will turn to the last case on the day calendar darby vs green darby in this matter i preserve two minutes for rebuttal your honour's this case is straightforward while he was detained at rikers island mr darby experienced serious medical problems which were not addressed by the french was not until he was in the custody of new york state that he finally received the treatment he needed a large mass in his right gum area oral surgery proceeding pro se below mr darby father complained containing allegations that established one that he suffered from an objectively serious medical while he was at rikers and two that the defendants were deliberately indifferent to his medical needs only one of the defendants appearing before the court today saw permission to move to dismiss the district court did not wait for the other defendants to be served or identified that i'd asked for a full briefing on the matter but instead dismissed the claims against everyone based in part on arguments that were never even raised by the defendants below even as the proceeding magistrate judge was in the process of ordering that mr darby obtain information necessary to identify and serve the do moment to talk about the objectively serious medical condition prong of this case that applies to both the th and th amendment deliberate indifference claims and i think it's clear that the allegations that mr darby made establish the existence of an object of the serious medical condition as cases in this circuit have established cases that the district court did not discuss controlling cases such as harrison and champ's and these cases along with many others demonstrate that mr darby's allegations establish an objectively serious medical need he alleged that he had a large mass in his gums that caused serious information swelling significant pain interfered with basic aspects of his daily life and ultimately required oral surgery caused him to lose sleep caused him to lose weight and this and harrison and the court held that a two cavity is a serious medical need same chance in coal versus callsign the court hold held that an incarcerated person's need for prescription eyeglasses was a serious medical condition because in its absence the plaintiff suffered headaches and he was impaired in his daily activities the court has summarized the standard brock as whether reasonable doctor or patient would perceive the medical need and question as important that's clearly the case here or whether the medical condition significantly effects daily activities mr darby alleges that here or the existence of chronic and substantial pain mr darby also alleged that so although those were not exhaustive factors that brock identified  darby's complaint with it's taken to be true and with all inferences drawn in his favor suffice to allege an objectively serious medical condition the defendant's arguments to the contrary are just flawed in many respects partly the defense point t other cases which had more serious allegations where this court found deliberate indifference was established but that doesn't suggest that only conditions that satisfy that lawless of parity also are necessary to establish a difference the defendants also suggest the plaintiff didn't use the right adjectives to describe his pain and discomfort it's inappropriate at this stage of the case and the defense also claim that because mr darby didn't allege that his condition posed a risk of future serious consequences to his hell it was insufficient to me an objective standard of harm but that's exactly the mistake that the district court made and darnell versus pretty narrow which this court corrected quite clearly  o for those reasons we think the district court's conclusion on the objective serious condition should be reversed as to deliver and difference both objective and subjective the plaintiff mr darby alleged that he told the defendants what he was experiencing that they did not take action to solve his problems and that he continued to experience pain and significant distress after he saw them he alleges that he told them both in his visits to them and that he continued to seek medical care through sick calls repeated sick calls during the course of history to come to the course of his car incarceration at rikers and that he never received the care that would resolve his condition and these allegations are detailed in the complaint all it's a at the atlantic at the appendix from pages fifteen to eighteen and what they all show is that the defendants knew that mr darby was suffering significant pain and complications from his gum condition they knew that none of any interventions they had offered how to leave it at those problems and indeed that his condition was worsening there was really no intervention that they offered but they knew that his conditions were worsening and this is quite quintessential deliberate indifference whether measured subjectively or objectively and this the court said in half a way where a doctor was aware of the plaintiff's pain a jury could infer this summary judgment stage not the most dismissed the jury could infer deliberate difference from the fact that the doctor knew the extent of the pain and knew that the course of treatment was largely ineffective and declined to do anything more and those are the  have here there are controlling nd circuit cases that this report did not even attempt to explain or distinguish or cite harrison where the plaintiff requested treatment for a cavity but the defendant insisted on extracting an unrelated to this court construed that claim as not a delay treatment case but a denial of treatment case and found that there was just sufficient allegation of deliberate indifference at the summary judgment stage  champ's there was another case involving a cavity where again a caregiver insisted on doing a tooth extraction and the plaintiff didn't believe that was necessary and in chance justice in this case the plaintiff ultimately obtained treatment for his