this brother and sister in law are here and they're in the process of attempting to obtain his medical records from the hospital i don't believe a formal autopsy was done there was a request to the prison to do that but presumably because he died in the hospital and the prison likely do but they have not communicated that information to us would be important to you know the cause of it is important to us absolutely and i think  state's in the process of trying to get this matter why it's i think the state is in the process of trying to get those medical records to determine that on remand in the district court and the family in the state may wish to add a claim for wrongful death in the event that his death did result from the injuries but that's not a fact we know at this point in time and on the record that this court is presented with there is ample disputes of critical facts to send this back down and allow the case to proceed and perhaps to have a wrongful death claim added to the complaint but at this point in time we simply just don't know  why mr miller passed away unfortunately i will note that it was several years after the falls and the injuries resulting from those fall so now there is of course a possibility that was unrelated to his injuries it may have been because of his brain reflected doctors lowered by quarter so it's all on you you begin there and that's the structure of your brief are you making a claim directly against gamble or are you saying that there is some constitutional rule that everyone else out of prison must implement lower bunk permits well up to i'm making a claim to a son farmer versus persist gamble which is that prison officials cannot be deliberately indifferent to serious medical rights then if that's the claim you're making you i would have to say and anybody who knew about a lower bunk permit would know that there was a serious medical condition is there anything in the record that would support that link well the link is that if if an officer just addressed the question in the way i phrased it does anything in the record show that lower bunk permits are issued exclusively for serious medical conditions no lower orders are not issued exclusively for men well in the end then the lower bunk permit does not by itself mean that everybody who knows about the lower bunk permit knows about a serious medical condition true i'm trying to figure out how one puts these things together greg there's more here than just the lower bunk order there's the fact that miller told the officers that he had a brain tumor and that the lower back order was entered specifically to avoid injury resulting from his medical condition so it's not just that he had a request for a little buck or for some other unrelated reason and i should add i don't actually know what other reasons those might be for getting a lower essential matter well at your i disagree because i think here the record shows that miller had a serious medical condition and communicated that to the officers repeatedly and told him all you need to do is december and a second fall in which he sustained the injury as was in february well your honor i disagree with i disagree with that so what the defendants have put in the record is something called a medical duty status for now as far as i can discern that's not in any way shape or form a comprehensive review of what appears in an inmate's century file that appears to be a form to enter a new restriction into a system so it doesn't tell you what was there at the time and in fact the affidavit introducing that document concedes that it is quote a part of the bureau electronic medical records on file for mr miller so we don't know what that says and there's good reason to think the date on that form is in fact mistaken it's december date when the entry appears corresponds roughly to his return to the prison from the second surgery does it not it does not actually he went in for the second surgery around december and only came out of the hospital in april of the following year so he was there for four months to recover from that second surgery so that would have been i mean as far as i'm timing when was the first surgery i believe the first surgery was sometime in you know i apologize but i don't i don't know that at the top of that it was prior to that time but do we have any documentary evidence from the century system of the medical records that shows an earlier no bank restriction well from statement that i think it's there is not good enough well your honor on this record at the summary judgment passer you know the plaintiff's evidence has to be believed that he has more than just his own recollection his own deposition testimony although standing coming back to where my question was the fact that somebody has a lower bunk permit does not by itself create a constitutional entitlement to a lower bunk what i'm what i'm thinking of something the parties brief don't discuss  is the supreme court's decision in castle rock against gonzales a court orders a protective order saying that a has to stay away from the other people in the state don't enforce that and the supreme court held that there is no constitutional right to enforcement just because state actor number one says something that doesn't mean that state actors number two three four five etc must ensure that that order is carried out but that's the problem i'm having with your argument is that since public official number one the physician issued this lower bunk permit anybody who didn't see that it was carried out is personally liable well castle rock expressly rejected that line of reasoning and i'm having trouble seeing why it's any stronger here well you know the difference here is that this is a medical restriction that officers  need is to show that the actors knew of a specific serious medical condition and were deliberately indifferent but that's why i'm asking my series of questions because the nature of your brief is not they knew of a serious medical condition the nature of your brief those they knew of a lower bunk pass well initially serious safety risk arising from a medical condition so this is in a sense a blend of a serious medical risk and a serious safety risk and there's you know fall off then they didn't then he did fall off they put him back in the upper bunk anyway and he fell off again and he got really really hurt it's about a straightforward case as you could have in some ways they knew these things they fail to take the most minimal cost less action they could have taken which is to just check the system and had they done so there's a disputed factor what the system sad but on this posture our version has to be taken as true the system said the doctor answered a lower buck specifically because of this guy's brain tumor so that's all they had to do and then the further action would have been to just put him in the lower bunk another thing that would have been cost less three easy to implement to avoid a serious safety risk i know you can do this case late so you're not not responsible for decisions made earlier in it but does the record show why the plaintiff didn't sue the person who was actually responsible for both assignments but the record doesn't show that my best educated guess coming to this case late is that he didn't know who that person was you know well but you know part of the problem is if there was a real responsible person there it's that person or i don't agree with that the unit team works as a team and if they're so good to the unit team he sued critic two particular people one of whom was a guard who had no authority over bunk assignments and the other was the warden who also doesn't make bulk assignments to people he told he see the people who knew the supreme court held in ashcroft against it but all that being