rhodes on behalf of appellant carl gordon from two thousand and eight until twenty fifteen carl gordon was categorically excluded by virginia prison policy from treatment for his hepatitis c for the first six years from two thousand and eight to twenty fourteen he was categorically excluded from treatment because he was parole eligible on an annual basis and then for an additional year he was categorically excluded from treatment because the defendants here suspended all care and treatment for hepatitis c across the entire virginia prison system now defendants make little attempt to defend those unconstitutional policies on their merits instead showing it and that primarily argue that they should escape liability for implementing those unconstitutional policies because they claim they either were not subjectively aware that gordon himself was being excluded from hepatitis c treatment by those policies or alternatively they claim they were not personally involved in the decision to deny him treatment respectfully we submit that those arguments are the lies by the record or the very least that they release disputed issues of material fact that must be decided by a jury trial and not by the district court that summary judgment as the seventh circuit held on strikingly similar facts in roe versus l yeah a jury could readily conclude that by adopting policies that categorically excluded inmates from needed medical treatment showing in amman that demonstrated deliberate indifference to gordon's serious medical needs and thereby violated the eighth amendment to begin with the subjective awareness issue or the subjective indifference test showing an eminent argue that the subjective indifference requirement cannot be met here because they claim they did not specifically know that gordon himself needed medical treatment for his hepatitis c and was being excluded for that treatment by their prison policies but the eighth amendment standard does not require showing that a prison official knows which specific inmate will be harmed by his actions instead as the united states supreme court said in farmer it requires showing only that the prison official subjectively quote knows of and disregards an excessive risk to inmate health or safety and quotation it doesn't require knowledge that a specific inmate will be harmed by those policies and that for good reason under showing interpretation the governor of virginia could declare on a categorical basis that prison simply would not treat cancer or would not treat broken legs any more and as long as the governor of virginia ovoid knowing which specific prisoners in his prisons had cancer or had a broken leg under defendant's theory there would be no eighth amendment violation we submit there is no court that it dots that extreme view of the eighth amendment test and that supreme court cases like farmer versus  brennan and this court's decisions like ico versus shreve reject that understanding of the a and then in addition of course there's the seven circuits decision in roe vs oh yeah which we submit does set out the correct standard under the supreme court's precedent in these specific circumstances as the seventh circuit said in roe vs the subjective and different standard is met where as here prison officials know that prisoners will be categorically excluded from treatment for non medical reason was being excluded from treatment because of the policies the doctor oh yeah implemented as far as subjective knowledge goes the decision oh yeah appears to be on all fours with the decision here nevertheless the seventh circuit sad i adopted and enforced a policy that categorically excluded roe from treatment even though he didn't know anything about roe specifically he could still be held liable and had still violated the eighth amendment subjective and different standard or at least a jury could reasonably own declaration or he says i do not make medical judgments about prisoners i don't make medical decisions about particular prisoners in virginia health system in other words when i met adopted that policy he wasn't saying i think that gordon himself and other individual prisoners like him shouldn't receive hegel aged interferon therapy instead he was adopting a broad based policy that applied across the entire virginia prison system and that prevented the actual treating physicians the physicians who were seeing gordon on a regular basis from prescribing for gordon whatever treatment they thought were in his best interest to be clear we would not have a plain treating physician who actually saw  in prison said i've looked at your case and i don't think that particularly to interfere on therapy would be good for you but that's not what happened here and its decision was not based on an individual lies medical judgment about  instead what showing an eminent try to say is that they could reasonably have relied on the judgment of those prison doctors who didn't attempt to order any further treatment for gord but the problem with that argument your honor is that the policies that shelling in which applied to those prison doctors and which those prison doctors were bound by actually prohibited those doctors from ordering the specific treatment at issue here and so there was simply no medical judgment by the treating doctors to which shelling it and that could have deferred we think that's just like this court's decision ico where this court said when there is no medical opinion by the actually treating personnel then other personnel can't say they deferred to that medical opinion here showing an eminent adopted policies that prevented exactly that kind of medical judgment from taking place now on the personal involvement issue with respect to schilling we think his personal involvement here rest two points and we think that a jury could reasonably find that he was personally involved in the decision to deny gordon treatment for two reasons first as the director of the health services unit in the virginia department of corrections shilling was personally the official with the authority and the responsibility to review all pop practices and procedures within the prison health care system in the and to ensure that those practices and policies complied with federal law despite that authority despite that obligation showing took no action to revise the under constitutional pearl of the ability policy here you took no action to make that policy comport with the constitution of the entire period from two thousand and eight until twenty second of the first category of personal development then is showing a personal decision not to revise the