focus in particular on why mr rich shows intitled to a trial against defendants mass and garlic subject any questions from the court we would stand in our briefs that the remaining defendants to begin with the district court made two fundamental legal errors in granting summary judgment neither of which the defendants make much effort to defend on appeal first the court below reason that the extraordinary efforts made by dr jose mathews beginning nearly two years after mr shows transfer out of the specialized mental health unit and into the north segregation unit could somehow cure the constitutional violation in its entirety and second the court below thought that the physical injury provision of the prison litigation reform act could bar mystery shows claims altogether rather than defend the district court's reasoning defendants raise a host of factual disputes as you can tell from the briefs the two sides of very different versions of the nature and extent of mystery shows mental illness why he was transferred to the north segregation unit and the effect of that transfer on his mental health well there was that one answer those mutilations months after his transfer in juvenile seven what other evidence is there in the record that suggests that his deteriorated after he was transferred to shore so there's his own sworn testimony in terms of physical injury that his self mutilation in fact escalated after he was transferred but but even more fundamentally your honor dr silverberg our expert at most of the quantum of damages that wasn't a summary judgment it was the real thing that made a difference in terms of his condition the involvement of d mathews that when dr matthews comes on the scene it seems like he does much better when he's not there mr rush it does much worse and if that's the case how would dr ma that the care was going to be inadequate in other words there's this assumption that transferring mr rash is going to result in a lower level and care but it seems like it's not the transfer it's the specific person who's available and it doctor matthews had been on the scene the whole time perhaps there would be no change at all and he would have done well from the get go it's a combination of two things your honor because the physical conditions that he was placed into are indeed very important and did indeed infect his mental health and so you have to look at both the combination of physical conditions and the access to care and quality of care both of those are relevant dimensions and at the time of this transfer there simply realize that the care would be different certainly dr massey a juror a reasonable jury picks include the doctor massa did indeed know that because of the horrendous conditions and the lack of access to care in our segregation as dr silver testified no a competent mental health professional would have done what he did to mr isha and so this is just yet another factual dispute the sole person who would prove that circumstantially because there was nothing that came out in the deposition testimony that he knew quality of care that's largely correct your honor and certainly the subjective delivered a different standard can be proved by circumstantial evidence but the other thing that i want to go with your argument was that because he has said he's suing us too much that he and you know intended bad things to happen to rochelle that's absolutely rushed him for years for his that's absolutely right your honor and as i was about to get to under spawn's to judge williams question there's much more than our own experts testimony there's there's a number of things that a jury could look at inferring culpable state of mind here that's certainly one of them mr rich shows on sworn testimony that he was retaliated against in response to his resort to the image grievance process but another thing the jury could look at is the mismatch between the proffered reasons for the transfer and their actual prescription history as dr silver wrote testified it just untreatable he's a bad guy he's not really sick but yet the same time they are prescribing him these medications that are only appropriate when somebody is indeed very sick and needs treatment and the final point that i think is also relevant is that it's jury could look at the post transfer conduct of these two defendants as well and in particular the testimony is that after the transfer dr matthews explain that dr massey came to me after this lawsuit was filed and said well can you change your diagnosis of bipolar because point out that well dr mathews did in fact revoke the diagnosis of bipolar but what they neglect to mention is that he replaced it with a different a axis one diagnosis which was schizo affective disorder so that doesn't really help them dr mackey certainly didn't conclude that m things about that first of all a placement review board decision from the following day said that a request for transfer came from mr michel himself and that it was made against the recommendations of your treating psychiatrist so it's not at all clear whether she followed through with could that would only be appropriate for somebody with a serious act as one mental illness just another couple things about the physical injury requirement that we've heard a lot certainly in the briefs from the other side about how well he didn't really do so poorly in north segregation because well there's only this one instance of self mutilation documented in the record and as i mentioned and most of this is a fight about the quantum of damages that isn't appropriate to bar the case altogether but what's more it's sort of remarkable that the state says oh well he self reported that mutilation he wrote an affidavit that said you know i cut myself today i was feeling really depressed and i want to go and crisis watch but a jury could think about that and say well what if he had not reported it and it just goes to show that sort of nobody was paying attention to people in these horrible conditions and nor segregation had he not bothered to write that down and report it in may well have gone unreported and this is another reason why his own sworn testimony that his self mutilation in fact escalated after his transfer may well be believed even if there's not a ton of sort of extraneous medical records in the record to support that how will the outcome of this case relief seeking to reform the practices of the illinois department of corrections going forward and this case by contrast seeks only individual redress for the past harm suffered by mr a show and that's why to be clear judgment had both of these cases before him and he said look this is an individual damages action i'm going to sever it off and break it off and treat it completely separately and one other point about that and that's that this court at this time wouldn't be making any