boarding before he brought them into court he exhausted both premium and post complaint grievances as to both doctors and although our briefs talk about this double exhaustion with respect to both doctors i want to focus the court's attention this morning on the precomputing grievances with respect to dr panda and the post complaint grievances with respect to dr boarding and for all other arguments with respect to the doctors and p n naff we'd like to stand on our br maddox's pretty complete grievances complained about a lack of treatment for his chronic heart condition ineffective medication and a lack of an alternative treatment plan for those issues these are these issues provided prison officials with notice of what the problem was and gave them an opportunity to cure that problem before he sued dr pangaea dr boarding did not interact with mr maddox until after mr maddox filed his original complaint so at the time of the original complaint mr maddox had no grievances administrative revenues to exhaust with respect to dr boarding and when those remedies became available he exhausted them and then he brought dr boarding to court it's not as if mr maddox was trying to make an end run around the p l o areas exhaustion requirement by exercising his right to mend under rule fifteen he exhausted his remedies and then he brought the doctor into court now defendant's reading of the and the interaction between the the teen essentially repeals rule fifteen and there's nothing in the statute or in the federal rules of civil procedure that compel that result no we don't have a grievances as to new claims and then he moved to him and so at no point were any of his claims and exhausted before he brought any of the defendants into court well works some of the commenced yes that i agree with and i think that gets to defendant's argument of the reading or interpretation of the difference between action and claim in the appeal or a statute and i think the point that prisoner cannot sue and then grieve later but that's not what mr maddicks sit here here exhausted his administrative remedies he sued a set of doctors in his first complaint he exhausted additional administrative his pretty complete grievances exhausted the claims as to him now the lawn grievances that they must alert prison officials to an issue so that they can address it before it becomes a lawsuit the district court below said that nowhere in mr  s grievances did he complain about ineffective medication but i think this is simply wrong three times in a second grievance and twice in his third grievance he complains about a lack of efficacy of his medication and in fact prison officials one of the grievances that i was notification both from the prisoner and fell from the medical facility that's right it's in his in the outside medical facilities thoughts are in his medical records and the prisoner or the prison identified this problem when they wrote in the response acknowledging that one of the side effects of one of the drugs that mr maddicks was getting was that it caused him severe dizziness dr penny argued below or excuse me before this court that there was nothing in his step three grievance that could possibly have put prison officials on notice of his involvement with mr maddox's claim but i again thing that this is completely wrong mr maddox in his step in the his third grievance at the step one level identifies a john doe and do you see a doctor and then in the step two response after the prison began investigating mr maddox's claims they quoted directly from a medical record the doctor pandy himself had generated in which dr pangaea says and is quoted in the response mr maddox is on these nitrates the nitrate despite the fact that he's on these nitrates he's still having recurrent trips to the hospital same that there's nothing to these claims of deliberate indifference your clan really hasn't suffered any adverse consequences and he's his claims here if we take the first three grievances you do need to examine whether if we forget about the last two grievances so in other words if you disagree with our analysis on the interaction between pillory and rule fifteen you have to look to the first three grievances to see whether those exhausted his claims as to the two doctors so to use to a certain extent you have to look at the facts of the grievances to decide whether they put prison officials on notice of the problems that d complaining about now i agree with you that if you agree with our position in the interaction between pillorying rule fifteen that you don't have to get as into the facts of the first three grievances you can opposing counsel i think factually that they had is not a decision that either dr pindi or boarding were involved with that was strictly a decision made by corrections or cries and so when when we use the term corrections individual say that that wasn't our doing but as far as the just grievances the let's first talk about the three pretty complaint grievances  third grievance which is the j c f one nine hundred seventy four he names eleven people but still fails to name p n d we know the first two grievances sixteen thirty two and seven hundred forty seven talked about events before any allegations in the complaint as to dr p and the national you this is the question before us a procedural question about whether when a prisoner has additional complaints after having filed them action under the statute the prisoner my  after exhausting the administrative remedies may amend the original petition to include the new material is that the basic question before that