unconstitutional policy that issue the second the category of personal involvement of course is showing as own personal denial of the repeated grievances that gordon brought complaining about the fact that he was not receiving appropriate hepatitis c treatment that again constitutes personal involvement by shelling in the denial treat as to and that we again think that the personal involvement in the record is more than sufficient for a jury when presented with these claims to reasonably find a doctor and that was personally involved in the denial of treatment again that's on two bases first for march thirteen when dr ammon that became the chief or ginia  scuse me the chief physician of the virginia health care system in the prisons he took no action for eleven months to revise the unconstitutional parole eligibility policy it's clear that you had the authority to do that you did eventually do that in february twenty four teen but for those first eleven months he took no action and we think that a jury could find him liable for that inaction second and much more markedly of course and that was the physician who person the chief physician who personally implemented the policy of suspending all hepatitis c care and treatment in the virginia system for an entire year from february twenty fourth dean until february twenty fifth and that on its face we submit constitutes personal involvement in the denial of treatment knight who personally adopted the policy that categorically excluded gordon from treatment from february twenty fourteen to february twenty fifth but it's quite clear from the record that in fact that suspension of treatment did fact mr gordon can self because that suspension of treatment is what schilling cites in his grievance response at j one thirty eight to say that no we can't give you treatment for hepatitis c because the hepatitis c guidelines have been suspended now with respect to the remaining issues your honor first there's the official capacity question the defendant's right is on that we think from the supreme court's decision in lewis versus clark which follows on  previous decisions in favor versus mellow kentucky versus graham and similar cases the question for a personal capacity suit versus an official capacity suit is not the capacity in which the officer acted in other words by adopting an official policy instead it's the capacity in which the plaintiff seeks relief which here is the individual capacity gordon is seeking damages from shelling and from eminent personally and he's not seeking relief from the state of virginia in any way with respect to the qualified immunity issue we submit that that can be left to the district court to decide on remand however if this court is inclined to address the issue we think that the seven circuits decision in roe vs oh yeah explains exactly why under again strikingly similar fact qualified immunity is not warranted here and defendant say nothing in their brief to respond to the qualified immunity analysis in roe vs which again we think is directly on point finally with respect to the additional issues that the court asked us to brief the court asked us to respond to whether shelling in fact had the authority to make an exception or to revise the virginia treatment guidelines we think that question is answered by the virginia department of corrections operating procedures that we cite in our brief which say that the health services director shall annually review and revise all practices and procedures in the virginia prison health care system defendants don't can and finally in any event we submit that even if showing didn't have the authority to revise those policies and self which again the prison procedures say that he did but even if he didn't state law can't be a defense to the federal law cause of action under section one thousand nine hundred three for the violation of federal constitutional rights the supremacy clause guarantees a caravan the grounds to exactly judge again and happy to respond to any further could still get that that's correct your honor we think both avenues are open to this court we think this court could address it as a matter of law and simply follow the seventh circuit and holding that again on strikingly similar facts qualified immunity is not warranted however i recognize that this court office of the attorney general on behalf of your apple lisa mr skilling and dr i have the net at issue in this case is whether the district court erred by determining on the basis though the factual record before at that there was no triable issue of fact with regard with respect to whether these two prison administrators who were not directly involved in this inmate's care could nonetheless be subjected to liability under the eighth amendment as to mr skilling he is not a physician he does have general oversight o d o c policies but he was never given any information relative to those policies or relative to the grievances that came before him that would have alerted him to the fact that there was some growth in adequacy and the medical care that w step that's not in the record mr gordon produced no evidence to the district court that would prove that inference that the reason he wasn't being provided with hepatitis c treatments was because he was poor eligible it's not documented in his to the dirt if he's trying to claim injury that's causally related to a policy he needs to show the policy was actually fighting him and he didn't come forward with that evidence before the district court and that's an element of what is  introductory paragraph and he wasn't treated it wasn't treated he didn't get medication for a barn he did not get medication that's right and for several years and there's a policy that those suffering from that disorder are not eligible for treatment if they're poor old algy that's correct and other inmates however are also not eligible for treatment if their lab work for example doesn't meet certain criteria in the policy so your defense is there's no nexus correct well why would not just be a jury question because we came before the court this is there is a nexus with if there is an act as you admit there's a constitutional violation an eye on you basically to see whether or not the disease is progressing this disease spontaneously resolves in a large percentage of the population that's infected with it it's not like having your arm cut off and bleeding out in your cell i mean it is a does these that can be monitored have  work done to see if it is progressing to a level at which maybe curative treatment becomes required and that's exactly what they did with this