findings or or judging any of these claims on the merits ultimately and so to the extent it goes back to judgment for trial so that the center is concerned about judge men having both cases in front of them would be perfectly capable in his discretion up of managing the cases to avoid any kind of thousand and six and based on that very first visit he recommended that mr rachelle be transferred off the mental health unit the reason he gave for that he said but based on his diagnosis his symptoms and his personal observation he did not believe that dr rasho would benefit from staying on the mental health unit he still continued to prescribe medication the right he did he took him off of a trouser don't which is a sleep medication but left him with the i believe it's the g o g o con or something but yes he was he was kept on medication as are many other prisoners throughout this maximum security facility medication for any social personality understanding a rational contends that dr massa's explanation was pure pretext he says that no no no no he wasn't true recommending a transfer out of the mental health unit because of his diagnosis or symptoms  his observations no he was doing it because he was sick and tired of all these grievances lawsuits he was fed up he's going to retaliate he's going to teach this guy a lesson he's going to show him what happens when you file grievances like this well keep in mind this is the first time he'd ever seen them and he'd only been working there for two months less than two months and somehow he is fed up with the rich with grievances we don't even have anything in the record show filed against dr massa so right off the bat i have to question that this is a very unusual case now the same day that dr rational saw him for the very first time in mr a show saw d smith and he told dr smith i want off of the mental health unit and if you don't give me what i want i'm going to retaliate he says i'm going to start disrupting this unit and then he gave me a deadline he said you'll have to june to get that not responded to her doc called upon to respond to any grievances that he's never been sued he's only been there for less than two months how is it that he built up this rage that he would want to retaliate against this individual now the on medical science the that it was not a matter of retaliation that the retaliation claim itself is a pretext that he couldn't have generated the rage and and the intent to his recommendation cannot be viewed in a vacuum this was a just a committee decision to transfer him off the unit i think it's important to know though that he made his recommendation on the very first visit and he wasn't transferred immediately was transferred another over a year later now that rational must come forward with some evidence that dr massa knew that the trance that his recommendation would result in mr  mental health unit is when dr matthews first saw him we described to you what he saw what he saw after twenty one months in the north segregation unit dr matthews reported that rasho appeared to be doing well he had no thoughts were organized his insight and judgment were fair he had not had any so for middle eastern incidents in over a year in contrast to his time in the mental health unit he never once attempted futile ation during the two and a half year period that dr matthews treated him now the only person to ever recommended that mr show be transferred back to the mental health that was dr matthews and he made that recommendation after mr matthews had been returned from statesville in other words he treated him for all those years and never once said this guy's got to go back to the mental health unit it was only in two thousand and twelve after the return from statesville that we finally have one professional medical treat or stating that this guy should go back to the mental health unit dr messer was already gone off no play to sexpert stated that he had absolutely no complaint with dr matthews treatment then why is it that after two and a half years of treatment dr matthews never recommended that he be transferred back they have no complaint about that they only complain morning and made please the court counsel i'm assistant attorney general and siegel on behalf of the state defendants in there's an overarching point that i want to make to the court this morning and that is this the department of corrections provides constitutionally adequate treatment wherever inmates are housed and contact the particular labels for whether we're talking about the mental health unit or the north segregation that they don't matter but that's essentially mr rush's claim it's labels over substance he received however sufficient mental health care when he was assigned to the mental health unit and when he was in the north segregation unit in both places the department provided three critical treatment services first psychotropic pain medication wherever he was and yes he was medicated in both places for his variety of conditions secondly crisis intervention and third psychological counseling via individual therapy and the record shows a doctor rather that mr osho received those treatments in the north segregation unit were dr garlock transferred him just as he did in the mental health unit that means that the department of law is the reason for a transfer i mean there were three reasons your honor for the transfer and they're all based on medical judgment not administrators convenience first after two and a half years in the mental health unit you should know shit signs of improvement he was hostile he did not take into account other people's feelings he was not considerate he was good enough to spit in group therapy leading to the two other reasons which were he was a danger to other inmates who had serious mental health issues in that treatment facility  common or it may be acute and limited to a number of different but but being uncooperative and manipulative can be a simpson mental illness it can be and there is no disputed issue of material antisocial personality disorder i think that counsel has tried his reply brief in an argument this morning to suggest that there is some kind of material distinction between access one illness under the d s m and access to but i'm not aware that there's a hierarchy that one is more serious than the other he had said he had serious mental conditions and he was not benefiting from his placement there he was intruding with the treatment of other inmates and he was a threat and harm to the other staff there he assaulted a nurse on one occasion more than one occasion he got into disputes with the treating staff there so the only significant differences between the mental health unit and the north segregation are three group therapy was offered in mental health in the continuity of care with the same therapist and