book please the court my name is but in new york and i represent the appellant dad the lawyer who is the plaintiff at the district court i have reserved five minutes for rebuttal time mr de lauder was diagnosed with rheumatoid arthritis at the age of two i met mr the water he's a forty three year old man and as the record shows he's about five feet tall weighs about one hundred pounds he has this rheumatoid arthritis is a permanent congenital condition that he will live with his entire life and in two thousand and eleven it was known by the defendants that he needed a hip replacement in two thousand and there's a motion to supplement the record that still pending with the court yes or what's your position on that motion i believe that the position was taken that it was not opposed at the time that record is i think not relevant to the extent that in two thousand eleven we already know that surgery was not going forward because but just to be clear that may be or may not be relevant but do i understand correctly then that as of january seventeenth he should quote understood and agreed with the treatment plan going forward i think that there is some dispute about what what occurred at that time but if as far as supplementing the record that would be something we we would not oppose at this going to be released in twenty thirty one he has no possibility of parole and so if he had all the money in the world could hear arrange for the surgery him self without the fear of prisons or the texas department i think says if the  department because in two thousand and eleven dr nupur was ready willing and able to do the surgery and he did not do it because he was told that it would not be paid so it's a money thing i mean it's because mississippi has to pay for it that that's what this record reflects ok well the reason i asked about the motion to supplement what it appears to reflect is your client's own medical records april and therefore was not able to do the surgery at that moment and then in january of seventeen the doctor talked to him again about the surgery and encouraged a different kind of protocol to which your client agreed but that's not going to figure out is  seventeen record he is in jail but expects to be released in the next five years if all goes as planned would be fair to say that he apparently told the doctor that he was going to be leaving five years it is very difficult to imagine that being the case that that medical record is very confusing and i guess we're also say that there is a pattern of surgery being scheduled and then being counseled at the last minute as reflected in this record  including as recently as yesterday after the appellate brief was filed for this case the state said hey we're going to schedule it for october first the day before oral argument less than a week ago again the surgery was canceled without any specific explanation and he still wants and needs a surgery yes here and he still can't get it without mississippi paying for it that's correct so if he were released tomorrow he wouldn't be able to from a financial standpoint i'm i'm not entirely sure what the what his specific financial standpoint would be he's certainly informal he is as permanent disability there may be a medication or some other some other paper but but that is the issue here that's been the issue as reflected in the record since the fall of two thousand and eleven i guess i'm wondering so you have the money issue but you also have i mean you can't just walk out of prison and head over to the hospital and get the treatment you want the prison has to accommodate that mean you're not a free person to go get the medical care you want is that an issue here that the sort of cooperation aspect of it now the words if i said look i've got the money i want my surgery but you've got to let me out to go get it is that piece there is certainly an issue with for example you'll see that the record shows that there was of course surgery scheduled not to over a two thousand and eleven and then nothing happens for all of two thousand and twelve no one has pointed to anything that happens in two thousand and twelve until january of two thousand and thirteen there's a complaint that mr de lauder filed a better call complaint saying hey i still need this surgery so i think that that record certainly suggests that he is at the the mercy of the administrators to be able to get out and get the medical care that he needs he certainly cannot do aspects to this ok so we also have an issue i've qualified immunity dealing with the past so we've got the future peace which is the injunctive relief and then we've got the past and the qualified immunity question and we asked you to take a look at the question of how  published opinion factors into this whole issue of putting the administrators on and doctors are notice of what they're supposed to do to comply or not violate the constitution  case that the court cited that specifically talks about the quote that it has is that we must be able to point to controlling authority or a robust consensus a persuasive authority that defines the contours of the right in question with a high degree of particularities and that this does not mean the case directly on point is required and in cooper this court discussed the all kid case which was  from the united states supreme court which really was more about one extreme where the ninth circuit had been overly general in defining the right that was violated there it was essentially violated the fourth amendment and it's sort of goes into the broad historical assertion of what the fourth amendment meant and and so that opinion was was one extreme on the other in the  case i would cite to the court as another case from the united states supreme court that is still good law it came before a kid and did not call this into question but where they made it clear that officials can still be on notice that their conduct violates established law even in novel facts circumstances and that really the the touchstone of the analysis for whether right is clearly established is fair warning to the official  whether the state at the time gave for or warning mr york i hate to interrupt you but the just judge hands point was we said as i understand it correct me if i'm wrong in footnote that unpublished opinions cannot constitute clearly established law for purposes of qualified immunity is that the law of the circuit or is there some nuance that you want to tell us about because it seems to me again correct me if i'm wrong in your point unpublished case law it would serve to put  point i'd i have not found cases that say that that is a bright line rule that that unpublished case law as a matter of law is is never sufficient i think that in the snow is so do you would you agree with me that simply the statement that a delay in medical care that is deliberately indifferent violates the eighth amendment that's not specific enough to put someone notice on notice or would you disagree with that i would disagree with that  i think that it's certainly it's well how's a different from the ninth circuit saying the fourth amendment prohibits unreasonable searches and seizures just a