excruciating following back surgery that this pain lasted several months at some point and the main allegations in the complaint appear to be between i paragraphs twenty four and thirty six but they the core allegations in the complaint are really paragraphs thirty five and thirty six where the claimant tells dr wolfe that he's still in pain the i v program is just not working subsetting a stomach the effects of the medication is not effect on his pain and he still felt excruciating pain so i think  playing the lead is a plausible claim that he was suffering a condition of urgency in the form of serious back pain so the question then becomes do we have a subjective state of mind on the part of  pain and that naps i think is enough to make out the objective test the question becomes you know what was dr will supposed to do once she knew the planet was suffering this kind of pain  the profane or nothing that's an ultimatum which would commit the entrance that is subjective recklessness on the part of the doctor and you know the defendant's brief raises a lot of issues that are probably more suitable for money or that there was retaliation that's not deliberate indifference to limited differences when you're aware of a problem you're in a position to do something and you just you just subjectively decide that you're not going to take care of whatever reason i don't actually have an obligation se of treatment is not working and you don't do anything to fix it perhaps a stumbling block if your claim is she that she was deliberately indifferent for not prescribing opiates is that there's a general sense that even people who have surgery are expected to stay on opioids for of quite limited period of time i thought you were urging us to view your complaint or to he mr thomas complaint as one suggesting that if you're if o view profane is not working and and the doctor gives the patient nothing else no alternative treatment that there's an inference of indifference that can be raised because there's a of things you can do if somebody is suffering just this kind of pain and if i do think it is not working then you have to do something else and there's the there are treatment options available between i v program and   there was even a suggestion that dr laura had said she wanted to see what the surgeon said before she decided what how to proceed with treatment and this is up to over sixty that i know your complaint skull well into the next year but do we have anything in the record that indicates what the surgeons record was on that further examination no we don't tonight i just wanted were not attached to the complaint at e c f twelve and you know those aren't particularly extensive either but they do provide some dates so that you know you know if you're honest question something that probably will be explored in discovery in may from things don't always give us the detail that we want but i think under it now under that little difference test we have another here for this case to proceed to discovery beyond that i have nothing held that he can not still make the main claim merely by putting forward his away unsupported opinion that the medical professional was wrong so that is precisely this case now in there were kleiber if commas attempts to baby the rule set treatment at the westchester surgical team and given him immediately after the surgery while he was lying in the hospital would still be acceptable sixteen months later he also does not allege what if any  i asked mr bernstein and he agreed that the complaint should not be construed to suggest that defect was not giving him opioids that it could be understood to skate a broader claim tha that the deliberate indifference is offering him only one kind of pain medication ibuprofen when he says when he tells the doctor that's not working and he still in acute pain so tell us why that doesn't at least get them you know past the disk missile hurdle you're on a desk precisely what happened in hill as well and hill the plaintiff was only given the option of move trip and clinton said that's not effective pain medication for me but this court said that well it all the point that has to say is that the medical treatment he's being given is not enough and the medical professional disagrees that sort of mere disagreement cannot create a constitutional violation so yes  does not cite any case where a complaint was so lacking in actual detail survived a motion to dismiss the argument just now thomas come so conceded that this claim is down to two paragraphs of the nothing at the core in hill said there is no allegation that the medical providers acted with a couple state of mind and you have forgotten the complaint is insufficient so troops here now chance provide the gu grievances in writing letters about this in march and april th in so there's a tighter time frame but if he's still in excruciating pain i don't know if it matters how long the time gap was a piece not getting  reasonable medical treatment so we asked this court to reinstate his claim to allow the parties to to litigate his claim this case and discovery and the issues the state raises have any merit they should probably  not sixteen months it's emma or sell it at the most ten months because we don't know precisely when she made that comment but if he did the latest as she would have made it would have been in april of two thousand and seventeen because that's when he filed a grievance in connection with that step with