changed their position completely meant in their answering brief at page eight and decided to claim that it was legible and they offered an interpretation this just this discretion really in the situation any reasonable official would have known that they could not have transferred appellant to her in valley state prison based on his medical record and his oral protests indicating he was high interest about this court has found in many instances that prison official that when they know of and just regard a substantial risk of an inmate health and safety in their decision to transfer the inmate more specifically it is well established that exposing an inmate to environmental conditions which pose an unreasonable risk of serious heinz and is not we're not asking the court to do anything with hines because in hines the course specifically states that there is an appropriate nest of denying qualified immunity where the official knowledge that officials have so that in addition to his oral protests both akron valley state prison and california state prison los angeles county is enough to put them on notice of his documented re on the medical crow no and the lower court what that goes to show is the level of knowledge that the officials had at that stage what they could read was read the valley fever what they stated that was illegible was what they now claim orally twice to all defendants and said that he was at risk of valley fever and this court has found that such oral protest is enough to show that they were they ha good morning your honour's may please the court david good when deputy attorney general appearing on behalf of the defendants pelleas in both appeals the court should affirm the judgments below for four reasons substantial risk of serious harm rd there was no abuse of discretion in denying mister odinn appointment of pro bono counsel because he was able to capable of articulating his claims and because he did not have a reasonable likelihood of success on the merits and for there was no abuse of discretion in denying mister owed an appointment of a neutral expert because it would not have impacted the qualified immunity analysis on the motion to dismiss i'd like to devote my time to the qualified immunity issues but i would be happy that answer any questions the court may have about appointment of counsel or to be clearly established a legal principle must have a sufficiently clear foundation in the then existing precedent and not simply suggested by then existing precedent that right must be defined with specificity and not at a high level of generality neither the supreme court nor this court has addressed the requirements for based on exposure to valley fever this was true in two thousand and nine was true in two thousand and ten and it's still true today the lower courts therefore correctly concluded that  established at that time and it found that for three independent reasons when the officials acted the case law at the time did not clearly establish that their actions violated the  amendment second because the plot a receiver oversaw the delivery of medical care to the state's prisoners and protective measures regarding valley fever  said that state officials could have reasonably believed that their actions were constitutional so long as they complied with the orders of the receiver and the plot of court and i'll come back to that but the rd independent reason is because millions of people still live in the central valley society is not at the point where they have accepted that nobody should be unwillingly exposed to this risk now coming back to the plot a receiver issue i know my friends on the other side make this a big issue in their case what's important to know is that the plotter receiver was instituted to oversee the delivery of all health care to the state's prisoners up and down the state a plo receiver institute's policies and procedures for the delivery of that health care the receivers memorandum does not establish clearly established law for a couple reasons st we know that the standard for establishing clearly established law we have to have precedent from the courts we simply didn't have that at the time in two thousand and seven second the receiver policies and procedures are to deliver good health care not the bare minimum of health care the receiver doesn't determine what type of health care satisfies the th amendment and what doesn't satisfy it now we know that the receiver's policies don't go below them and standards but that's not to say that they don't go higher than what's required by the th amendment it's important to note that it's for the job of the courts to determine know that's correct your honor and that brings me to my rd point this same argument was made in the smith case which was one of the consolidated cases in heinz this smith case was brought on behalf of over one hundred inmates and almost all of them the basis of their claim is that they were at some heightened risk they were exposed to valley fever the smith court specifically looked at the two thousand and seven memorandum the receiver's policies and still found that the officials were entitled to qualified immunity heins of firms the decision and smith still entitle the qualified immunity and the reason why is because again the law was not clearly established at the time that heightened exposure to valley fever or heightened risk of contracting valley fever violated the th amendment but even hypothetically assuming that the two thousand and seven memorandum from the receiver is considered an order from that court it's still not clearly established because it can only be considered an order from a single district court but we know that valley fever covers well it arises throughout the entire southwest of the united states most of it in fact occurs in in new mexico it also occurs in texas and so at the time in two thousand and nine in two thousand and ten which were the critical years in this case the law was not clearly established such that the pelleas would have that's a closer question your honor but the court doesn't have to address that because if we look at the medical records in this case and what the custody officers would have evaluated when determining whether mister oden should be house or current valley no reasonable officer refer the court to export a record ninety four and if a court looks at the two thousand and seven memorandum and compares it to this document it'll see that it's quite clear that this does not fall within the two yes your honor so the court can consider it the court should acknowledge that it contradicts his claims and even in light of all of that we still fall back on the qualified immunity issue thank you that's all i'm looking at ninety four dollars of the record the medical doctor who filled out this form did not specifically identify the criteria in the two thousand and seven memorandum and they were required to do that but it's not clear fro not list the criteria in the two thousand and seven memorandum which it was required to deal it does not show that mister oden required any routine follow up it does not show that mister odum required any urgent followup it does not show that gains the pleadings must be construed liberal and your honor opposing counsel states that the november two thousand and seven memorandum cannot be clearly established law it is not our position that the order itself is law our position is that the order in compass is already established th amendment law such as hamilton and helen which states that inmates cannot be exposed to a substantial risk to their health and safety the platter receiver took the latter receiver was ordered by the court to address rampant th amendment violations in the california prison system and this was one way to deal thus qualified immunity may fell even a novel factual situation so far as the constitutional violation is clear this court has denied qualified immunity even when there was no clearly established law or the factual allegations established with obvious parity that the officers increase the danger