may please the court i'd like to introduce my student jane ray she's going to be present an argument today with courts indulgence  please the court this case is about defending if they're going to grant mr banks access to necessary and basic medical care this court should reverse a district court summary judgment ruling for three reasons first mr banks exhausted numerous claims to the virginia department of corrections or video sees grievance procedure process second even if this court finds that mr banks failed to exhaust this should be excused under the well established exceptions to the prison litigation reform act or p l o and finally sufficient evidence was produced to show that there is a genuine issue of material fact for mr banks's eighth amendment deliberate indifference claim first mr banks did exhaust his administrative remedies for the treatment of his concussion and for the early termination of his dialysis concussion another was from an injury related to his restraints which was interfering with his dialysis port and the third was a scheduling conflict with his dialysis treatment and that history might have been terminated early because the prison was scheduling his outside medical appointments in conflict with those dialysis treatments i do understand that he exhausted a lot of grievances but the actual things he's  mr banks i did not exhaust the claim related to the outside medical appointment but look i'm sick and the other the other claim that i see in the appeal is the claim against the nurse nurse myth was that one exhausted the are you referring to i'm sorry are you referring to the green excited within the second amended complaint with relation to nurse smith yes and i misunderstood something i thought that the two claims that were before us on a there are those are the only two issues on appeal the argument is that limiting mr banks is a complaint here it's only the second amended complaint is a violation of the liberal construction standard as established in this court and  are you saying that those earlier versions should have effect as well yes that is argument i mean what's your authority for that the liberal construction standard as a salish in this court is that extended liberally it was unfair for the district court to limit mr banks who is an on educated pro se plaintiffs who had requested representation on this matter three times but was denied this is on the record at one forty seven one seventy and three zero three  attorney and did not understand when that when the district court told mr banks that his second a complaint would be the sole and only complaint in this matter and would therefore supplant all other complaints here he did not understand that that was the standard and that he would only be limited to the claims brought in the second amended complaint but even if this court were to only consider the second amended complaint other claims can still be brought here on appeal because mr banks made broad constitutional allegations to continue with the more broad constitutional violations and the the smaller more developed claims that were developed on appeal and here mr banks and the appeal pleadings here are based on all the exhibits contained here in the record so all of the information here is contained in the record it was things mr banks had already it attaches exhibits to the first complaint and it is not traditional for a court to exclude exhibit so yes a second amended complaint can be of course be considered the sole complaint in the matter but the exhibits still remain on the record and all of mr banks's claims being brought here are contained within those exhibits which were attached to mr banks complaint and he should not be required to reattach all of those documents to be then able to reference those here so are people supposed to figure out whether they're being sued by going back and looking at the exhibits that word to a former  are on notice but you seem to be saying anyone who is referred to in an exhibit attached to the prior complaint that that claim also can be raised now on appeal is that not your position our position is more narrow than that your hon that all of mr banks's claims are included here in the second amended complaint and provide reference to the exhibits already on contained on the record so therefore there was notice because that second a minute complaint provided sufficient reference yes within mr banks is second amended complaint he makes brought allegations against mr gore again to the deliberate indifference so that there and is a very broad statement of course saying that the doctor was deliber different to a serious medical condition that includes both mr banks's concussion and as dialysis are you saying that just because it's so broad that anything that has to do with labor and difference with respect to serious medical needs is  state we're arguing that under liberal construction and in viewing this second amended complaint as something filed by a pro safe plaintiff again who was denied counsel and multiple times and was very ill viewing not under the lens of liberal construction and under president already established in this court again and in lowery that a pro se inmates inmates broad constitutional violations can therefore be sufficient  to to allow claims to be brought here on appeal and in addition under the second amended complaint on the record at one sixty one mr banks also refers to the initial incident of his concussion occurring so has brought to the attention that the concussion occurred and then therefore follows it with a description of several symptoms that he suffered from so his continued development of of hearing loss dizziness blurry vision and chronic had pain so he did sufficiently include within the second amendment complaint other grievances which were filed you may have talked about the speed at the beginning and and i missed that but did you say that  we did not include that claim here on appeal we're pursuing his concussion treatment and his dialysis ok so you're waiting for for that one no your honor when we did not waive that claim but we are saying that mr banks to that claim is that it should be viewed under the liberal construction standard and that mr banks was just continually grieving these instances in which dr gore and nurse smith failed to provide him with with adequate medical care and that  relation to not only to that claim but it to his dialysis and concussion treatment can be excused or even found to be fully exhausted because mr banks filed a series thirteen emergency grievances with relation to both his dialysis and concussion treatment and in two thousand and thirteen when mr banks was incarcerated the virginia department of corrections grievance procedures provided no way to exhaust these emergency creedence says so the grievances provided  addition that these emergency grievances can be considered exhausted because