repetition please and here honor your honor my name is courtney coach cheever and i have the pleasure of representing dr keenan tabs in this matter i would like to reserve four minutes for rebuttal if that's possible and in order to refrain from avoiding refrain from duplicating any facts your honor i'd like to just start simply with a dish a county jail is a rural jail in eastern utah they contracted with dr keenan tubbs to assist in providing medical care to the inmates at that jail as part of that contract dr tubbs was supposed to be or have someone at the jail once a week to provide clinic he was there to provide call tw seven and providing training and supervision to the jails single lpn gemma clyde dr clint tubbs and contracted with ph clarke to assist with the weekly call at the dushan county jail it is undisputed jail and throughout her stay it is also undisputed that dr tubbs was at no time contacted by jail staff or nurse clyde regarding any of miss johnson's health concerns and fact dr tubbs was not informed of her death until after it occurred significantly as your honour's already pointed out this was the st death of heroin withdrawal that dr tubb sit encountered specifically a on a sort of one off basis when somebody would come every week i mean given the potential for serious situations that would occur at the facility why isn't that the liberally and so it's not deliberately indifferent your honor because this training was provided one on one on a weekly basis and in fact as the only medical provider at who is stationed at the jail and this one on one train was probably the most efficient way to provide training to this lpn not only that but the lpn comes with training although she is not able to assess or diagnose an lpn has a background in health and providing health care that is an issue that was addressed in the conic the thomson case before the us supreme court well to provide you with a protocol as to what to do if they were  zero speaking of undisputed facts only just make clear what your position is on this the district court's analysis here in my view was less than optimal in the way it went about this and i think you pointed this out as well in your brief in the sense that the court relied on genuine disputes the material fact when essentially what it was supposed to be doing was applying the law to an established set of facts and that established that in fact was plain to version of the facts of supported by the record and so i want to be clear because if we do it because if there factual dispute that that's what we're talking about we don't have jurisdiction in this so we're willing to accept minus version of the facts as supported by the record for purposes of the appeals that's correct that's correct tubb eligible for qualified immunity as a private physician to contract to provide medical care at the jail but also plaintiffs have not and now not as stablish that madison gentz is clearly established dealing with a large companies this is an individual doctor who is providing services at us small jail isn't doing it at that jail that's the that's the predicate of my question the question is you still have multiple jets so he's got a business he's got a nice little business model but you're asserting his doctor for multiple counties and so why is he eating different than one of them not jensen versus wayne county where you got up probably probably organized group a psychologist providing services to the government once again this is a single physician that they don't have the kind of benefits or other protections that are afforded by companies or even groups of physicians in providing care and treatment  and so your honor is we look to as you've already gotten into when we look to qualified immunity and whether an individual physician is eligible to receive qualified immunity for a large ski and richardson make it obvious th is an analysis that takes place not only by looking at history but looking at the purposes of qualified immunity and when we talk about the purposes of qualified immunity the next one we talk about is that we need to attract talented candidates to government service and sell our ski recognize that when private individuals contract with government but then they are left holding the bag for liability but the rest of the team that they work with enjoys immunity it deters counts and talents of candidates from working in government this is also an aspect that just a sort of s or pointed out specifically in her concurrence where she says there is a real risk that the individual will be intimidated from performing his duties only if he alone may bear the price of liability for collective conduct which is exactly the case we have here plaintiff brought a cause of action for supervisory liability not only against dr tubbs but also against the sheriffs and brought one hundred and eighty three actions against all of when dr tubbs worked with each one of those individuals d and each one of those individuals were aware that they could call dr tubbs two hundred and forty seven if they had any concerns about an inmate's he or treatment furthermore dr tubbs did not hear of the ability to hire or fire any individuals at the jail and so in doing he was inserted himself into a team and then he however if he is not given qualified immunity is left alone to hold liability at the end of the day if everyone else is given qualified immunity and by then he didn't have the authority to fire because he did not he also did not have the ability to hire her and furthermore courts would like to make sure that  from the duties of providing parents freedman's or of governmental duties now of course all of these things are public policy issues the courts address when asserting whether or not they can grant qualified immunity now plaintiffs however would like this court to focus solely upon the common law but because and and find just