop column this vertebra and that's when they see the old it by now old you know a compression fracture carette and i think in part i wonder if it's just you know you take a picture here why not just move the x ray up a little bit but if he's if it's a big production to send him outside maybe it's a little different i do know that at the time that he received be x ray for his metal back he also displayed new symptoms he said he had numbness in the middle of his back which the record doesn't reflect that he complained of prior to that and i want to he had a neurological disorder but was choosing not to treat it yet the record shows that when he went to a neurologist the neurologist said that he was doing fine with conservative treatment he didn't need any surgery and he also didn't mean even a epidural in november of two thousand and eleven to file the claim which he did not and then to go into his diabetes care if you base it on the october twenty ninth two thousand and ten when he actually began to receive treatment for me the insulin the timeline would run out in october of two thousand and twelve oh that's that's clear if that's if that's the correct date then it runs out i think the the issue is that the screening stage when you have the comment about i'll show you what no care looks like which we have to assume for the sake of this case this appeal happened and then you know that when dr moats decides to reintroduce some insulin he does it a very low level is it is this enough to get over the hurdle for at least stating a claim and to move on to summary judgment well i think what is unique to  set of facts is that because the first amendment claim was based on the exact same set of facts as the eighth amendment claim for the insulin the district court was allowed to orally review the medical records based on his treatment for diabetes and they'd claimed at that point that any that all of the medical treatment that he was receiving from the termination to when it was started again was all based on the medical judgment of dr scott moats so in doing that it still would have thrown out in the eighth amendment claim for deliberate indifference with regard to his insulin the first issue i'd like to address is that is that council stated that dr moats didn't prescribe and ph and sloan because mr cecil only wanted what was called sliding scale insulin however that is a factual that i think that he got that from the fact that for the previous two years he had been prescribed what was called a sliding scale insulin and so in his grievances he was demanding that his insulin be restored and he effective he just wanted enslin to be restored any way that he could get there saying the doctor moats is the one who introduced this concept that he would settle only for the s s i and you're saying that there's a disputed fact the problem is your dispute of fact does require us to look at all of these medical records that are there and assume that they are unreliable and we that that's an unusual step to take i'll say your honor i think the medical records it you know advice patient about insulin doesn't want it you know over and over you see that he does but my client has denied that and that is the essential a factual dispute in this record that you know if th i think that dr moats didn't care what kind of and so and he was giving them because he wasn't giving them any insulin and he was using this or at least the jury could infer as pretext for not prescribing mr cecil any oh his refusal his refusal that those know are false the doctor minutes was falsely writing each and every time he's refusing to take the insulin that's correct and that that that is one of the central disputes that my my client says he never said those thing