is the big question before this panel yes now what would be the alternative procedure well that you would suggest the alternative procedure is once you exhaust additional allegations  claims filed a new complaint when there was nothing that prohibited him from filing into another complaint for allegations that happened two years after that for the difference between amending the old complaint and filing   new complying time procedurally it's a difference in the way you do the papers but in terms of the efficiency of the process and the notice to the state and so on what is the essential difference that would make it important that there be a brand new lawsuit with a new number file in the in the district court well and i'd first like to point out is that a panel of this court and  about president right moment how i would just like to know the justice of the situation there are several concerns that i would have a decision saying that you can file amended complaints once you exhaust new allegations in my oath and in my belief which would tend to encourage the filing of amended complaints in pro longer protect it the current litigation other concerns are you know in because of the way the piano array is is written in the requirements a lot of times and i would say in most instances and the answer can also waive in this situation talking about the grievance of the don't play right now i'm talking about the filing of the complaint and why we should why they're ok look at the practical reasons against or practical reasons for requiring them to file a new complaint so what's in store when they file these amendments when the prisoner files in memon to court look said it is an amendment of right doesn't doesn't do the screen that the  either screen the case to determine if it's frivolous fails to state a claim or is barred by immunity and if so dismissed the case that does not apply to the court that it basically is an inconvenience to the defendants no i don't i don't believe it's an inconvenience to the defendants it just for the purpose of the piano or a was was to get these cases in and get get good cases in get them done in here you're giving an avenue you're creating an avenue to allow this to to be prolonged in this instance this is in a matter where you know we talk about and i guess the problem i have with this argument if here you're talking about ok there should any complaint filed but there is a common nucleus of a continuing facts and things that all of us the raw from so seems to me that a new complaint there makes little sense because about because all of these things of sort of in a woven if it seems that way to me i understand in a i've never i've tried not to give the impression i think that perfect but it is it is what it is in we have to interpret it in know that another point that i'd like to make is that if the term and no action shall be brought deals with it and  initial action or a amended complaint you also run into problems when the court does its screening for litigation strikes because when they scream for litigation strikes a prisoner is only assessed a strike if the entire complaint is dismissed for being frivolous barred by immunity or fails to state a claim so if you now say no action brought means also no claim brought to the district courts then assess litigation strikes when one of the claims that are brought is dismissed but is being you know failing one of the three tests there have been up here if we adopt your f the complaints i mean clearly they can amend complaints that where they've exhausted prior to the initiation of the lawsuit the bringing up the action what i what the p r a prohibits is exhausting procedure later on in april two thousand and twelve he did indeed have that procedure after it was determined that the criteria were met and the findings were normal  i don't his current medical records i'm sorry to say i can't answer that maybe his counsel knows better you know as far as the issue before  us we're looking at one night in august of two thousand and eleven when ms nath was the i'm call medical provider for the facility of housing mr maddicks mr maddox complained to the nurse that he was regarding mr maddox's very recent hospital visit mr mannix had gone to the hospital just a few weeks prior on july twenty sixth two thousand and eleven after having similar complaints at that time he did not have a heart attack or other cardiac event and that was one of the occasions when the hospital cardiologist had suggested doing on her catheterization it wasn't done at that time he went back to the that was based on information including what happened at the hospital just a few weeks earlier mr maddox had had a stress test also if she got that information the stress test was normal his e k g results  this complaint was actually quite detailed is to the facts that he did include in there that the nurse had provided ms now with all of this information and then ms nothing then determined not to send the hospital at that time he was given instructions to return if he was worsening and in the morning on august fifteenth he was still complaining of chest pain and at that time he saw a different provider a doctor rhodes who decided to go ahead and sent him to the hospital again he didn't have a heart attack he had no cardiac event there was a suggestion for her captors ation which doctor at home and chose not to  proceed with because he didn't meet the criteria months down the road he did have that procedure and it was normal but with regard to ms nothing we're looking only at this one decision that she made a poor