mr flowers complain basically it is it i mean why don't we happily says you should be allowed to amend your complaint correct if not actually clear what the nature of the confession is an apple let's assume that they're conceding that because if they're not conceding that i'm going to have a difficult time with them but seem to be conceding that you should be allowed to amend your complaint why do we have to decide now whe guess i ask my question again i understand your position we send it back to the court with instructions that you'll be allowed to amend your complaint i don't know that the state will move to dismiss that complaint the state may say yes it does state a claim what's move a separate concern with the trial judge and those things we can get to them later but in a normal course of events i would sink if you weren't fighting about who the trial judge was we would we just have a stipulated judgment here and you go back and amend your complaint and we'd see what happened complaints are not drafted with the steel in artistry one would expect from counsel stated a claim under the eighth amendment and remanded for proceedings appropriate with that the second such cases akbari be made which we discussed extensively in our brief remarks you may discuss it in your brief but i don't alleged that his medical chrono which is a file containing information about his medical record stated that he had to be given a grounds for bunk he alleged that he had shown this cron o to prison officials so they knew of it he alleges they ignored it and yes your honor while recognizing that remand is reserved by this court for unusual circumstances we submit that the two circumstances identified in our brief provide a sufficient basis for this court to at least consider remaining to a different judge well but really the judge didn't really have a chance to do much of anything yet there's not it's not the the judge didn't really i didn't you know i don't doesn't appear showed any anim client i mean obviously he was a pro se at the time and it can be difficult you know getting the facts out at that particular time but this just doesn't seem to smack of that here i mean are you going by this  reputation or something your honor the first i would say this is an issue that my client feels very strongly about and so we're pursuing it because he feels he can not get the justice he wants from this particular judge the second point i would say is well but  that may often occur and that's why we that's why we're here so the question is why how does this meet our standards for remand to a different judge our standards require some sort of showing other than the judge made a bad rule otherwise we'd be changing judges every time we reverse their certainly no bright line rule thing that procedural error of this nature demands that it be reassigned as far as i know there are no bright line rules in this area period it's all on a case by case basis the strongest argument i think we have is on remand in less townsell is appointed for mr flowers hill again be proceeding pro sleigh his future pleadings will be his own as were the initial pleadings in the district court in this case on remand is going to be for the judge if mr flowers is proceeding pro se to distinguish between cogent allegations that he makes such as the eighth amendment claim in the original complaint and allegations that are unfortunately shadowed by his medical condition  while i do not oppose arema and i do believe it would be fair for the court to make a determination that a claim is been made why we have a complaint twelve b six we on the face of the complaint the district judge said on the face of the complaint there's no claim he may have been right it may be wrong you're perfectly happy to let it be amended to fix it i understand that but why couldn't we say no the judge was wrong this test  states perfectly happy to have them amended to make it better on remand and we were we we appreciate the state's position on that and the district court should do it but we just read the face the complaint that's all we do why doesn't like it we find that  e i'm saying that the complaint itself as it currently stands does not fulfil the by party objective and subjective types of liability objectively there must be a showing that there  the minimal standards of decency as that term is defined by an evolving society have not been met or in another subjectively there is a state of mind a requirement and that is that the defendants were not only aware of a risk but they entertained that notion and acted upon it anyway with the knowledge that there was a risk when we take the entirety of the complaint as it is stated and give every due inference and projection to the plaintive you do not have a fulfillment of the subjective element we have complaints that there was not knowledge that certain things were done in terms of the treatment in terms of  but we do not know why any many facts nor are they alleged in the complaint for example when did the treatment start how long was it very important did the defendants know or not know about the unique concerns that the manufacturer had about zyprexa and furthermore whether or not my clients recognized a serious risk of harm and proceeded to give this medication to mr flowers nonetheless without those elements being properly argued we would suggest an argue to this court there is not a claim under the and for that reason because there is not deliberate indifference while we do concede and i do so painfully because have yet to meet or an attorney more competitive than i am i do remind myself that i am an advocate second and serve the court first and i truly and honestly could not advocate or provide an argument in this case with zero facts in the record nonetheless i would bet i'm not quite you use the