particular inmate they monitored there's medicine to record it it was in the last stage of yours i'm not until after he what they actually knew or what mr skilling knew mr eminent didn't know any of it what mr skilling knew was that he was receiving monitoring by physician he knew that he had received lab testing and that the results of his labs were actually getting better year to year to mr gordon this is up to your doctors at the facility talk to your doctors at the facility and they make decisions regarding your treatment i don't or  have to do with those dr ammann at explain that in his affidavit he said if there's a chance somebody could be immediately released so parole eligible with a potential release date then they could be released from custody before they have finished the course of medications that are required were at the time it's different now two thousand and nineteen is not two thousand and four but the medications at the time you needed twelve to twenty four months to complete the entire course of medications if you stopped on the medications in the middle your body would be resistant to them and you couldn't get them in the future so d o c is trying to protect the best interests and we're not in maybe at all if we can give him a full treatment for  a long time when they come due to the nature of your offense those things like that and the nature of things will never change no matter what your good behavior is we can have it both ways coming in and in these cases where people come with perfect for the policy and like i said it's different now but because of the link the treatment that was required by those early medic medications that was the justification for the policy happening post released and like you do it never was a you what they do it last week and give your report i'm just trying to get a job working you just know you need to come here make sure that you can give them the medicine they need to medication if they need to live and we want to not give it to them on the hope that they make it out before we need to give it to you know that right twisted as laid out in the justification for the policy and that justification is in evidence what the department of corrections was trying to do was identify those inmates who were best able and best needed to be helped by those medications immediately and that is what they did with that policy also it was truly up but they were monitored and there's no exception to the policy and when i've been asked for he just said mr schilling had the had the authority to authorize deviations and changes to the policy if mr schilling had that authorization then the policy doesn't suffer from the defect that he's claiming get a known trick but the facts also show that he was being monitored that his lots were being drawn that he had access to medical care and that his lab actually improving how of you made a policy therefore you're going to be liable in your individual capacity for damages because of the policy because i believe that the elia decision that has been cited by counsel and relied upon so heavily in th appeal is infected with several errors not the least of which is that it ignores controlling the united states supreme court precedent on the context of individual liability and when a policy has been out oh it is absolutely everything that we do and we agree that just because you are you in your official position when you do something that doesn't instill ate you from potential individual liability absolutely that's the law and we don't contest that but there  the like case the farmer was given lip service but it said you have to have actual subjective indifference to a known risk of harm to the and main former aside from setting for that general subject of deliber indifference standard also said these deliberate indifference standard that has been adopted in the context of you municipal liability cases canton and mon el and those cases the deliberate indifference standard for m liability cases does not apply to individual liability claims against prison officials because that is an objective standard and that is important because so many of the cases that i've talked about your just your general involvement  civil liability cases the cases that talk about you were just involved in faulty training you didn't train your officers enough those are municipal liability cases that objective standard means you were just involved in the policy somehow therefore you're liable that was rejected explicitly inform and then when you turn to ashcroft be it call this a case is often cited but not often to court to delve into what the opinion was  about it paul you had a suspected terrorist who was detained after nine eleven he was released from custody he then subsequently filed suit against the u s attorney general and the f b i director and he said he challenged he sued of those two defendants because they quote enacted unconstitutional policies that allowed that were discriminated against me on the basis of my race ethnic origin exit or so he sued the a g and the f director because he said they created an unconstitutional policy and it all the united states supreme court said that didn't even cross the plausibility threshold we didn't get to discovery because just making a policy involved in the creation of a policy is not enough to show sufficient personal involvement to trigger individual liability now it ball is not even cited in the seventh circuit ally opinion much less addressed or otherwise discussed so i would s you and so you must implicitly acknowledge it as if the second seven circuit case is right you've got a problem not necessarily because i think it's distinguishable on other grounds and while at the seventh circuit said was we have a policy here that basically is facially awful because it doesn't allow for any medical discretion at the part of the individuals who are implementing the policy the name defendant was a doctor and the doctor said yeah i knew that this wasn't basically in accord with the medical standard of care now and that evidence is not here before the court my opposing counsel is taking the position that this policy is not white get that there could have been exceptions created at some point  and particularly with respect to mr schilling since he's not a doctor a policy that you know deviates from the medical standard of care is not something that's appropriately impute appeal to him in terms of determining the level of his subjective and difference so i think that the the defendant the party the allegations the evidence were different and elia than what we have before the court here