condition without having us to fix tracked it and the court found that those allegations suffice to establish deliberate difference i'll just close by saying there's one last of defendants who i think it's worth talking about is that those defendants  o mr darby was seeking to identify when the district court dismissed the claims even though no one had appeared on behalf of the doe defendants and the argument they are the only reason the district court gave gave one reason for dismissing mr jarvis claims against the door defendants was that he didn't allege that the grievances and the calls that he filed reached the door defendants and that is reasoning directly contradicted by this course holding and grow and where the court said and grow and we can infer from the fact that the plaintiff says he sent the letter to the warden that the warden received and the warden read it at least we can infer that at the motion to dismiss stage and so that is the reason your honor that at this stage we believe drawing all inference court should reverse at remand the district court decision i look forward to the court's questions allegations is that no one knew that there was a mass yet there were no image igs studies that were done which made itself as a problem but i don't know what was available to them and dr agreement saw him either once or twice and twice offered i think to extract the two thought that that would alleviate some of the pain because of the source of the pain that was clear i not apparent to me why that amounts to deliberate different he proposed to do something that maybe had you know turned out not to be the right thing to do to solve the pain but was his best judgment at the time why does that evidence deliberate a difference for a few reasons such current and i want to square that's basically a cubic inch that's a large mass and so if we're reading the allegations and drawing them in the favor of the plaintiff i think we have to draw the inference that they were  i believe the allegation says it was ok if you look at the if you look at the j it says that it was at the time he presented now these were additional occasions that mr darby attempted to include and in a proposed emetic complaint these were allegations that the district court found would be futile to denied leave to him and because he found there would be few tile but again we have to understand mr driver was proceeding pro se and so i think we should take all those allegations together but let me let me so that's number one number two what the i think and the district court read the complaint this way at least it said it read the complaint this way what we can take from the allegations is that actually dr green men agreed with mr darby that he needed to see a specialist and there's no evidence that he actually went through the process of ensuring that mr darby see a specialist and the district court understood the complaint to allege that mr group that dr graham and never made the referral so that is or whether he had the time is not and we can't draw that inference against mr darby that's a question that would have to be resolved and discovered and it could be that the evidence shows that number one dr agreement did make the referral and he made every effort to make the referral and he just didn't have time but we can't draw the inference against mr darby at this point and to let me let me just say that that that that the my my concern is that right i think the inference that can and should be drawn to mr dr receiver is a variety of things number one that the problem was obvious when he presented number two the doctor came in agree that a tooth extraction would not solve the problem and that he needed to see a specialist number three the doctor to him and didn't make the referral to the specialist number four as as mr darby continued to complain about the symptoms he was experiencing and the extreme pain he was in that the defendants were aware that he continued to be in that state and took no additional steps to alleviate excuse me so when you say the defendant's i'm trying to be very specific about what the agreement it would do what dr hamilton could do and then separately what the john doe defendants knew and could do so dr greenman knew that he was experienced things to different swelling that the tooth extraction would not alleviate it that he needed to feel a specialist and that he continued to experience pain during the entire time that he was under the care of dr green men and dr graham and during that time took him again taking the plan complaints allegations and drawing them in and drawing the entrances in favor of mr darby that he took no additional steps to solve mr darby's problems now as to what he could do that is simply that i don't think there's any way the court could draw an inference that against mr darby at this stage i think that district court sort of threw that inference but there's there's nothing in the complaint to suggest that dr freeman couldn't do something for mr darby complaints the only thing that we can draw from the complaint is that he didn't do something for mr jarvis complaints and you know to the extent the court is entertaining because you know of course looms large here to the extent the court is entertaining the possibility that well there might be some other explanation for what happened the court the nd circuit made clear and andersen news in twenty thousand  hundred and sixty two that the complaint can't be dismissed if it states a plausible version of the events merely because the court finds a different version more plausible so even if the court thinks it's more likely that d take action for absolutely so when mr darby presented the doctor to dr hamilton he explained everything that he reported is history explained to symptoms and the only thing dr hamilton offered was to cleanest nothing more and again after that after that visit mr darby continued to complain so i mean one thing that's interesting about the defendant's admission