told does not recently as this year which is years have to take ball has examined situations where someone was told something who didn't have the exact authority to address it and found that there was a bit inside ability or you think we've overruled the supreme court i don't think disregards that issue that's an eighth amendment violation ball how old the opposite that's why it was ashcroft the ball the second circuit had held in a ball exactly what you just said and the know your briefs seems to occur at the proposition that everybody can be personally liable for not implementing a lower bunk permit hey that's just one hundred eighty degrees contrary to castle rock but your brief seems to accept that proposition why don't we hold true to it well your honor i think that the cases that you've cited to you today show that should not be held liable every time in make complaints to her about health as an intern in the state in you have a guard who knows that someone fell out of his issue involving an inmate and doesn't do anything we're doing anything just means talking to some telling tell your medical person about this what kind of person head and the guy doesn't do anything what at that point miller should have produced documentation showing that he had a lower bunk restriction forget the lower bunk restriction why doesn't the guard go and tell someone this guy fell out of an upper bunk and fell on his head and if you said that to medical personnel you they would do something mr miller was being seen by medical personnel he had every opportunity to tell them and asked for another the duty status for him to ask her own medical records if he could find this form that he contends existed but he didn't go to  to be more careful in the future as as i said he was being seen by medical the medical staff and he never requested another copy of this lower bunk passing every question that they consider him again for a lower bunk past and the records clear that as of december eighteenth two thousand and eight two months prior to the fall he did not have a lower back restriction by health services and any lower bunk restriction  from health services and that's how in if there was a search and it would have ended up in century but if there is no restriction from health services then there would have been nothing in century what does the record tell us about what happened after the first fall and the circumstances of the first  union hospital and the local hospital and what if those medical records tell us i do not know that off the top of my head your honor there are some medical records that are attached to mr miller's amended complain however i don't remember exactly what his injuries were prior to that he did not when he came back he did not have any kind of neck brace or a back brace as he did after the second fall in february the record shows that officer rogers said he was not a he did not know what he was he remembered mr miller but he did not know  fall and in fact no head injuries and that he did not fall on his head he fell as he was climbing down and the second far sustained resulted in serious injuries but they were back injuries he broke his back yes your answer not a head injury yes your honor that i that think i believe that's correct and that's borne out by the record part or i would have to look at the actual medical records and attach it as a man to complete more closely i mean it wasn't a good book is neg you know or you know sustained some sort of concussion or something else that would be life threatening yes you know that that is true it only if you're trying to connect his death in two thousand and sixteen to this fall in two thousand and nine there i don't think there's any indication in the medical records that they were connected there's an evidence that he had a brain tumor well this also bears on the question that judge easterbrook was facing about but we can assume the guard and the warden knew about his condition and his needs his medical needs and i'm ask him what the record shows about that about what they  what the warden and officer rogers knew about the medical needs and as far as the evidence that we've put forward after roger said that he did not he cannot remember be involved in providing medical care to inmates and mr miller contends that he told her you know several times about his his issues about his but well that's really big he said he his first woman complained he says he told her all of these things and all of these things being like the siren or that he had a brain tumor that he had a lower bunk restriction and that he had fallen from the upper medical duty status for december two thousand and eight in which he's does not have a lower bunk restriction and there's been nothing no evidence presented to rebut that as a december two thousand and eight he did not have a lower bunk restriction determine if mr miller didn't did happen when he had a lot of angst restriction when he did it and it wasn't until december two thousand and eight when he received lower no sorry it wasn't till december two thousand and nine when he actually received a lower bunk restriction your honor neither officer rogers or marbury were medical professionals they were entitled to rely on the judgment of the medical professionals who were treating mr miller and as of december two thousand eight they did not determine that he needed a lower back restriction unless there are any further questions for these reasons and the reasons in our briefly would ask that this court not blaming you i mean one might have expected defense counsel to rely on those cases i can't speak to their decisions obviously i did want to address judge sykes's question about  how mr miller was hurt whether he was hurt so the medical records which i have here and i'm looking at two one one talk about the way in which he was injured and they say he had cervical disc degeneration and herniation bleeding from his head and he was taken on a back board to the hospital where he received the cat scan i don't have the results that cat scan the knot in the record but he did come back i think within twenty four hours back to the back to the present with with no the surgery that he ultimately received resulted in him being hospitalized for four months and that was surgery on account of the second right there's no question a second fall was extremely serious that's the risk that the prison officials were of doing something they did absolutely nothing now i want to speak to michelle's point that there's no evidence to rebut that there was no lower back restriction as of december two thousand and eight that's just not true we have a statement from ward in marbury and it's not that she just says there was a lower bunk restriction on that state she says since since and that was critical since january twenty ninth  grievance the basis now they're turning around and saying well we can't be liable under difference because there was no lower bunk restriction they're basically trying to have it exactly one eighty degree from one another their positions are totally self contradictory now if they wanted to raise present that issue at the time then maybe the administrative grievance would have worked out differently as i think you all know the prison litigation reform act requires prisoners to sort them out a number of grievance process season or even show up to district court there has to be some sense that those grievance processes are reliable or in some way fair and not that the president can just articulate one version of the facts and then show up a few years later and  contradictory view and say well we don't have any of the documentary records so you know it's incumbent on them to maintain a competent record keeping system that's reliable and if they say what the records show then