because the defendant is a private entity and as a physician that the common law does not afford physicians qualified immunity well of course richardson found st of all that resistance had enjoyed qualified immunity and richardson are full arcee make it very obvious that this is not a attorney now the attorney was not advocating for the government the attorney was performing an investigation as part of a team now when that attorney who was sued as part of that invest as a result of that investigation and all of the other parties received qualified immunity that attorney was left alone filled in the back what what did tubbs know when you know no i said thank you so we're all now we're all fashion i appreciate it thank you your honor so it's our contention st of all that dr tubbs is entitled to qualified immunity as an individual physician employed or contracted with a small world jail to provide his his duty to train and in fact was not contacted and had he been contacted as had been the custom in practice at this jail then he could have intervened but no i don't question here right is whether whether you are entitled to qualified immunity and i mean both as a eligible for it and then entitled to if we were to hold that you were not eligible for it then it's game over if i mean your well your conduct or lack of conduct for purposes of this appeal it's game over tubbs is eligible for qualified immunity this circuit has not yet decided that and for somebody similarly situated dr tubbs i think that there's a case currently pending before the circuit goaltender out of the distri mexico but it has not been decided yet and so it's an open question but but i think here the best case for the court to consider is the th circuit case of tepid which we briefed and  is tannery private physician and they were all setting it in say a private physician or a psychologist i can't remember which but yes it is this is a similarly situated person and and here's why i like tepic because tapi comes after d richardson philosophy and it does a deep dive analysis of the supreme court and that weight weight of analyzing this particular issue and so it goes it starts with the threshold question how do we what does the supreme court say we have to look at to determine whether or not qualified immunity should extend to a private person and the st prong of that six analysis is let's look back at  communities were given to similarly situated people at the time that section one hundred and eighty three when asked because if no such immunities existed there then we don't need to assume that congress was trying to abrogate it  in that code section and secondly let's look at the policies the public policies behind section behind qualified immunity we don't want to screw candidates or or applicants from applying for the job we don't want to distract them from their job related duties and so have the technique or went through and looked actually at the cases that existed back in that time frame they did a very thorough analysis and they determined after looking at all that that not only did immunities not exist for private physicians working in private practice or for public facilities but they didn't exist for public physicians working for public facilities and then it went on to that allies the the the the public policy factors and it does the same thing that judge holmes alluded to earlier these people can afford to they they can increase their pay and they can do that they can increase their benefits they can be competitive because they're in private practice that's not something that a public official can necessarily and in particular i want to focus on the question a working hand in hand with government officials and why should he be held to hold that we'll ok there's a th circuit to my knowledge is the only circuit st of all that has gone in this direction for a private physician and as we briefly think the th th th and th circuits have gone the other direction and said you don't get qualified immunity but but i believe that one of the big factors of the th circuit considered in the in the case that you referred to is that the government there had a direct hand in supervising the actions of the medical provider issue and that's the same thing th that was persuasive to the district court in ten or it d was this this idea that the the governmental agency or county or whatever it was at the time was directly overlooking or had oversight over what the doctor was doing and so there was some accountability there that's not what was happened was happening here dr tug's has no oversight and we have sure borden's testimony that he had no medical expertise that he relied exclusively on involves a private individual brazenly associated with a government body serving as an adult the government is a central government activity or acting under close supervision and ok fine it's not dealing with those situations well one of those situations as if ticked off and this is what goes to put no not at the th circuit case it's a situation where you're providing a function that the government's going to provide one way or the other and you're doing it hand in hand with government people circuits define you now it just falls more in line with what the supreme court did and it's looking at this is just looking backwards and saying what was what kind of immunity was granted to this set of persons back at the time that the statute was inactive and the bottom line is that is that there wasn't any for private physicians and so i think that's the factor that matters the most here is what was lost well i think that locket st st of all th circuit has a true that case as an outlier i think by virtue of the fact nine that it's still considering the question as to a private position to be open but but there i think the differences involved in execution are somebody w coming in to perform specifically executions for