quantum of harm that are at the heart of what the eighth amendment prohibits into labor says mcginnis mr a alleges that he was suffering from injuries so severe that he underwent two majors trigger ease and pain so excruciating that he actually attempted suicide to escape it and when he turned to prison administrators and physicians and nurses for relief they just turned him away without providing the follow up care that his surgeons had ordered and without providing any care at all instead they callously told him that the pain was all in his head annoyed with his pleas for medical assistance that they harassed him they spread dangerous rumors about him and fixed physically and sexually assaulted him when the supreme court said in farmer versus brennan et that the constitution does not permit inhumane prisons these facts are exactly what i had in mind now the court has consolidated these two cases for oral argument this morning and they contain one common issue mr to his requests for counsel but before getting to that i'd like to first discuss the merits of mr to are on reviewable because the district courts dismissed his case under rule forty one b now this argument doesn't apply to the c d c our case because it's clear from the record that the district court didn't dismiss that case under rule forty one b at all  continue by amending his complaint considering his request for counsel but the sufficiency of that complaint was never before the court and it is properly before the court here now in framing the rule forty one b issue i think it's really important to keep in mind that mr t l a did not ever defy of court order there's no obligation for let against two amended complaint after it's dismissed with leave to imagined instead the court offers leave to do so and that's why repeatedly this court has examined the merits of dismissals when they proceed to a rule forty one dismissal now if the state i realized heavily on edwards versus marin park and arguing that this court can't look at the merits of his complaints dismissed and simply fails to do anything and fails to respond to that order not submitting a response very simply allows the district court to get the case off its docket to enter a judgment close the case and not have to worry about it anymore  is clear in the record in both of these cases after the district courts dismissed mr complaint with leave to amend he felt a request for counsel in which he stated that he could not amend his complaint without assistance and he would not be doing so the district courts were certainly  close the case rather than just have it remain open forever and i think it's also important to note that this rule is fairly hard in the context of a dismissal with leave to amend as opposed to i know other order that that had a defendant doesn't comply  it was in both of these cases and if a plaintiff actually chooses to amend the complaint after being after having the complaint dismissed that prior ordered of dismissal becomes an appealable even if the plane even asked a claims that the plaintiff believes were improperly dismissed and which he chooses not to assert in an amended complaint because he feels that he can't meet the standard that the district court required even if that standard was erroneous lehi and so on so interpret a rule forty one b to also make that prior order of dismissal an appealable is a really harsh sanction and it should happen only where the plaintiff is completely silent and the district court has no idea essentially what's going on it it's left  hanging and that's not what happened here and mr today did respond to both of the court's orders and so even under the edwards rule that this court can reach the merits of mr chiles complains now turning to the merits of mr to his complaint mcguiness case this court has long held that delaying surgery failing to comply with the orders of a treating specialist and failing to respond to a prisoner's pain state a claim for deliberate indifference and that's exactly what mr truly alleged his complaint was not cursory it was detailed there were factual allegations to support all of his all of his claims and what the state and the diff district court have done is they've basically offered alternative explanations for what they defend instead perhaps they really believed that the pain was all in the plaintiff's head maybe they simply disagreed with the with the diagnosis and maybe those callous comments that they made to him things like this is all in your head  you should not be in prison if you want proper medical care maybe all of those were just the product of frustration and respectfully those are arguments that might convince a jury but they don't they don't justify dismissing a complaint that's adequately for example for failing to make clear how prison nurses and administrators would have known that he wasn't receiving adequate care but he did that repeatedly he communicated his pain to those individuals directly and they simply dismissed them and secondly and perhaps even of greater concern the district court misconstrued what the legal standard is for deliberate indifference under the district court's analysis a generalist prison physician or nurse can ignore the tests the surgical results and the orders of a treating specialist because they say they disagree with with the diagnosis or they disagree with the orders and that conclusion is directly contrary to this court's decision in lopez versus smith and on  to the hospital each week for a follow up treatment and to receive a liquid diet through a straw but that didn't happen and he was neither returned to the hospital nor received it with a straw and this court held that those facts amounted to deliberate indifference because they were an intentional would you address that yes i'd be happy to your honor that the district courts in both cases made legal errors and also abused its discretion in denying his requests for counsel so the brief points to three three different legal areas that the courts ma first in the guinness case the district court stated that mr t lay was precluded from receiving appointment of counsel because he was imprisoned at a different prison at a prison that was outside of the judicial district and therefore he wasn't entitled  assess the likelihood of his success on on the complaint in the absence of an amended complaint and at the pleading stage and that's simply not true the district court knew what the factual allegations were and in this case the factual allegations it's really not even a close call if you disregard the orders of a surgeon and do nothing that's deliberate indifference so the district court could clearly see the likelihood of success on the merits and in the c d c our case the district court made a legal  r and disregarding mr medical condition and stating that it was not a basis to appoint counsel and so those are all legal errors that require reversal but this court should go further and rather than simply reverse it should also remain and require the district court to appoint counsel in addition to the merits which i've already discussed the claims in this case are not only meritorious they're also serious the the supreme court has recently acknowledged that court in this case in the mcguiness case said that it's all these kinds of cases all the time and respectfully that simply can't be true it can't be true that a district court sees complaints stating that someone it has has  medical issues and pain so serious that are untreated that he attempts suicide and that he's physically and sexually assaulted for complaining about his