good morning your honour's may it please the court in may of two thousand and seven mr king went for a first time dental screening despite his protests the dental staff performed a painful operation on him that was intended for another patient afterwards the dental staff tried to convince mr king that is pain was from a problem with another tooth and refused to provide him with adequate treatment the district court erred and so a sponsor dismissing mr king's pro s complaint for two reasons first the court erred in dismissing mr king's complaint for a failure to exhaust his available administrative remedies based on the information mr king provided a court could not su administrative remedies were available additionally the court did not provide mr kane with notice and an opportunity to respond to the court's conclusions before dismissal second the court erred in dismissing mr king's complaint for fair to say to claim for each of his deliberate indifference claims mr king sufficiently allows the dental staff refused to verify facts that would lead them to conclude that they were operating on the wrong patient mr kane also sufficiently alleged that he was provided with grossly inadequate treatment when the dental staff only provided him with pain medication and set of performing a root canal which is the standard of care for an exposed nerve ok how do we know that a root canal is the standard of care you said that one was ultimately performed on him when he was transferred to the different facility but where is there evidence in the record that that was the standard of care we have a profit in our brief statements from the a t a i on the appropriate standard of care for an exposed nerve which is a root canal  did not specifically state that in his complaint but he is a pro sake plaintiff and giving him reasonable inferences the root canal is a standard of care and the fact that he ultimately received one is good evidence that he sufficiently alleged a claim for delivering difference for grossly inadequate treatment but the difficulty that you have and i think the difficulty of the judge berger perceived is simply the  standard of the the burden of proof which is his war of deliberate indifference and what you seem to have here is a classic case of negligence that there was a mistake made mix was a confusion of two inmates who had the same last name and that's that's classic negligence is never mean we've all been we've all seen a thousand negligence cases in our lifetimes and if it if it walks like a duck and quacks like a bark and sometimes it really is a alleged deliberate indifference the this court and the supreme court in a footnote has stated that a prison official may not escape liability for deliberate indifference if he merely refuses to verify underlying facts that he strongly suspects to be true and mr king protested that he was only there for a dental screening and instead of stopping what he was doing the dentist proceeded to drill his tooth but there's more than just the protests  king told the dentist mr king the dental staff also failed to verify other information that would have alerted them that they were operating on the wrong patient mr king was never asked if he was experiencing any pain he was never and there was a i mean it was unfortunate but the burden of proof that you have is a big difference between nine of his complaint but on top of that it pro se if you look at the substance of his complaint he has alleged a claim for deliberate indifference for operating on the wrong patient the dental staff had numerous opportunities to stop what they were doing and confirm that they were operating on the correct mr king mr king never alleged that the dental step knew they were operating on the wrong patient i mean that would establish deliberate difference  seems to me they knew that they were they just did it anyway they want to drill this guy but his failure to allege that they knew that they were doing this doesn't make a difference  no your honor not in this case because mr king alleged that and three times that he told them he was there for a dental screening when he was in the chair when they were approaching him with a needle he asked the dentist what that was for the dentist ignored that and proceeded to drill in the even after he was numbed he said he was there for first time dental screening that presents evidence that this dentist knew he was operating on the wrong patient or in the alternative that he failed to verify facts that he if that was all that mr king alleged maybe we would be in a different situation here but he didn't allege he didn't just allege that well there were two mr kings then they operated on me instead of the other mr king mr king  three times to inform that he was only there for a dental screening and on top of that mr king also alleged that they took an x ray of his mouth than any dentist should have reviewed that x ray and realized oh wait a minute this is not a person who needs to have his t if that's not indifference what absence that's your argument in a factual yes absolutely judge gregory and i'll add that that this court has said that deliberate a difference can be established if it is so obvious and in this case to a dentist it should have been obvious looking in his mouth as to who's not decay and again looking at the x rays that were taken that that this is not a person who needs to have his his tooth drilled  a classic no not at all your honor it's not hindsight when when a patient is sitting in the chair saying i'm not here to be drilled and it's not hindsight is judge gregory said when you or mr mr king also sufficiently alleged a second deliberate indifference claim which was from grossly inadequate treatment and contrary to what the defendants and the lower court  articulated and as this court articulated simply in a case that was decided earlier this year and i'm sorry i'll miss pronounce the name but the lone tovey johnson it was decided in two thousand and thirteen or early two thousand and thirteen just because  crude