filing emergency group itself was final because there was no further procedures within the virginia department of corrections to allow mr banks to exhaust they were exhausted because no procedure existed but if the court were to proceed under the rafi blake exception the emergency grievances can be considered and exhausted under ross prong one which is the operate the procedures operate as a simple dead end because there was no procedure in place so mr banks never had the opportunity to exhaust these thirteen emergency grievances because the procedure didn't exist and because and he continued filing these grievances but yet the prison never never corrected this failure and never told him again that there was another way to exhaust in addition mr banks does not have to exhaust every continual violation of his constitutional rights and the p l r ray does bennett which cited again johnson with approval mr banks can be seen to exhaust because he did undisputedly exhaust grievances with relation to both his concussion and dialysis treat defendants even concede  i mean defendants have to know what they're being sued for how would dr gore know that he needs to come into court and defend against the termination of dialysis because dr gore was president and the clinic and he was very aware of the fact that mr banks was very male and he might think like few good thing nobody sued me for that because i'm secure anywhere in the complaint all mr banks did allege those complaints within his first complaint which again he did not understand was to be the sole and only complain but yes again under under the doctrine of liberal construction mr banks still prevails here i mean even if you were to only rely on the second amendment mr banks still prevails here because he does provide broad enough allegations there that do still put defendants on notice of these resume may please the court this case really is simply about a cook the operative complaint as judge he has pointed out is the second a medic complaint if you read judge hilton's order from june twenty second two thousand and fifteen which is that a one fifty one to a one fifty six one of the most profoundly deferential orders i submit that i've ever seen a district judge write for in a pro se case and i'm sure is for me with that order judge filled literally walked complaints that the mr banks is relying on to say that it's all in there is a basically the argument is all in there they were scattershot they didn't identify who did watch they were just essentially a scatter shot grouping of allegations about various medical issues and that's not appropriate pleading it doesn't give the defendant's fair notice of what they're defending and judge shield appropriately recognized that that wasn't right and bend over backwards to help mr banks or mr banks did file the second amended plain and i would submit the second many complain is fairly focused and it focuses on let me ask you about the concussion claim because i think that's the one that i have a concern about with respect to exhaustion it seems me that mr banks made an effort to exhaust that claim and will pardon the pun you literally get banging his head against the wall trying to get treatment with respect to that particular element to no avail so how is it that you can legitimately say that he failed exhausts that well your honor the position i believe that there are advancing in and that the courts bring my attention is well he complained about the concussion so therefore anything that they can or you had some relation to the concussion for example a neurology referral a year and four months later which is what this complaint is refined that's somehow falls under the ambon of the concussion and therefore it was exhausting you put your hands in quotes like that if i was that say otherwise but three separate physicians this man needs a neurological console this isn't it normally in these cases where you know it's the loan in may crying in the woods i need something first level review would be dr goren you know dr gore may not be as objective about revealing his decisions as others but if you appeal it it goes up to to richmond and ardmore whatever where the headquarters is and there are several spend it state law claims and to be frank with the court that is perhaps the most a bigger official in this in that judge hilton's order does not specifically address the pendent stable claims and frankly that's the biggest concern i have from this argument is the one thing that saves the court from having to get into that is the concession in the second amended complaint very clearly by mr banks on page a and we see certification because it is common knowledge for the jury that the defendant's actions constituted medical malpractise virginia code section eight point zero one twenty point one requires a plaintive before serving a complaint to have a opinion from an expert qualified the standard of care in the same specialty as the defendant or related specialty in this particular case mr banks is saying in his complaint i don't have one i don't need one now the only exception to needing an expert is the bever beverly enterprises versus nichols case from the virginia supreme court and his project that was my case back in one thousand nine hundred four and involved resident in a nursing home was on a pureed diet and they gave the gentleman a hotdog and he choked and we argued that they didn't have an expert  courts said you don't need an expert to know that you don't give somebody on a purely diet a hot dog that was a very limited exception all the cases that have followed that case say you need an expert unless it's something so obvious like giving a patient five times the amount of medication it was prescribed or something of that nature terms of medical medically beneficiary treatment for mr mr banks so i think in dealing with the pendent state law negligence claims your honor i think you can hang your hat one into one twenty point one and his admission in the second many complained that he doesn't have an expert that's our position on that but with respect to the underlying merits of the case the only evidentiary record before the court is the undisputed statement of facts that were submitted by dr gore and nurse smith and which were adopted in judge hilton's opinion he sets essentially doxil the undisputed facts as a basis for his opinion and those facts are with respect to the neuro console that dr gore evaluated mr banks himself logical examination which was normal and he determined that what mr banks needed was to be followed for four months by the that the actual position is in his pod or his unit and if there were any problems we can reevaluate and consider neurological cessna referral and that never apparently occurred that there were problems with regard to the hep c aspect and the kidney stone aspect there is evidence in the record doctor board planes that