would you like us to do  six motion and that want us to affirm or feel correct and the district court found that there was no serious medical need additionally there was no actual physical injury which is required under the p whatsoever even if even if there was a serious medical need here somehow when he went to the hospital the delay of him getting there did not cause him any harm so underneath here there would be no valid claim there this is a classic case of disagreement with medical judgment and now subsequently after being  there was no medical emergency on that night i would also like to specifically point out that the carter case that appellant cites is distinguishable because in that case the prisoner actually did have a heart attack a fatal heart attack and so a serious medical need and an injury and additionally that case was dealing with corrections officers who were  prisoner's complaints they're not medically trained to make a medical judgment call they are not a p a who has stress test results vital signs e k g results you know all of this information from the  hospital visit at her disposal to exercise her medical judgment which was in fact cracked this case is more like broccoli that we cited in our brief but in that case brock actually did have a heart attack it was just at the medical providers decision making for ract but it was still a case of medical judgment also another example similar to the is burgess t fisher which involved an prisoner who had had fractures but they were identified not because the medical professional wasn't trying to assassinate a terminal it was going on with the prisoner but just because her judgment was not correct here we have correct judgement with no injury at all so this case is actually better for ms nothing in these other cases  or for those individuals basically in the correctional environment medical providers have to make touched tough judgment calls like this all the time and you know when their judgment is right it's not deliberate indifference and it wouldn't be good policy to allow a claim like this to proceed in that case when they are right thank you  to answer your question judge merritt my client is still experiencing recurrent chest pains and he in fact is still getting the same drug that i was talking about earlier this nitrate which the prison officials dr pantea has even annex which the doctors at the outside hospital were recommending that he get dr pantea eventually gave him a six month prescription from the script ran out and he has not been able to get it since but during that six month period he had no third grievance he named in and you see dr generically and in looking at the record below it indicates in his objections that he actually tried to get dr pandy as name from the physician that was treating him immediately after roads but could not get his name so he used the generic name and then when he discovered the name he he named in the lawsuit i mean and i don't think under those facts a strict enforcement of the  requirement to name those involved with the incident is appropriate here first of all the prison ended up figuring out dr penny was involved anyway so saying dr pena's name in the first grievance doesn't get the prisoner doesn't get prison officials any more information than the ended up with at the end of the day it also sets up a situation where defendants might be able to avoid litigation because subordinates are protecting their identity from in there sort of working my client in the in the complaint alleges that she did get some information nurse who he's provided p and f with information at around midnight on the night in question in about three minutes later she called the nurse back and sent him back to the housing unit i think from the face of the complaint we cannot tell if we're constrained to the base of the complaint what judgement or analysis actually applied in making the decision to turn causation my client is and have to have had a heart attack in order to have a deliberate indifference claim and i think if if she indeed made a differential diagnosis and applied her medical judgment in sending mr maddox back to the housing images if if if you don't have alleged any adverse consequence of the pain and suffering that he went back to the housing unit and spent than spent the night in pain until he had to go back to the doctor in the morning and she sent him to the hospital i thought that she called good doctor and spoke with him or some consultation before making her recommendation a decision as to named in the grievances not the grievances and in the complaint there's a nurse will who ended up operating under the direction of dr but nurse murphy is the nurse that maddox presented to in the housing unit and she called p a now and then p n f called back and said send him back to the housing unit and if there's a record that would be enough actually made this judgment on the basis of those medical records but from the face of the complaint we don't know what analysis you apply and if you say that that after the nurse called that that only three minutes lapse before have called back and put them in back of the file that's right and it's not clear from the face of the complaint and i don't know whether this ultimately matters but it's not clear whether on the first phone call to pm next house nurse murphy actually spoke with left her a message and again it was close to midnight so i don't i don't know but three minutes elapsed and she called back and said send him back to the house thank you very much or thank you during this pro bono or take it y