the government which not only historically but i think by law can only be a public function there are no private practice executioners and so that was an easy call i think  because that is the quintessential government function but but we can't say the same for providing medical services that that that that has arguably a much greater presence in this in the purely private realm and so i don't think it would be right to extend this doctrine to somebody who knowingly contracts with a county or other governmental agency is reaping the benefits of a salary and benefits and in this case has a lot of gigs at nine different prisons and then somehow can be immunized from his actions he can contract around that rift accessors know or not act and if her correct about but in this situation what i want to focus on is the whole question of linkage i mean he is b clive there's no it's game over right for you i agree and i disagree i would say it like this if there has to be a constitutional violation by a subordinate in this case nurse  there to be liability for doctor talks in this particular case i've explained in my last argument why i believe that nurse clive violated madison's constitutional rights and so with that underpinning now we have to look at whether or not dr tubb has failed to create policies or or under or put into place training that would help his subordinates know what to do and that was what the district court was so hung up on i mean it was we're talking about dogs versus richardson we're talking about keith versus kerner we're talking about a complete failure to train again if we're given the benefit of the factual record here we have nurse played say in not a single person at the jail training me on what to do in this circumstance or on any jail policy whatsoever  he works hand in hand but there would suggest that the look the rationale for varsity would be a play and saying why should we be be held holding the bag when everybody around him including the fact that he would be subject to liability in part in part based upon her to still violation why should we be something to meet well i think the one reason your honor is that he knew that going into the deal i mean he has a private party he has the privilege and benefit of of contracting around these things if you doesn't like that circumstance he knew he would be presumably in a position to say i need my own nurse eyes on the ground and so so really there's nobody at the jail six and a half days of the week who knows anything about medical treatment or anything to do with medical issues does the lpn or itself have trading as and she said i didn't receive any training about that from anybody at the jail and so yes you know the call if you based upon the training she had previously you know he she knew that she she knew that she could call dr tubbs or a lot when clark if you saw something that was concerning to her but my point is that she was never told what should be concerning and so and and  illustrated as a district court pointed out by her mother in action in the face of medicine symptoms and so for reporting i mean she didn't even know she wasn't even told to document her condition to ask follow up questions to call the doctor when somebody is saying they can't eat or drink for four days that that evidence is the that that created an issue of fact in the district court's mind of an utter lack of training and the evidence itself is that there were no policies in place other than call me if you're concerned so that that that's not really a policy and lawyer to have written policies in your well i think well for the record of that there are no written policies and argument in some sense argues against it still a good one and you know in the prior argument you're telling it's a nurse client and it deliberately different because she subjectively turned away from a risk now you're saying that because she lacked these policies she wouldn't know whether there was a concern or not i mean which one is it i mean it seems to me that in where i have a hard time seeing how the if she knew she could that any moment why that would have been not a not well it and let me just wrap up the i think that on summary judgment we're entitled to our claims against both people because where there are issues of fact i it this way too that a jury could conclude that by not treating deputies or in this case a nurse proper observation to know when to report to medical staff the supervisor made a constitutional violation a highly predictable consequence that's what happened here because they were given this carte blanche instruction cohen every want but they didn't have any idea when to call as evidenced by the record because inmate had been complaining of puking for over four days straight runs diarrhea can't hold anything down not even water that you were to immediately call p a logan or somebody from dr perhaps office answer if i had been aware made aware of the situation that would have been what i have done yes question would you have done that because you were taught to do that or because it was made common sense to you both nurse clyde had been taught that she should contact the physician the circumstances now plaintiff is arguing both that it is so obvious but also that we need to provide training on these issues dr tubbs could rely upon this  tailored and on the specific facts of the case you can see that in lock it also in richardson and in full r c they both take into account specific situations that are that are encountered in those tubbs is an individual contract a doctor he unlike jensen and the lane he has no control over the pop the hospital policies or admitting or discharge he is not contracted to do  to establish policies and procedures or to train any of the jail steps he is in fact a physician that is there once a week he is available two hundred and forty seven he abided by thank you very much