medical care and even if that were true then that certainly wouldn't be a reason to offhand dismiss the concerns  if our prisons really are in that state of condition then that's even more reason to appoint counsel in this case and if the court sees that in other cases perhaps and in this case besides the serious nature of mr to his claims  his medical condition makes it very difficult for him to concentrate he can barely sit up he can write for only a few minutes at a time and his pain is extremely severe and and also the ability to investigate facts  potentially interview witnesses but to determine you know what facts occurred and against whom he should assert claims is something that's very difficult to do with his medical condition as well as in step segregated confinement and in a prison outside of outside of the prison where certain events occurred for all of these reasons the district court's denial of his requests for counsel is an abuse of discretion even aside from the many legal errors that the district court made you are reserved in time for a bottle i would like to pouting court orders and controlling the pace of litigation by wanting something before they would comply with the district court's orders this case is not about an inmate confused about the pleading standard rather it's about an inmate trying to clear based on his filings every time the district court order him to file an amended complaint instead of telling the court you have nothing more to allege i'm confused about the pleading standard or else can i say the district court in the screening orders cited rule forty one saying that if you fail to comply with orders you know you case could be dismissed now to be sure to just record forty one b and the subsequent orders that's not what he did here what would you just explain to me one point we asked the district court told the district court to consider the claim the  be able to articulate his claims and so in the court know that especially in the eastern district you know they get these prisoner cases all the time and so especially at the pleading stage you know well that was the district court required under our law to take into account his physical condition and his ability to to comply with the niceties  order to men and he was capable of articulating his claims you just need to correct the pleading the facts as identified by the district court in the order and screening order that kind of finding this entitle to different the court wasn't saying that you know mr tilley you're not the court wasn't really addressing whether his medical issues were real or not which is really focusing on the narrow issue of whether he was capable of amending despite those medical  question assuming that the physical condition impaired his ability to comply with the order did the district court take that into consideration well the court did take that into consideration but also look at the record i mean what what what's your indication the record that the court did that well the court noted that he was suffering from some medical issues but the court didn't believe that he was incapable of mending based on the fact that he had the volume of materials that he and that kind of let me ask you this with regard to the mic in this case let's say that we look at the complaint and find that the court originally aired in screaming it out and the court said well now you've got a man and he tells the court i cannot and that is that enough of an indication they're going to stand on the ritual complaint such that we can then reach past the will forty one be dismissal to assess the merits of the original complaint if he has said i cannot amend because i don't know what else to allege then that i would write them into a judgment which would bring everything up on appeal but he didn't do that in this case he gave the court no inkling however in our family that he had trouble with the pleading standard when i was in a motion for counsel enough to say i'm having some difficulty and why i need counsel so i can a man at the court reject that and think that you don't need counsel so now i know that but i'm just saying you know it's sort of a circular argument thinking here i think theory then it really prevents review of the merits of the initial dismissal of the complaint period right that's correct under the edwards decision so if there was a sufficient of the first dismissal and i think that's a fair characterization to say that the corporate could and from the mending because we do know that the court certainly multiple opportunities well let's assume hypothetically that we have a really good valid i can do about the complaint would be dispositive to say that you know especially under the rule liberal construction the court can construe that kind of statement well why can't we can construe the motion for counsel the same way but there's nothing in the multiple behavior should be you know encouraged here we certainly want litigants including pro se litigants to comply with the district court's orders and they should be surprised when despite multiple warnings that the case to get dismissed prepared to comply with orders so he says i'm almost always crippled and bedridden and completely unable to concentrate and cannot properly review research and prepare my own documents just because he's so i'm just saying ok given that we're given that the case is an early procedural infancy and i'm asking you to do is and and you're capable of doing that so please do that that kind of finding on the front lines of litigation this court should defer to the fact that the court could have gone the other way it was reviewing to ennoble it's not the proper is now a proper basis to reverse and so so long as it's within the discourse discretionary power and it's not clear  deferential standard like abuse of discretion now my opposing counsel states that especially in the c d c our case that the district court denied him counsel simply because it's noting that his medical issues the only difference that you see it here so far is the state and city that's entitled to have an enemy so clearly customers can see that doesn't state a claim against the defendant and the court rightly order mr too late to mend and so under even eleventh on them and ground on the fact that there was a class action in the second round is dubious the we can see the error you are in order to get to the injunctive relief aspect of the case you have to state a claim against somebody in the first place believe that he was talking about the c d c our case on page two be the statement that plaintiff appears able to present his claims adequately preceded the court's discussion or its brief mention of his medical issues it simply wasn't a factual finding of his ability to amend in light of his factual issues and even if and furthermore the court in the guinness acknowledged mr chiles had medical issues so there's certainly wasn't a factual finding the e and i believe that even if the even if the district courts order in the c d c our case is ambiguous and i don't think that the court should read an adverse factual finding from silence or at best ambiguity secondly i'd like to address the issue of whether mr de lay properly invoked his his right to appeal and his request for a judgment i don't believe that any magic word should be required to it to invoke the edwards rule that so i do believe that an affirmative indication that that a complaint will not be forthcoming is necessary but i don't think any magic words should be required third the the only time that the district courts in either of these