are bony which is a direct acting anti viral duct surgery or something inductive or explains that that really wasn't true there was no recommendation for that and then with respect to her smith she of course says i have nothing to do with dialysis dialysis is actually provided by an independent contractor in that the  the record if you look at the dialysis documents the ones that document that the dialysis was terminated thirty minutes early because the water shut down at a one forty two and a one forty three those documents are from an independent contractor they're not from the  c they're not from nurse smith her name's not even on that so her position is i had nothing to do with it that alice's it's provided by an independent contractor and the reason i have a sizable this your honor is on the merits of the case the facts before this court which is the undisputed facts in the summary judgment motion as adopted by judge hilton in his opinion of was the date of his opinion i submit that there's there's no way that a jury could find involved a family practice doctor working in the north carolina department of corrections a prisoner came in who had congestive heart failure based on a diagnosis from a cardiologist and the family practice doctor who create constitutional claims so under that light see and the facts of the case we submit that there is ample evidence and the only evidence in the case is that there was no deliberate indifference to mr banks doctor on why did you have you said that following and see what happens but three separate times in the end is not just the same position but different physicians say this man and these are neurological doctors disagreement with a cardiologist was deemed to be medical judgment and this court found that's not a constitutional issue so you can actually i want to clarify because i'm not sure that now i'm not sure i understand your argument on the merits i thought your argument on the merits was not about causation i thought that goes to the state malpractise claim but i thought your argument on the merits of the one thousand need to reclaim was causation or not i don't care not like that causation or not is not relevant what matters is that this doctor exercise judgment and that's not going to rise above the level of deliberate indifference and if there was causation but am i misunderstanding that is your argument depend on this causation point absolutely one thousand your honor the are we giving you start take it i tend to you it's not enough to say normal case you could say well i did all i could do in terms of that but here you have a physician who was not the primary care physician if the authorities actually  were actually you know the counselor simply for the council to get for me he deferred he did an assessment said let's follow him for four months and if anything happens when do serial examinations we can revisit what happened was another physician say to me is it not after that it please the court i have a few quick points on about your honor first clearly there are issues of fact that still need to be determined here in this case and therefore this case must go back to the district court who only gave mr banks only a one sentence resolution for his deliberate indifference claim that is clearly not a sufficient analysis to support a summary judgment ruling secondly defendants have conceded that fair notice is the standard here the complaint and the second amended complaint both under the established liberal construction standard and the case of lowery mr banks alleged broad constitutional violations which would allow this court to up in applying liberal construction to to allow m are that mr banks was denied medication multiple times you know it's a question of course whether deliberate whether deliberately different those were his allegations but the question is what what is left for a jury to try a particular perspective this issue of a concussion if you accept meet the standard of deliberate indifference because of what are the facts in the record that would allow a jury to find that dr gore knew subjectively that what he was doing would put mr banks and in excessive risk of harm that it was not in fact the case that dr gordon believed you could wait a couple of months and defer treatment in an exercise of his medical judgment which may have been wrong may even have been negligent but for deliberate indifference you have to show he was subjectively aware like i know this is the long thing to do and i'm just doing it anyway maybe because pitching so what's the what's the what's the record evidence from which a jury could make that one based on the fact that there were repeated and repeated instances of mr banks requesting then everybody has a deliberate indifference claim and this is supposed to be pretty narrow what the deliberate and different standard as you mentioned your honor it doesn't require intent it requires a reckless disregard for the health of the enemy so no i don't  think so it requires that you have subjective awareness and sometimes if it's one thousand percent obvious you can infer the person must have been aware but you need that subjective awareness of risk so where is a jury finding that here within the grievances your honor mr banks again was presenting with a concussion he went to the medical unit stating that he had fallen on a metal bench and that he had caught that fall basically with his head he was bleeding from his head he was complaining of not vomiting hearing loss dizziness all symptoms of a concussion and to train medical professionals such as the defendants you know when a person is presenting with a serious with a head wound and symptoms that you know would lead somebody to think one maybe this man is suffering from a head injury the staff should have realized that mr banks had a concussion and he was actually diagnosed with a concussion later on and still he was not provided with tri i'm like just in most cases the lone wolf lone person crying in the forest you have three independent physicians who must have made a diagnosis did things clinically saw him and said he needs a console and the point is he should be making is that that long after the onset was just a fall and you're still symptomatic is important you get it did you say that and you know as a juror could find that this deliberately indifference and say you know at this first deliberately indifferent what's actually unclear from the record your honor on the relation between what defendants describe as the independent consultant within the prison who administer the dialysis but once you have nurse on the record saying i had nothing to do with as i'm asking is there any contrary evidence in the record that would allow could a jury say well she said that but x and i think x is more persuasive what's the x yes your honor and that nurse smith was the head nurse within the facility so she should have had