may please the court david ramer propellent george walker your honour's from the moment dr basic st examined mr walker he knew he was dealing with some quote pretty serious conditions that were beyond his powers to treat or diagnose it despite that recognition over the course of the next three and a half years he subjected mr walker to a persistent pattern of delay and inaction despite referrals from mr walker's u i c neurologist it took thirteen months and multiple additional requests to get eyes it took over a year to get to the pain clinic and most egregiously it took sixteen months and for referrals before mr walker was sent to marrow surgery an appointment that ultimately led to a nd back surgery he was deemed to require basi offered no medical explanation for these delays wexford had no policy in place to prevent them accordingly a reasonable jury could conclude that a prolonged it exacerbated mr walker's pain by postponing treatment he was deemed to require precluded alternate treatment options in the interim and ultimately delayed the treatment and diagnosis of mr walker's p o s under this court's precedent that's more than enough evidence to survive summary judgment i assume you agree th coming to state so dr basically is absolutely not responsible for what happened before he came so state bill wexford obviously can't be doctor basically isn't but those delays that i listed out there at the beginning those all came from a september t indifference claim here are you claiming that the failure to have the follow up with you i see after the initial surgery cost current condition or caused pain and suffering what exactly is for the surgery but also this nd set of delays and an action that stem from the september th two thousand and thirteen appointments because i understand the front part what's the causation so assume you're right he failed to the record that indicates that that's just not the case if you go to footnote ten page forty of the opening grief there's a list of citations in the record from mr walker's expert from defendant's expert that simply says that look some of what mr walker had here was so you're not saying that the actions that you claim were deliberately and different you're not saying that those caused his p l s you're saying they caused other health issues i'm i'm trying to flesh out he also had a spinal condition that was causing him pain and suffering that pain and suffering was ultimately relieved by the nd back surgery that nd back surgery was delayed because of mr walker dr o b i sees delays in sending him to arise to the pain clinic to neurosurgery and was also attributable to experts policy of failing to have a system in place to ensure that outside treatment actually took place so there's evidence in the record that you can't just write this all pos actually there are other conditions here that were causing mr walker pain and suffering and that pain and suffering was prolonged by dr bases failures and by wexford failures so that's the a policy in place at that point in time to ensure that authorized outside treatments actually took place a reasonable jury can conclude that that exhibited deliberate indifference to a serious medical need this court held  question that the failure to have a policy in the face of obvious risks can itself constitute deliberate indifference and the that case be strikingly similar to this case in glisten you didn't have to be an expert to recognize the need for comprehensive coordinated care to care for inmates with chronic pain likewise in this case you don't need to be an expert to recognize the need to ensure that authorised outside treatment actually takes place in a timely fashion if you don't it's entirely forseeable that that treatment will be delayed in an individual's condition and suffering will be prolonged that's exactly what's happened here and with and this court said that's what you need to state a deliberate indifference claim against a prison medical provider so under that doctoral basi or state bill should have been responsible or that they were responsible for the delays and scheduling you know i see how can you put scheduling of medical procedures at a busy medical facility how can you put the responsibility for that on somebody on the outside you have to separate their ease and know your other one is they should have had some type job description and j one hundred and seventeen i believe he says he admits that part of his job description was making arrangements with outside specialists he then testified that other points in time he would regularly checked patient's medical records if he saw that appointment hadn't taken place he would follow up there's no indication that he did so in this case dr basi was literally watching a man loses ability to walk talk and use his hands in front of him if he was content to wait over sixteen months to send him shots for his pain seeing him repeatedly referring him to a different specialist for immediate attention when he was concerned giving him pain medications mr walker didn't take doesn't excuse the deliberate deliberate indifference violation likewise giving someone pain medication when you could address the underlying issues via surgery also doesn't excuse the deliberate indifference violation and it's true that mr walker did not take some of those pain medications but there's plenty of evidence in the record at but not for the reply brief that indicates that he was in pain during this time and the reason he didn't take some of those pain medications is because they caused constipation mr walker certainly should be put to the choice of taking pain medications or constipation when there are alternate treatment options on the table and alternate treatment options that as it turned out actually relieved aspects of mr walker's pain i thought to back up to exhaustion argument  the form that was returned to him after he filed the emergent c grievance in two thousand and thirteen complaining about the failure to follow through on  absolutely correct because this court recognizing thorton and subsequent unpublished decisions and a raft of district court precedent that basically says illinois screwed up when they were drafting their prison regulations they didn't have a rule in place that allowed prison officials to say when there was when they deem something non emergency to make the offender go back through the regular grievance process that simply wasn't allowed this court's repeatedly said prison officials can't make you do more than is required so i don't think the completion issue is on the table here anymore because it's defendants burden on the timeliness issue two points there quickly this court is repeatedly held that procedural short coming in agreements process only amounts to a failure to exhaust if prison official expressly rely on that shortcoming and here there's no dispute that either the warden or the a a r p denied mr walker's grievances and it's as untimely but even if they did this court has held that deliberate indifference to a continuing medical violation is has said that you don't have to file multiple successive grievances when you have repeated instances of the same sort of harm what we're talking about here today is in fact delays in returning mr walker to you i see that's exactly what he was grieving in his grievance and seventy nine to seventy nine he says i'm grieving my dog the delay in being returned to a c why haven't i been returned to u i c that's exactly the same sort of thing that's going on in this court has said that once you file one grievance to that effect you don't have to keep on filing grievances the grievances surface purpose but the st grievance wasn't timely but the it was timely because it was a continuing violation and in any event this court can't reach the question because the prison officials the discrete act of the failure to return him for the post op after the two thousand and eleven surgery that's a discrete event