word recused in the beginning i don't really quite understand that i was kind of looking at it from an approach of a judicial determination would come up again i looked at that carefully and terms of the interests of my client i found several that were present for that would allow me to challenge that appointment first when i looked at the informal brief that was filed by the appellant rather than a misspelling of the word interference and grammar and syntax problems he actually articulated the claims quite well set forth  appointment of counsel but why why in this case wouldn't this case we have a we have an inmate who claims that he has been mentally affected by the administration of psychotropic drugs as i understand it it's more think hard to argue i am duty bound to advocate motions that are taken in good faith for my client but what about the extraordinary circumstances here do you think that extraordinary circumstances is a close call because i don't have a record upon which i can determine the degree to which mr flowers has emotional difficulties all i had well now but it's but you know basically when you're looking at if you don't send it back to the same judge the judge made a mistake you've conceded that it needs to go here they need to be allowed to amend under the law right so the judge made a mistake is there anything else in the record that you see or you know that i mean generally we're looking sometimes you know i mean a judge could say something like no i'm not going to allow you leave to amend and don't ever show your face again in my court or it's going to be a doomsday for you you know if we looked at something like that would probably think well he's when we grant leave to always say the judge got it wrong we're probably thinking it might not get a fair a person might not get a fair shake what about this record terms of the record and in terms of sending it to judge jones and this is the second time within a year i've been asked by the ninth circuit to guess as to the mindset of judge jones do you have you there developed some expertise on a course i suspect it's going to occur that one decided to rule under one hundred fifteen a and not grant a what was there in the record i mean and it sounds like in the other there are factual instances what is in the record here from your perspective you know and the law in exceptional circumstances is there anything there that would indicate that this defendant that there would be animists or could not get a fair shake going back in terms of extraordinary circumstances from the point of view of the jurist i don't see any i don't know what about the dismissal of the hey b s petition which probably wasn't appropriate avi's petition but that's a separate issue because file pro se and he says that he said i don't believe anything in this or some words t effect isn't the same subject matter isn't that in fairness to the judge he also said that he thought that because the federal probe process public defender was also involved the local rules prevented him from advocating his case as long as  had counsel record and that probably wasn't correct either but i think that he focused primarily on that you're asking me to explain some difficult matters again all i can say is in terms of your question judge callahan extraordinary circumstances i'm not sure all i have is a pretty well written appellants informal brief and a not so well written complaint for damages but when i look at the standard about whether this is an individual who has demonstrated that he can articulate and understand his claims i had no problems in opposing this i will also share with you i have no problems if you decide he should have an attorney so i explain to my esteemed colleagues and honorable opponents i think them for their willingness to serve in the pro bono area my job is actually quite easier when we have an attorney on the other side we don't have the handwritten stuff we have understandable arguments so it's not per se wanting to try to pick i think way i think wave but you know not find the spot ok i had an appearance this morning before the court in san francisco which is why you granted me a second on the calendar i'm required by this court's precedent as to the subject of prong so it is alleged in the complaint the second point i'd like to make is the argument presented here about the record which we also saw in the answering brief the argument he presented here but why is this notion that there was no record below he could have easily presented in the answering brief the very argument you just presented that the complaint fails to state a claim because it's allegations don't meet the circuit pleading requirements that's precisely what he did not do in the brief and as the authority cited in our reply brief shows any and brief theory presented at oral argument is deemed waived the third point i'd like to make is about appointment which is also discussed here there's two sub points here first mr flowers motions make clear that he was helped by jailhouse lawyers in presenting the pleadings as cogently as he did in the district court as indicated in our answer in our opening brief independency of this appeal mr powers was transferred from prison into vada to prison in arizona where he now resides there's nothing in the nevada or arizona nonetheless i would say any cogency that is read in that while pleaded claims that mr fire is presented before the district court should not be held against him in terms of appointment and the final point i'd like to make is as to reassign do either do you have any information and if we'd send it back without directing a different district judge whether this district judge will automatically get the case i would i would assume so under the standard and i don't know why he wouldn't ok i'm asked if you had