liberal indifference i disagree your honor again just because he was provided with some treatment doesn't mean it was constitutionally adequate any competent dentists would have known that the treatment the standard of care for exposed nerve is a root stream case mean this is a case where this man they operated on the wrong patient and then they ignored his complaints for six months they didn't give him a root canal they treated him with may pain medication which didn't alleviate his symptoms you agree he was evalu good morning your honor sir i may it please the court john gentle assistant u s attorney for the southern district of west virginia before i begin i'd like to point out the government does not represent dr aikman so nothing that i say should prejudice him prejudiced him in any way  first of all it is our view that mr king has waived his rights for to nova appeal against all defendants except for dr aikman and a jane doe dental assistant that wasn't actually named in the complaint  we think that his failure to address that and his objections waived that regardless we're prepared to talk about the merits i'm sorry well our waiver argument is that he did not address any defendants except for dr aikman and he mentions a jane doe dental assistant in his objections those are the only defendants that he mentions in his objections he points out in the beginning of his objections that he previously asserted claims against multiple defendants he then goes on to say that he reasserts claims against just dr aikman and he mentions a jane doe dental assistant but he did not actually name a jane doe dental assistant in the complaint so our view is that that's that's waived however if the court does not view that this waived first i'd like to address the matter of exhaustion then i'd like to address the matter of deliberate indifference we feel that mr king did not address administrative remedies and under that at least under that theory the corps right to dismiss his claim second it was also right because as i believe judge wilkinson you point out i think what we're talking about at best is medical malpractise we've heard a lot about julie in the wrong tooth we've heard a lot about what the care should have been those are the facts and i don't dispute those facts i'm not we heard about some rumor those are the facts no no no your honor those those are the facts as as mr king pled i'm not disputing this facts but those are general factors that tend to point towards negligence or malpractise but they don't necessarily point to deliberate indifference i believe mr king would have had to have pled that aikman knew or should have known that that he was the wrong person that there was a they you know a high risk that he was the wrong person that that's correct your honor and but no because  aikman could determine i don't even know if it's possible for a dentist to determine by pure vision whether a tooth needs drilling or not but those facts they certainly sound at least to me and if they don't you i i not telling you how they sound but that sounds like a diagnosis is whether this tooth needs drilled in fact i mean mr king admits or at least pleads that the dental staff believed that the next to throw over was decayed and so it wouldn't be the case that if he this is the case before us but presume that they had drilled the the cane too thin stead of the healthy tooth that doesn't come to deliver a difference  well i mean first just just to discuss the pleading it to plead a deliberate indifference you would in that situation you would have to plead at least that the doctor knew that he was operating the wrong leg or that he knew there was a substantial risk that would have to be part of the that that's all he pled but i think under under farmer v brennan he has to establish that the defendant knows and disregards an excessive risk to inmate health and safety but he didn't plead that in this matter he much are ther again i'm not a doctor this goes to the pleading stage so i'm willing to accept a hypothetical that doesn't involve teeth i think though what has to happen is mr king had to plead that dr  i mean it is more than he should have known he had to have known that he had the wrong person he had to have known that there was an excessive risk he had the wrong person and that's just it's not in the pleading fact he told well i don't i don't forgive me  i did not see that in the record i think if you look at paragraph twelve of the complaint you'll see that even the inmate admitted that he was unaware at the beginning that they had mis identified him i believe that he asked what the needle was for he may have questioned why he was being drilled but and i'm not saying it's not in there but i couldn't find in the record where he actually pled that he told them he was the wrong person only that it was the same no no i'm saying what's in the record is that he didn't between those two statements between the wrong person and i'm just here for a cleaning is and even though they sound like they're very late phrases one is innate knowledge that you know yourself is the prisoner knows who he is but he doesn't necessarily know why he's there especially since he's admitted this is his first time to the dentist and i'm not going to speculate as to dr aiken's practice but it would not surprise me to find that prisoners often may dispute the course of treatment or they may often not not care to be drilled so i don't i think there is a difference between saying i'm a different person which i cannot find in the record and between saying i'm not here to be drilled it it i know that opposing counsel has as put that in there briefing but i i could not find it in fact i believe as i mentioned before paragraph twelve of the complaint seems to at least imply that he was unaware until after the drilling that they had mistaken him for of treatment afterwards i believe is your honor's point out they saw him i believe is eight times over approximately six months there were four x rays he was given pain medicine for four pain is