concluded nd whether the procedural hurdles that dr wright points to were required and rd whether even if the procedures identified by mr right as being inflexible that the jury could find that they had already been satisfied given that mr smith had previously been on a diet during each of these periods of delay mr smith was forced to confront an untenable choice eat the food served in risk  as a district court said in johnson to harris suffer like tantalus obese or plead that he could not eat the march st notation your honour's is enough to defeat summary judgment a jury could find on the february th which is what mr swan is pointing to that that request was forwarded to the doctor in the march one notation is in response to after that request is forwarded to the doctor it appears to be dr wright signature but more importantly or and yet failed to act well i'm not making a decision one way or the other but i assume that it still turns on whether the six weeks the outer limit was a reasonable interval to secure  dr who's ok and that implicates both the time and the procedure so if unless there's a question of fact on whether or not that was reasonable  but this was a summary judgment and i gather that you have no evidence that says that it wasn't part of the protocol and i'm especially concerned about it because the plane can't it appears from the record had taken himself off the diet i believe it was and that might raise questions about the seriousness of the allergy and the need to maintain him on that diet and so to that extent i'm not sure why warning dr ruse inquiry wasn't wasn't appropriate let me respond to both points t he's approved the day after he arrives at bridgeport there's no evidence the doctor was consulted in advance of that approval so why enter stand that and let me assume that you know when a patient when a prison comes in and presents with allergies they put him on the diet because they don't want any risks but when the prisoner himself is taking him self off the diet periodically at that point when he  asked to go back on it seems to me they might have a reason to make for the ring rather than just having a prisoner who you know this month is on that month is off your client wasn't quite that willy nilly but you know what i  says that he just merely refused a meal and that form says quote that mr swinton may retract this refusal any time which is exactly what he's trying to do here in the nd discontinuation the other more recent this can discontinuation was the morning of february th two thousand and sixteen by that night he was transferred to northern any explains upon arrival that he would like to be put back on the allergen free diet in the notations where he asks and writing to be put back on the diet he explains the context of why he asked to discontinue that diet and also the temporal nature of that discontinuation he says that the reason for this continuation and this is not disputed in the record is that the correctional officers at bridgeport himself having taken it taken himself off for whatever reason is it reasonable for the doctor to you know have have this more searching inquiry i mean after all  you've got an th amendment claim here so you have to find more than you have to demonstrate more than that this was negligence or that other doctors might have made a different call why is it not reasonable to have gone through these very hoops he's never i said that the reason that outside documentation was required despite the fact that it was in the medical file that testing was required despite the fact that there was an epi pen prescription he's never pointed to the fact of that discontinuation which lasted for less than one day as a reason to go in to revisit the nature of the allergies there's no record there's no evidence in the record anywhere that shows that the doctor would have been reasonable to find that he allergies had subsided the only thing i think your honor would be if this this continuation had lasted for perhaps a prolonged period and he could point to the doctor could point to that prolonged period and say see that my red light is on your honor if you like me to continue and if the doctor was able to point to it let's say up a six month period where he was off the diet and say well based on that and the fact that you'd discontinued six months ago i no longer think this diet is necessary if it is it will go through these additional steps and perform the testing but there is no nothing in the record that suggests that was the reason for dr wright requiring of these hoops to be jumped through he doesn't explain that that's the reason for the delay from march st to march nd or even march th and there's nothing in the record that suggests that his allergies weren't as serious as he says in fact it's undisputed that he would have been an a flat and could at least have an n f l active reaction if he ate eggs or slowly and so the fact that he went off of his diet for less than one day doesn't call into question the on imagine that mr swinton had arrived at northern and there was there was a mistake that he was inadvertently left off of the allergen free diet and he made a request to go on to that diet as he thought he still was on what dr right would have done in that case that would have been the thing that would not have been reckless would be to check the medical file see on the st page that there's an end of the lactic reaction noted there and to put him back on the diet it would be reckless whether have reviewed that medical file and then taken three weeks of complete inaction one week of nothing after the doctor's visit and on march th saying outside documentation is required despite the fact that there's documentation the file that's reckless that's what i was going to say to you is that i know your court appointed but it seems to me that the court would like to see more discovery in this case about some of the practices and procedures the hof at the facility if i understand your argument on subjectivity in particular you're saying if they haven't come forward with evidence to demonstrate that there was this in the when when the court reviewed these various conditions of confinement in the past that it shows there was to send this back to the district court in part because some of this material had to be fleshed out but you're right your honor there's been no evidence to corroborate the say so of the doctor that these policies had to be used in every case but even if they have evidence other than say so other than the say so but there's but there is conflicting evidence on each piece is on testing on outside documentation and on  and ninety seven and j a two hundred and forty eight those are the two orders that were entered for the therapeutic diet the st one by dr elderkin at the bridgeport facility the nd one by dr wright at the northern facility the document itself is the same explicitly requires the approval of the head of correctional manage health care at u conn that is the d l c policy dr wright prepared an affidavit which said that that was the deal c policy no evidence was proffered to suggest anything to the contrary but he went on the diet of breach point right away right he went on the diet as soon as he came in to report now why did it why the approval that you just said was in all cases and within twenty four hours that time and not done for three to six weeks on this last can filled out the form that said i referred this to