in their opposition brief is they direct the court to an out of record sort of website about the condition that they purport presume mr darby experienced and you know normally i'd say you have to disregard that it's not content the complaint if you go to that website the the alleged treatments offered by the defendants here are a truth extraction cleaning teeth they're not mentioned at all no one identifies those treatments as actually responses to the problem suffered by mr darby so as dr hamilton again we have alleged he knew we have alleged didn't do anything in response and we allege that he knew that mr darby continued to experience pain and symptoms after his that all those things at the motion to dismiss stage are sufficient to establish deliberate indifference  that mr dobbie complained they didn't receive a response there's not anything about when the calls were made who so what the what the  identity of those individuals and the magistrate judge had ordered discovery and literally three weeks after the magistrate judge the defendants and said we found some records that might help us figure out who the doe defendants  the district court just dismissed the entire case again none of the arguments you know the arguments about deliberate indifference that were made in the district court were only arguments focused on dr dream and none of the arguments were focused on what we know is at least as the complaint alleges those are people who are supposed to process the requests and arrange for a response and none of that was happening so that's what we know and again if we take this course decision and grow and that is enough to establish the personal involvement of the individual defendants in the lack of care that mr i received again discovery may show something different we don't know with that's that's that's what discovery is for but at this stage of the proceeding mr darby has alleged that there were defendants who were aware of his condition who were obligated to do something and who didn't do something i mean that's deliberate indifference it when did you come into this action or  thousand and eighteen by mr darby and just to answer a question about how i came into the case i was appointed by the court from the civil appeals down to represent mr dobbie pro bono the district court when it issued its decision had certified that any appeal with the not be was i think there was a referral order from from judge kogan to judge can't magistrate judge scanlon and there were a series of discovery conferences at which the magistrate judge was trying to get at the to the bottom of how it would be possible to discover the identity of the dough defendant and i think the defendants were making the city was making good faith efforts to help help to identify the defendants and in april  difficulty because of where they're stored and then closes by on a more encouraging note we have located some log books regarding the dates at issue which might help us identify who was getting sick  plaintive as well as to the badge a straight jacket correct correct your honor and what happens if anything at this point between then and the time that there's a order  so it wasn't technically from corps counsel's office who were the way they were private counsel i assume they were retained by that they were retained by the city of new york to handle the case at the trial level issue pending before this court is whether the doe defendants were properly dismissed professor to stand a client i think if the court reverses and remands as i think the court should than the issue of the identity of the doe defendants will have to be explored in the district court i don't think that before this court plaintiff is a pretrial detainee where where where do we draw the line between the standards for malpractise and the standards for deliberate indifference or is there a knows one have to show objectively that the defendants disregarded a serious harm or risk of serious harm which means they should have known about it even if they didn't know they should have known  and they didn't take sufficient action i think that at the pleading stage it can be awfully difficult to police the line between a typical medical malpractise claim and an object of deliberate indifference claimant their eyesight which i took one district court decision in the southern district that points that out i i don't know that it i don't think this court this case presents that difficulty that is i think in this case we've got a clearer allegation that the defendant all the defendants knew and that none of the steps that the defendants took were actually responsive to mr garbage conditions and in more on using discovery to get at the difference rather than trying to resolve the case that the pleading stage which this court has said multiple times in the prison context the prison and the jail context that many of these record your honor there's a number of questions that would go into that one as obviously discussing that with mr darby i mean i think in candor to the court my full time job as a law professor although i do litigate cases  in the time that i have outside of being a law professor so so it's a it's it's a i don't want to say it's it's an unfair question but i would say that was something i'd have to discuss with mr darby and that i would also have to be very considerate of all the other obligations i have because my full time job is something other than being a civil rights litigator these days going on that so i think you can i quarrel with that a little bit your honor on a couple of levels so one is one is district court decisions that i think that suggest that dismissal in a case like this is appropriate they have an impact outside of their own court so i think number one just on this on the straightforward legal question as to whether or not the district court got it right or wrong it's extremely important that this court give consideration to that and we think that here the answer is the district