as the defendants contend that it was caused by his diabetes however as a preliminary matter the cause of mr lies on his blindness is an inherently factual question that needs to be resolved by a jury and what evidence did your client submit that it was caused by glaucoma and not more than every six weeks and fall and however beginning in december of two thousand and eleven the defense delayed his back home appointments for a full six months and in the first appointment with dr teasley following the six month delay this unprecedented six months  she diagnosed as being legally blind in his left eye and made a notation on the same document that said again my plan was not followed at all and this particular she offer an opinion that in fact the blindness was caused by the clock by clock rather than diabetes she did not offer an opinion no your honor however my co counsel address that issue and this is particularly probative of the summary judgment stage in light of emergency room discharge paperwork that that a physician provided to the defendant's following one of his visits which stated that glaucoma can cause permanent loss of vision if not treated properly and emphasized that proper treatment includes regular follow up care with an ophthalmologist which he wasn't receiving the second piece of evidence i'd like to address is that on two consecutive occasions and in direct conflict with his optimal just explicit orders the defendant's deprive mr lazaro of a necessary post operative antibiotic vigor mo x following his absent treatments now after the first instance in october of two thousand and twelve mr was on zero wrote a letter and filed a grievance with defendant nudes and explained that he began to see a blur film in his vision as a result positioned to testify that that was the causation no your honor it's merely the we're not using mr as on his statement to in fact show causation but rather that very tight temporal between when he was deprived of the mocks and when he said subsequently develop this film in his vision that is sufficient to withstand summary judgment and it's this is particularly true in light of the fact that the same discharge paperwork that i previously mentioned from the r also explicitly stated that medications for glaucoma need to be taken exactly as directed which wasn't happening and i know most of the people who are going to get from doctors offices this day explain that i'm going to die unless i do exactly what i'm home i mean that's just kind of the nature of discharge paperwork isn't it that's not somebody testifying that in fact there was that kind of causative link in this case no your honor just merely provides context and notice to the defendants if somehow they weren't on notice by that point senate's were on notice as to exactly what type of harm could occur and i would know that the macy declaration does not even address the issue of viggo mox so opposing counsel will argue extensively about the may see declaration however asian wash is not due to come over treatment for glaucoma which may be addressing it indirectly is vision loss are directly tied to diabetes and effects of that disease and so far i haven't seen a whole lot in the record that counters that counsel yes so i will hold that question stop the clock you know the question go ahead so it's all right all right you just got the question  actually attach his medical records to his opposition but the second was his lack of declarations from trading up malicious however mr wasn't was extremely diligent in his efforts to comply with both of these procedural requirements however the lower court was an answer to his simple question of how to obtain declarations you actually rational question how do i know you gratian from my doctor so one possibility is that the lower court could have told mr lozano that he could depose dr the evidence that he had lodged into the record docket number thirty four which is the are fourteen zero eight and which the lower court lodged into the court record at docket number thirty five which is the earth eleven sixty one was she wasn't reviewing that on summary  moreover the procedural failings on the part of a pro se prisoner when combined with the voluminous medical records that mr lozano did lodge into the court record illustrate how his case presented exceptional circumstances it was both complex and likely to succeed on the merits and therefore mr was on a should have been appointed counsel courts determine complexity by looking at two things the nature of the claim itself but also the individual characteristics of the plaintiff mr was not his claim is complex because this court is specifically indicated that deliberate indifference claims that are by nature complex where they turn on complex medical questions of competing treatment regimens and causation and that's precisely the case here but it's also clear that the lower court abused its discretion in light of the similarly incarcerated plaintiff with no legal training and an eighth grade education as ill suited to defend his claim and likely met the standard for appointment of counsel but i'd also like to bring the court's attention to just some of the language from any one of mr lozano's repeated requests for counsel on one occasion he says i have an extremely low school level my worst being reading comprehension i respect fully request my request to a pro bono be allowed granted and on another occasion i cannot reply as i do not know what exact meaning is within as to how many such requests central district receives do i have any information no i don't know but i'm not an idea about how many pro bono lawyers are lined up to take these kinds of cases no but i do know that your honor that there is a program in the district court for appointment of counsel and there are plenty of young junior associate that law firms who would be very excited to take on him for a fee and that's how we get a lot of people yes your honor i'll finish out my time really quick just by pointing out that the cruel irony of this case is how despite its merits and mr lozano is undeniable diligence he was unable to withstand summary judgment because he fell victim to procedural