the noise level was higher in second or segregation but  two of these really dropped out russia never really participated in group therapy and importantly the noise that we hear about the toxic conditions there's no evidence in the record that there's any causation or any relation to a spike  symptoms that is demonstrated so what this case really boils so the continuum of care he wasn't getting the consistent care that that is what this case boils down to a constant you a constant you ity of care the record shows that in the mental health unit he elected to or participated in therapy with a with individual therapist about once every month in the north question george williams this or this case boils down to whether he's being guaranteed psychological counseling with his preferred counselor on his desire schedule and this relates to the question that you asked earlier judge wood what do you sensually is a return to the state of our counseling that he experience for so we are with documented wasn't there some evidence in the record that perhaps it was from this rashes expert that some of the problems with caring for him in segregation was that it was difficult for him to meet one on one with dr mathews if there wasn't private space they had to do it in the so that the conditions were not just noisy at this location but that prisoners were factors would not make it much more difficult to continue with treatment of somebody who has a serious mental illness well the treatment with dr matthews did continue successfully it was actually one treatment and russia wants to return to that so they overcame some of those impediments there were meetings i think in a conference room or in a private space when when available but it's not a dispute there's no eighth amendment violation as a result of these difficulties or you know less than ideal conditions the eighth amendment doesn't guarantee state of the our treatment that's just you know touchstone law in the eighth amendment only once adequate treatment and psychological care itself not placement in a particular place of meeting in a particular place and certainly not assignment to the mental health unit this is the constitutional requirement and that's the true for even some of the serious chronic condition like to maintenance is the of the constitutional duty and that's the care that he received wherever he was and that is that's key because dr garlics role in the decision to make the transfer what was did not trigger any sort of deterioration during the critical period of about twenty months as my colleague referred to when he was in the north segregation unit judge williams us to think about the one cutting incident that's that and that's all the medical evidence there is richard does say that his condition deteriorated but what dr silverberg says is the result of this transfer into the north segregation unit is that he suffered humiliation russia would cut again and this case this court has held in numerous cases involving mentally ill prisoners or inmates that there's no duty to act and therefore no deliberate indifference unless the self harm is imminent unless we're on the verge of that we're not on the verge of anything imminent here let alone cutting so we would ask the court to affirm the district court's credit summary mr shows entitled the state of the art treatment it's only that he's entitled to the minimum treatment minimally adequate treatment required by the eighth amendment and so he relies heavily for instance on saying that dr silverberg couldn't say with one hundred percent certainty when mr rasho would cut himself but what he did say is that putting him in these toxic horrendous environment like the north segregation and as to what pointed out is going to impact his mental health is going to increase the risk of him harming himself and that risk is actionable under the at the moment and under the the long line of cases explaining that a substantial risk of harm is the key not that it in fact manifest necessarily an objective least severe way although we think it did here but the other thing that i want to mention about that too is that they fail basically to address the fact that psychological torture is itself actionable harm under the amendment and so again what they're one that responds to clinical treatment it's one that is treatable in other words and access to by contrast are these things like personality disorders which basically this person has ingrained character flaws and those aren't sort of treated acutely by medication in the way that an axis one illness is so it's not a hierarchy exactly but they're very different in terms of the kinds of treatment well what about mr owner's point you said there were no there were no  against he couldn't have been retaliate because you know only been there a short period of time and i think a number of those things in fact cut against him to be was just as a legal proposition i've never i don't think there's any indication in this court's retaliation law that you can only retaliate if the grievances are directed at you another suggestion is the plausibility of his having retaliated if there were no long documented history of serious mental illness even before he got to pontiac in two thousand and three so the idea that he took one look at him the first time he saw him and said this guy can't be on the mental health unit jury says well how do you know that the you know he's been treated for years he's been in the mental health unit immediately he made a snap decision that this man needed to go and then he followed up on that decision every time he saw him again he said no you have to leave the mental health you know you have to leave the mental health unit i think a jury looking at that would say well how do you know with such reasonable jury fifteen can conclude that and that was from not only his substantial medical records but also from his own conduct and how we prescribe medications for asia but is there any evidence  quick thing about that the district court looked at that and said well that evidence isn't good enough because he happened to use the word basically when he practiced an answer and i just want to give a little bit of context about that he was asked point blank at his deposition by posing counsel below you know why you were transferred out of the mental health unit in the first place he said because i filed too many grievances against pontiacs that and then they they he was asked who told you that he said dr mass and dr garlic and so then his answer was basically heard this in two separate occasions from both of them dr massey at the time he was being kicked out in november two thousand and six told that to him and dr garlock told it to him when he was blocking dr mackey's recommendation in two thousand and twelve that he be returned to the mental health unit and