court got it wrong and for the part for the you know from the perspective of the system it's extremely important from the perspective of mr darby i think you know he's he has returns to the trial court he isn't able to obtain counsel either if i'm not able to do it or or someone else that you know will do it that just seems also unfair there are pro se litigants who are ultimately successful and yeah it just strikes me as not not not fair to mr darby to to base how base this the course resolution of what seems to me a pretty straightforward legal question as to whether or not in the end the court thinks that mr dobbie will be able be able to obtain relief in a practical matter because of whether or not he'll be able to attend council i mean things change when motions as mr denied other lawyers and the civil rights bar become more willing to think about taking cases and so i think it's i think that is not a consideration that to me the court should be entertaining e was transferred ultimately to new york state docs in two thousand and seventeen i don't know exactly when he was released but he  his not incarcerated and he is fully prepared to litigate the case either on his own or with the assistance of an attorney so he is you know i think in a good position to do so why the agreement tried to extract is to the record doesn't reflect that your honor in this certainly the court i think in harrison is familiar with and certain prisons policies that basically  just insisted on extraction and various cases i don't know if that was what was at issue here the record doesn't reflect it but i do think the record reflects that ultimately dr agreement agreed that an extraction was not condition and that that want to claim that i mean the no extraction was performed so really the question i think the extraction plays a role to the extent there is an argument that well you know that if it wasn't deliberate deliberately and different because he offered an extraction and this is exactly the situation that the court confronted and chance exactly the situation that the court confronted and harrison which as  you know losing a tooth is a big deal it may not be a chance chance that it may not be the same as losing an arm or a leg but it's not in consequential and so so to the extent that defendants in the court try to characterize this as well mere difference of opinion this isn't just a mere difference of opinion there's a situation where the doctor initially said i think i should extract or two and then realized that that was not the appropriate course of treatment because agreed he agreed that mr darby needed to see a specialist so i think that's the only way it plays in is to the extent defendants and the district court are framing this case as a mere difference of opinion as to medical care and it's not a mere difference of opinion this is there's nothing in the record to suggest nothing that the defendants  presented certainly nothing in the complaint to suggest that a tooth extraction is a response in any reasonable way on any level to come in formation again who knows what discovery will will this whole complaint sets forth that a significant size walch and either abscess or what had he was identified which i hadn't really understood going through the initial complaint so this is how he proposed to amend his complaint to provide additional details that might shed light on the questions that the promise is asking about about why extra ction or cleaning or what have you might keep getting might have been appropriate or not and whether it was well beyond simple difference of opinion about the appropriate treatment alleges that he refused the for that because he did not want an extraction and that's paragraph twenty of the complaint this is not like harrison there is no flat refusal treatment because the plaintiff is not alleged that he return see green men and said i want to see a specialist and he doesn't allege that he returned and said i want to see a specialist and he doesn't allege that in response agreements said if you don't let me perform an extraction you can't have any treatment y referral was made to a specialist so there are no allegations that dr agreement acted intentionally or recklessly in the face of an excessive risk now in addition there no allegations that riemann do or should have known that either the plane to urgently needed to see a specialist or required surgery surgery and consciously just heard are that risk the pleadings don't support this inferen entered the system on february th one hundred and seventy four months later in june of two thousand and seventeen he entered state custody when he entered state custody he alleges that he complained about the pain and swelling the gum inflammation and that he was referred to a doctor after the doctor he had a radiology he alleges after that he had an evaluation by multiple specialist before ultimately in feb of two thousand and eighteen of school year later and majority of the delay seven months happened in state custody there's no certainly those allegations don't suggest the greenman knew or should have known that by not somehow expediting that referral that was made while he was obesity per person or or even arguably the scheduling of surgery at that intersection where it took multiple specialists and a radiologist after he was transferred to take al of a pro se complaint that is fairly detailed and that describes an extended period of pain related from an abscess that was identified as being and to draw a reasonable inferences in the plaintiff's favor is it appropriate to affirm the dismissal of this complaint isn't there enough here to go farther to look for medical evidence with regard to the doe defendants obviously to try to identify them and with regard to the doctor's greenman and hamilton to get a better idea from  experts about the what their course of proposed treatment how that measured up i can imagine it as being reckless potentially princes i don't believe that the