correctional managed health care i got my approval from correctional manage health care page did you say that was on but i have a note here j one hundred and ninety seven that's the same form that dr wright used when he put him on the special diet in april of two thousand and six right but if he didn't  are you saying dr wright had the approval for the diet the same day no doctor i taught him on on march nd where he raised his complaints about his back and he didn't get approval for the diet until april know this was not a new claim that he needed to be on the diet he had been on the diet most of the time he's in the hospital to be or in this to sit in the prison to the extent that was now a concern as to whether he really needed to be on the diet wasn't the appropriate course has been to put him on the diet do all these tests and if he didn't if it turned out that he didn't really have a severe analogy take them off it but tend to not have them on the diet why couldn't a jury find that  could perhaps find it find it negligence the reality of prison medical care is that inmates are constantly in specially in regard to food and i understand that but to the extent that this is supposed to create a reaction that could be life threatening i would assume that you know that's why you put him on right away when he st went into the prison well and in retrospect his condition wasn't life threatening in any regard if you looked at the rest testing he had very modeled allergies to these various i understand that but that's the testing that's done afterwards by dr rice that dr wright orders correct blood testing rast testing prior to the one ordered by dr ron but i made nothing must not be making myself clear until through march no one knew how severe these were are not a script but the prison had kept him on the diet for all of his time there except the two occasions very brief when he took himself off right now before putting up somebody back on not was asking for it for the st time  o's been on it for months you're saying it was a responsible thing to do did not have them on the diet until six weeks of testing was done over three weeks of testing you would say three weeks and i would say respectfully i would say it was very reasonable in the context of prison health care where inmates are constantly going on diets claiming special diets giving up on diets because i think the most as as judge underhill said at the very end of his decision at the very most you have negligence here dr wright saw him once on march nd and started the process for this blood testing that was done within a two week period of time i think judge underhill was exactly right when he said you can't get a record you're not saying that on a mission they did blood testing and all of that right because the the answers were in twenty four hours the answer to put  medical services at u conn he's the one who makes makes this determination based on the referral whether the therapeutic diet sure mr gast says that there was a genuine dispute about the protocol and how it works under or how supposed to work under the circumstances and this seems to be some factual dispute about whether the protocol would allow have allowed the doctor here to give him a diet temporarily subject to whatever further testing was undertaken or approved by doctor i would respectfully respond that there is no see that anywhere in the record you're exactly right your honor and this is not a lawsuit against dr will not a lawsuit against you come this you know but if the argument is that dr wright acted reasonably because at that point it was out of these hands well he couldn't act without afterwards approval and doctor who had given it i would think that we need more accidents and that this is a lawsuit against dr wright dr wright is mandated according to sent them back any claim to the procedure of dr who of yukon is frankly for another case the question is what did dr wright do here i would submit he did exactly what he was supposed to do the plaintiff's entire medical record as part of their motion for summary judgment so it was in our submission it was never raised to judge underhill there's never been a claim from anybody that dr wright saw him on march one didn't raise this issue of the crossed out entry before judge underhill it is basically a new new legal claim at this point but had to do we just ignore it no i well if you want to get into that into it if you compare the signatures from when dr wright sees him then go to jail to forty eight i don't know what you're talking that there's a signature upside down doctor right for that entry on march nd correct and it's also a strong so i mean you know and there's i not sure i can say that dr wright didn't sign both of them either of them i totally agree but i don't know what we have is he's the main purportedly his signature march st we are on summary judgment you know the your clerks here went to draft a decision immediately after that interesting artist argument we just heard and started to draft a decision that was in favor of the plaintiff and after discussing it with fellow lots of different handwritings putting in the clinical now and i would submit the signature on each and every one of them the signature i would submit is in response to the incorrect order being scratched off well but you know your you accept at all all that does is extend the period twenty one days the bottom line is that dr wright saw him on the nd was obligated to make the referral to yukon made the referral to yukon blood testing therapeutic diet was ordered i would submit that you don't get anywhere near a standard required under the th amendment you know on the subject of thank you but thank you disputed at least in the briefing that mr skilling's allergies were serious and j one hundred and ninety six dollars this is the notation by dr wright ultimately putting mr swinton on the allergen free diet it says if lactic rather severe reactions so there's no dispute so the cause of these and for me at least that this is a close call is that if he had had such a reaction and been permanently we are where we are today but the question for me is we are talking about a violation of the constitution and then talking on the subject of pran about the the protocol is what it is and there's no let's assume that there's no dispute about that then how is that little bit of difference so your honor one there's been a lot of hiding behind the march nd the protocol wasn't being followed there were no steps taken from during those three weeks to follow the protocol so you do see real significance to that period between the  severe issues restricted diets where the diet might not be adequately nutritious but there's not even a concern that if the inmate were to eat one portion of the tray that's happening right that was not the basis for he was representing himself mr swinton did note the notation and said that that was the basis to find that dr wright knew as of february th and that dr wright should have taken action earlier give me mr gaston but was not paid you can the as the the the inflexibility as to these procedures and whether dr elder can had to get dr was approval as the government just said a reasonable jury could conclude that if these procedures were as inflexible as the government suggests then these procedures must have been completed in the st instance based on this for the foregoing reasons your honour's the district court's order