that's not an ongoing event i would submit that at the time that he filed his grievance he still had not been returned to you i see so at that  treatment back at the hospital during that interim period he did have some treatment that time but he was grieving access to the specialized care if you icey i think it was seen something like thirty times during that interim period he was seen by hospital wants him back and the hospital the hospital had asked for him to come back they had asked him to come back within the three months and once that date had had passed y and eleven to understand that he needed to go back he said i understood i was to go back in ninety days i understood the grievance process and i had a copy of an inmate offender handbook telling me about the grievance process yet mr walker remained silent for two years and that's important  here the actual purpose of such forth in the supreme court when they were interpret or that p l r a and then subsequent case law is the reason we want to force the inmate to grieve timely is that it gives the institution an opportunity to correct the defect one hopefully it's going to reduce the number of prisoner lawsuits nd even if it doesn't reduce the number of prisoner lawsuits of those that make it to litigation we're going to have a better record and we have to go back and adjudicate this mr walker had the tools available to him  failed to avail themselves of those tools it is untenable to allow an inmate to sit on a discreet injury for two years before bringing it to anyone's attention that he viewed the problem here what about the fact that the prison did not it have to be decided on the merits as well my understanding and review of the case law is that correct if you do decided on the merits you have to you waive the argument but here there was no discussion on the merits they told him it's doesn't scream immediacy because you're claiming something that should have occurred two years ago resubmit it through the normal channels and he didn't do so right and that's i'm having a little difficulty pinning down your arguments if whether it goes to the use of the emergency procedure and then grievance comes back saying it's not an immediate emergency use of into the process and he doesn't and you are lying on that was remedied i believe subsequently in two thousand and seventeen right now we're relying solely on this is a discrete injury it does not continue indefinitely and he failed to exhaust himself and avail myself of the remedies that's particularly important here because all the testimony in this case from d saying that's not what you're arguing correct we're saying that this issue should have been grieved within sixty days of a discrete injury what about the language in his april st grievance that goes beyond just the i haven't been returned to you i see from the language that talks about the pain that he's in and the other health issues and  degree that that would be a new issue not related to the are not related to the degenerative back conditions that would be on the last aspect ultimately our opinion as to this is that mr walker failed to grief turning as to deliberate indifference as to  harm him so we're simply asking whether dr the record before the court shows criminal recklessness by dr recklessness in the criminal sense against dr ro base st doctor may see isn't liable for the prior issues that occurred of the prison three issues none of them related to his back the critical one was laid weakness is dr davidson the north western neurologist said when you've mentioned leg weakness there's three causes central nervous system disorder muscles or a peripheral nervous system disorder doctorow basi the patients reflex is in the lower extremity which is how you tell how the reflexes respond indicates where the problem is if the reflexes are absent or slow it indicates peripheral nervous system which would be in the low back the area the surgery if the reflexes are normal its muscle objective symptoms were not suggest a of of an issue with the lower back he ripped decided to run a a blood test to rule out a muscle disorder and then plan to refer the patient to neurology which he did the patient than ghost in a rolla g and a pout process for care is put in place from that da  nd doctoral basi is not liable for scheduling issues here he certainly testified he testified one that he has nothing to do with the actual scheduling the on putting the referral and getting at set up to he has no control over you why see now council did mention that occasionally doctoral basi said yes of i'm a wherever problem i'll go certainly do something about it but there's no evidence here that any of the timelines that councils discussing were excessively harmful in fact as the district judge a note it counsels expert even said doctorow basi was it is deposition to doctoral basi deliberately for recklessly ignore risk of serious harm or the patient in the expert didn't offer that opinion so there was nothing here and the time alliance if doctorow basi had notice of them that suggest a problem that required remedy nd doctoral basically never denied any medical treatment here he approved everything that was ultimately recommended for this patient that's released arguing a claim of delayed treatment and it's important because delayed treatment discusses requires verifying medical evidence in the record and the patient simply lacks that evidence and then i'd like to turn finally to the ptolemy of the care argument the district court i think relied very heavily on this this is a record here where this patient received a significant amount of care he may ultimately disagree with the care he may ultimately disagree with the timelines but it's not that doctor obviously was doing nothing he believed this was a neurological issue and he was treating  neurological issue which ultimately four years later it was diagnosed as being turning to wexford the district court correctly held the plaintiff failed to create a question of fact as to what now claim against wexford initially we know that because our argument is there's no underlying deliberate indifference against doctorow basi the claim against wexford would fail as well  nd point of claims that works for didn't have a policy in place related to monitoring outpatient referrals that's not actually accurate they did they just changed the policy for how they were monitoring dr fisher the thirty six witnesses said that began in two thousand and thirteen concluding  and fourteen they changed the policy but they had a policy in place at the time and actually the reason i believe he testified they were changing it was that it was retroactive referrals which isn't the actual situation that was going on here quickly judge saini if you're correct that there with respect to exhaustion this court does have a rule that prison officials have to rely on the ground to deny it and in this case they simply do there's no dispute that they didn't rule mr walker's grievances untimely and indeed because they ruled on a grounds that it's now even conceded by defendants to be improper it would be particularly unjust to deny mr walker's ability to proceed here as you also noted he grieved ongoing pain at the time in addition to his delays in being returned to you i see those conditions persisted throughout mr walker's treatment with respect to dr bases responsibility for scheduling again this is the same argument that  required and he's failure to follow through constituted at least a question for the jury on deliberate indifference defendant's argue that dr basic never did anything never failed to do something that you i see as that's just not true in the st place he repeatedly returned mr forty one of the record dr fisher testified that they tracked appointments that actually happened of course the problem here was that an appointment didn't happen so for all those reasons your honour's urge you to reverse the district court and give mr