and turning now to the question of qualified immunity i would like to touch on that very when determining whether or not a right is clearly established at the time of the alleged misconduct in this case there was no clearly established right to receive curative medication for hepatitis c at the time of the alleged misconduct in this case there was no clearly established right to receive three doctor's visits which was what all the chronic care for that complaints were about as opposed to just access to medical services and i would  of the commissioner of the d p h t s whether she was entitled to qualified immunity because she had failed to have policies and take steps and measures to ensure that mentally ill inmates were transferred from local jails or from corrections departments into a mental hospital basically and what this court said was that unless the conduct of the official or supervisor automatically end alone meaning per se violates the constitution the officials  hepatitis c who are being monitored by physicians at the institution and having routine laboratory work done are not per se being subjected to a constitutional risk of harm so for that reason  in cases where hepatitis c and claims that he was being unconstitutional he treated because he just received monitoring as opposed to being referred medication thinking it was very great develop a policy that says no one with a cancer what do you believe may not necessarily the point is the risk to life is the same it's the same risk i mean it's even worse because unfortunately many cancers that stage four we can't do than about them would help you and nurture and that would be a dignified passage into the other side a transition to death but here the person is like it's a glass wall and just will let go to take the pills take the medicine and we know what it's almost one hundred percent curable and use an old pro eligible you don't get it if something is soon to be just unbelievably inhumane about that and that's what the eighth amendment is for cruel and you from down you say there's no eighth amendment implication there no this is your position with us right yes because it's not just cruel and unusual it's cruel and unusual punishment there is a subjective element that must be  it's not rocket science or honor but it's also medical science and there was a medical justification provided for the policy neither one of these defendants were ever given a reason to try and decide whether or not an exception to that policy should be made for submitted in two thousand and thirteen did not contain any indication he was receiving inappropriate monitoring or lab work or treatment from the facilities there was nothing in that from which dr mr schilling who's not a doctor would have known to second guess even yes that general knowledge was there but you also have the justification for the policy from medical providers that he had no reason to second guess the thing money is enough for you that when you want to save money would have been enough reason if money was the reason thank you your honor is just a few points on our bottle i just like to begin by emphasizing again that this case is up here on the summary judgment standard and i think that the argument today is illustrated that there are indeed a number of disputed issues of material fact that require this case to immunity issue yes your honor and i'd be happy to address that directly on the qualified immunity issue again we think that the seven circuits analysis in roe vs how yeah is exactly correct and that on a material we would decline to reach the qualified very brief there are on a few of the points that the defendants raised first on the causation question they suggest that there is no evidence in the record to show that this policy in fact caused the exclusion of treatment here that caused borden to be excluded from treatment first your hon king pointed out there's the policy itself which clearly says that a inmate is excluded from treatment if he's parole eligible gordon falls within that class and we think that's evidence from which a jury could infer that the policy did indeed cause his exclusion second they suggest well there might be other reasons why he would have been excluded from treatment but if you look at joint appendix one thirty five one thirty six and one thirty seven in a grievance that gordon sets forth that's appealed all the way up to mr shelling gordon says repeatedly i have been denied hepatitis c treatment since two thousand and eight solely because i am eligible for parole once a year that's a j one thirty five one thirty six and one thirty seven and then a j one thirty eight shilling responds and he doesn't say no you were denied treatment because you have some other medical exclusion you were denied treatment because your doctors don't think this treatment is appropriate for you he says nothing whatsoever to respond to gordon's contention that he was denied h p v treatments only for that reason and instead he simply says quote there is no violation of policy procedure regarding this issue and quote we submit again a reasonable jury could infer from that that gordon was indeed denied treatment solely because he was paroled have a chance to elaborate further the reason that  that's certainly correct they could have brought forward either before the district court or before this court an argument that in fact as a matter of fact his treating doctors thought this was inappropriate for him all they've done is gesture that possibility which is enough to raise a jury question that's enough to get you to a jury trial but it's not enough to get you summary judgment and preclude a jury trial next defendant suggest that there was indeed a medical reason for the parole eligibility policy that because someone might be released on parole they might not be able to complete the treatment that argument was raised in value and the seventh circuit rejected it again on a materially indistinguishable policy and the reason for that is in the record here that is because as the policy itself states hepatitis c treatment can be completed within six to twelve months at six months if you have gina type two or three it's twelve months if you have gina type one or four well within the two year window that the policy chose as its exclusion period and in point of fact gordon himself had waived her role since two thousand and two it waived every single annual role hearing since two thousand and two that's in the record at j a one thirty five so in point of fact and moreover he waived his parole hearings well in advance of when the parole hearing would actually