complaint supports an inference that dr green men acted with the necessary mental state there was according to the plain the complaint and it's clear from the complaint that the source of the that it's a fair inference from the complaint that dr greenman who saw him at one appointment offered to see him at another point which the point to refuse that while he was  that in the two month period in which he was in the facility the doctor agreement was working in pretrial detention and obesity or referral was made to a specialist i don't think that those yeah and dr hamilton the plaintiff's own allegation as i just mentioned was the doctor was a doctor hamilton thought the cleaning would solve the pain now i don't there inference could be drawn and he must have drawn that inference in certainly the allegations in the plane the complaint do not support an inference that hamilton you know concluded that you know that possibly live that dependent hamilton knew that the cleaning and you know would not suffice and intentionally chose the wrong course of treatment here he was trying to address  pain and inflammation i am not a dentist but maybe even if he didn't think it would solve the pain maybe he thought it would address the pain  the period of time that he was in that facility he was only there for one more month that was post sentence when dr hamilton saw him at our in d c he was there only one more month after esau dr hamilton and then he was transferred just make us today even giving the complaint which i don't it sounds like perhaps my adversary doesn't fully know and i certainly don't fully know the involvement of the attorney  numerous to call requesting grievances and why can't we and for from the failure to get a response from those calls that the additional fifteen sec all requests and grievances but he was transferred out of the facility within two months the timeframe is even more compressed at the nd facility after you've indifference well i mean if he didn't respond can't that be enough particularly in a situation where he doesn't know who specifically was on the receiving end of can it could be enough depending on could be enough under circumstances on which it's clear that they were made note of it excessive risk of harm to withheld and here are the pleadings just don't support that he said he complained that he continued to have a medical it's tension that was getting worse and he needed he had a medical condition that was getting worse and needed medical attention  looking for those that call logs in the grievances to try to assist in identifying the doe defendants they had they were they were in school or md that some documents were identified and that and they were awaiting receipt of those documents in the meantime they had they had informed the court that they plan to move to dismiss and had articulated the grounds for doing so after informing the court of that that's in the joint appendix on page forty eight dollars that happened on april th they updated the court to the nose and said we intend to move to dismiss on these grounds in response to by my by counsel i reached out to hide out the tony before the argument and they said that because the court ruled on the motion they didn't the call the law books had not yet been delivered and they didn't follow up on the court had  out that the arguments that my adversary make are reflective i think of the attitude that the district court and the defendants take to mr jarvis complaint let me just focus and i want my adversaries said about paragraph thirty seven of the complaint if you recall my adversary says that that allegation shows that mr darby's alleged himself that defendant hamilton thought that the cleaning what's called mr jarvis campaign that is not what that allegation is that it says  darby to justify just doing a cleaning and then there then the complaint says mr darby protested and explained that he had a serious gun issue and needed more than a cleaning and then the come out again says defendant hamilton ignored now defendants want to take that allegation and turn it against mr darby and that's exactly what's inappropriate at the motion to dismiss stage same thing with with dr graham and your honor mr darby didn't refuse a treatment he was told they were going to pull his teeth we've already established that the pulling of the peat is not responsive in any way to mr darby's complaints and for both the defendant hamilton and defendant green men the allegation show that whatever they thought they were offering mr darby he continuously told them gave them information through his sickle requests that it wasn't working and that is it that is half the ways description of delivering difference we've cited in our brief i said it to you already today but it's thirty seven dollars f the rd at sixty eight dollars and this is subject to deliberate difference not the more plaintiff friendly object a deliberate difference when a doctor knows the extent of the plan to spain knows that the course of treatment was largely ineffective and declines to do anything more that deliberate indifference that's what's been alleged and on a fair reading of the complaint and i'll just say on the pro se point your honor just to clarify all mr darby basically there was an attorney that took one of mr darby's old complaints typed it up for him as i understand it added the legal claims at the end right to make it look like more like a legal complaint but that there were additional things that mr darby wanted put in there that just weren't put in there he didn't i don't even think talk to an attorney frankly your honor so this was a case in which he was not receiving any real assistance of counsel and it shows in the fact that these critical cases that this court decided and harrison and chance and hathaway aren't even addressed in the district course decision i mean these are controlling cases and this in this in this in the dental sort of health care issue area and they aren't even addressed or let alone