pitfalls that he certainly would have avoided with any assistance from the court or with appointment of counsel we' with for the defendant's pelleas the basis for the court's judgment is stated on page three to for the record quote plaintiff has not rebutted dr maizes declaration that plane is loss of vision is not due to there's no obligation from a talk about the evidence they've certainly raised the issue so how can you say the issue has been waged and then when i've talked about why you want to talk about with regard to the issue that it's not like they haven't talked about it they didn't talk at all about the basis opposition and there is a contention made in the reply from the first time that the office i cited multiple cases holding that it's not so that it is part of the opposition but it's someplace else in the record the court has no obligation to look at it the opposition without stating or claims we disagreed a district court does not have to search a duty to search for evidence that would create a factual dispute but did i just record in the man seems to me though and i'll need to refresh my memory on bias but in this case there clearly was evidence that he talked about about how he had this doctor that he was the one who said i was going to my doctor and asking for these things i wasn't having to search a million pages try to find the one needle and then in that in a haystack do you have a case where it really is a procedural fault as to why that was not technically before the court so that case was one of them i guess i can cases wealth and also a proper case before you are really in this case he i understood you correctly from wrong that he actually filed these papers document well before we filed the motion for sorts of for some judgment which since plaintiff lodged documents the the record on appeal of the excerpts of record included several hundred pages of documents which they contend are the ones the way they got them however is plainest gave some documents at a deposition the plaintiff's counsel contacted us we provided them they didn't go to the court to see what the court got we don't know if that's what the court got that was their burden they didn't do it of part one very doubt about the authenticity of the documents after extension after extension after extension you never get an explanation on how to get a declaration by itself no he did file well first of all he didn't file a declaration himself prior to this you know how to do it the motion included declaration to declarations actually that example of how to do it and there is no procedure to compel somebody to prepare a declaration there's been contentions made that he should have been allowed a deposition where that would have been some explanation i mean saying that there is no procedure rather than telling him how to get a subpoena which is i think what the answer was but he got records that way that there is no proof no matter what the court could have said it wouldn't change the result because there is no procedure you can ask for a deposition or a counsel me ask you about there's the which is the no i think to me is the most important no from their perspective not following more of the language again my plan was not followed at all the incarcerated person here did ask for a subpoena for that witness correct  it right there he says this is the witness i want to hear from this is the witness that happened to have written that note that that i think is the strongest piece of evidence that they have in this case why wouldn't that be enough for the just report to know ok this note i must be important because this person or guy is asking for this doctor who wrote the know why wouldn't that be enough to least put the note before the district court procedure lee that's not what there was any reference to a particular note he said fit a person we have this assuming play in this case but let's go back again the district court didn't have any indication from the plaintiff despite a year and a half of time to do what if anything the doctors could have said relevant to the case issues about a deposition and whether that could have been done but some until it's one fifty five and third eleven thirty at eleven thirty for both get my three cases both of which relied on a declaration by a non treating doctor as a basis for summary judgment so you put all of this together and you look at the  and deadlines and deadlines always extensions you get all the time you could if you needed this one he was warned twice explicitly of the need to submit evidence our opposition to be of reply on the motion expressly pointed out the lack opposing counsel says that they were exceptional circumstances because this was a complex issue and because he wasn't articulate it often expresses claims that what you say about that a declaration in this case you know how to do it that's not the usual it's not because of lack of knowledge on his own declaration but well that's a lot different than someone else's but he knew how to do that because of that and i don't i don't think you she was whether he knew how to a very short time i do have one minute thank you so much in my very short time i just want to make two points first i want to begin by saying that the mr a lot of did lodge medical records and the lower court record and the lower court acknowledged these did alleged facts and explain the narrative is the narrative of his case and his claims in a pretty concrete manner and he was able to point to the six month delay in his treatment he was able to point to june two thousand and twelve which would have drawn the court's attention to looking for the appointment where dr teasley confirmed his diagnosis is legally blind so there were things as this court mentioned that the court could have specifically looked for rather than scouring through the record s but again your honor it's more that the court should have notified mr lozano that in order for these medical records to be considered they had to be attached to his deposition or i'm sorry to his opposition thank you so much thank you very much counsel this matter submitted again thanks to both sides for their argument this case