given antibiotics for potential infection ultimately i believe they offered to pull as tooth those even if we can see those were the incorrect course of treatment that's not indifferent it's just it's just wrong even if we can see that they're wrong it's not indifferent it may not be the course honor i mean he make he makes two separate claims the first is that they drilled the incorrect tooth the second is that afterwards they then treated their own mistake incorrectly i think the second one it least in my mind is a little bit clear because he did receive multiple treatment he did receive pain medication he did receive antibiotics even if it were wrong i it does not appear to rise the level of in difference it does not shock the conscience i think is one of the correct and i'd like to briefly go back to exhaustion i think i think there are two two reasons why the claim was dismissed the first was that mr king failed to exhaust his claims i think i think it's pretty clear from  paragraph i believe twenty eight his complaint he admits on the face that he did not exhaust his administrative remedies i think it's some point that should shift the onus on to him to show that he did exhaust his administrative remedies and when he failed to do that they dismissed the circumstances under it under the b p nine and the b p ten that those were delayed but he never actually claimed that he filed the b p eleven except in his brief he mentioned that is a necessary form to exhaust your m sorry exhaustion in general or in this particular matter well in this particular matter this would give this would obviously give the prison a chance to address at least partially i know that he's asking for monetary work but this would at least give the prison a chance to address the issues it would give them a chance to address any issues they may have with dr aikman i mean just the general principles of exhausting your administrative remedies do don't know i'm hesitant to speculate but but they they would it might or standing as they would they would provide a ruling or at least the reason why they were denying or what type of relief they were granting king i'm not sure about the total extent that they're allowed to award but in this case they they could address the situation i do don't think they're a lot to dispense money i know he's seeking a monetary award but they could address the situation administratively they could  honor i don't know what new information he could have provided on it want to b p eleven except to explain his delay in filing his earlier form so i did but i do know that exhaustion is exposing explicit that it has to be  filed that it has to be brought to the general counsel's attention i think i believe does have to be done by b p eleven believe it's twenty eight c f r five forty two fifteen yes your honor there were two grounds the first was failure to exhaust and second was  actions by prison officials made it more difficult for him to do so in the most in a timely manner and i will say your honor i know that it wasn't his complaint as he is not required to allege exhaustion in his complaint or specific facts related to exhaustion his complaint to him by the prison officials and all state with the regulation associated with the well first of all mr king did not receive the warrant response to the b p nine form until twenty one days after it was dated so there's a twenty one day delay in the delivery of that response and the regulation that the that the district court and the government rely upon to say that he should have filed his b p ten form earlier states if an inmate does not receive a response within the allotted time for the reply of the b p nine form including extension in an inmate may consider the absence of response to be in a denial at that level the language in the regulation is may consider not must consider it's mr king was seeking to i mean there in terms of drilling on the wrong patient that had happened that you know he repeated requests monetary damages for that which the prison could not award him in terms of the inadequate treatment they could have reviewed those and  asked that he be provided with adequate treatment although that would be they would be talking to the doctors but but the bigger point is that he even he proceeded through the process here he didn't stop because he had a few hurdles there were thrown up in front of him from prison officials he completed through the process and completed it they didn't things i want to say it was in the record with regards to mr mr king not alleging when he tried to inform him in paragraph twenty eight of the complaint mr king says the actions of the of the defendants for not ensuring proper care safety identity of the plaintiff before performing dental treatment of a filling on a t filling injecting the player with novacaine using physical force against the plaintiff when he tried to inform them that he was only there for a first time examination the defendant's without need or provocation perform the surgery on it and then he also adds that it was done maliciously and here i disagree your honor first of all it's not so simple as that i mean it wasn't just two people showing up on the same day it was they showed up on the wrong day he may protest i'm not the right guy i'm only here for a dental screening and as judge gregory has pointed out looking at his tooth he alleged it was a healthy tooth and he alleged that they drilled on his healthy tooth that constitutes deliberate indifference and i'll just add really quickly for the and adequate treatment if the court looks at the dylan toe case it's very similar to mr king's they particularly have a good quote on their own on page five twenty six that basically states that just because and i won't read it but but just because  provide some treatment doesn't mean that it's constitutionally adequate and giving somebody pain medication when surgery is necessary constitutes or can constitute deliberate indifference and that's mr king's situation here i think your honor for your time