general statement of law the reason i would push back on that your honor is that this court has  cited that as being sufficient in in the past easter v powell four six seven thirty four five nine is the cite for that one one of the facts in that case so it's specifically the know that someone is in pain and we've said that repeatedly i also wonder in cooper versus brown what they actually did was affirm the denial of qualified immunity and the finite in question actually says because it isn't publish it does not constitute clearly established law but it aptly illustrates the established right and then goes on to describe it as supportive of the notion of denying qualified immunity so i think what this is for tat perhaps saying is it can't establish the constitutional occurred here your honor i i would agree with that i think that that is there are are numerous cases that are published that do discuss this deliberate indifference standard in the context of the delay or denial of medical care and best articulation of the allegations in this case against him for for an eighth amendment violation because what i imagine the analysis has to be is after i understand your allegations i have to take them is true and then i have to look at the case law and see well was there clearly that would have put him on notice that doing these things if he did them constitute an item in violation so just help me what's your best articulation for what mr hatton supposed to have done mr houghton the record reflects had the ability to approve and direct mr de lauder's medical care to see specialists and to provide to make sure that the specialized care he needed was carried forward this record going back show delivered in deliberate indifference i understand your allegations are deliberate indifference but give me the allegations that amount to deliberate indifference on mr houghton's part that they knew in two thousand and eleven that he had a failed hip that because of that specifically the medical judgment here and a discos two that they did not follow the medical judgment in this case the medical judgment two thousand and eleven was this man needs a hip replacement and in fact he needs reconstructive surgery because the failure of his hip replacement has already caused additional damage and that since two thousand and eleven there has been no surgery provided for and there's and hunters in ewing pain yes that is correct it the face of in the face of factor in the face of somebody else's opinion that are swiss so bad that it constitutes liberal indifference and not merely a disagreement about medical treatment or what is mr hatton supposed to have done that is so bad that it goes beyond a disagreement about houghton had knowledge that there was a very serious medical condition which is the finding of the district court that has gone uncontested that this condition was deteriorating had already  and is continuing to cole's pain to mr hatton that could ultimately lead to his being paralyzed and this happened the guy that could authorize or not authorize the surgery and i think th please answer the question mr hadden on this record it shows that he was the medical administrator for the prison and that he approved the transportation of in the medical treatment so is he the guy with the power to make it like today if he's still in that role is he the guy that can make it happen tomorrow i've heard there about based on this record i think that the court could certainly find that said that he was told by the doctor that they wouldn't pay that's the sworn testimony first hand knowledge from dr perry says alan is not an issue ok i can never we do not know why dr pepper refusing to do it because he's got it he's in an economy complex you know it's a complex surgery very complex so is that caused by the seven year delay no it's called by the fact that this gentleman has root toward arthritis just to get money but i believe a respectable surgeon with do what every surgeon in this case has done and so i'm reluctant to give there i'm not saying the surgeon that universe alabama won't do it i don't know what he's going to do you're going into what somebody else has already done and when you've got some of them out house is going to collapse on someone's head then you've got to do something and this notion that well it's hard it's ok i mean that's medical judgment clearly these surgeons don't leave the house ready to collapse or they would have you indifference you know what's what's the story that shows he's deliberately indifferent so what's the big could you answer that for me i know it's your client but you know what what what's what is he supposed to have done that amounted to deliberate indifference to this person's medical needs i do not know we're not going to your surgery because it's too expensive i don't believe so you know that's not a record so what is what is your client alleged to have done evidently refuted is it is it alleged they refused to order the surgery  i mean the fact that one person says something and other person says something else is not a basis for a matter of law that's what that's a that's a really that's a fact question but it doesn't have to be tr it's down to this issue of the surgery and so it may be that if we send it back the record you're speaking of that you say that you very you know accurately told us it's not in the record might support that you all of tried and just not been able to and that's a different question but the case we're dealing with we're back in time is an alleged refusal based upon a a decision not to pay for it and i will say i'm not saying that happened here it wouldn't be the first time i've heard that that they don't want to pay for something we get prisoner cases a lot for somebody needs medical treatment and the prison doesn't want to pay for it so that is not a shocking thought that that could happen so how do we deal with that piece of this case i mean maybe the future ya'll are doing everything you can and that's what the record would show if we sent back for example the injunction or something like that but on a qualified immunity the point in time we're looking at is twenty eleven never says they won't pay me perry says we will or that's not an issue or whatever that means what do we do with that the point of qualified immunity is to avoid those kind of expenses that would go into sorting all of that out and the plaintiff has not alleged violation of clearly established law here you know it's clearly a stab sit you have to give necessary medical care for serious medical conditions which he which he can't just leave somebody in pain you know this five foot one hundred pound guy just lying there in agony and so that is clear to the extent we need some feeling out of the established right as a cooper suggests we have all of this unpublished case law that seems very very close to the matter at hand again assuming that happened wouldn't pay for the surgery if he would pay for it while fine as a different story but that's what we have the fact is she won right now in fact issues can in fact prevent qualified immunity from going forward that's very critical point so we don't just believe the state on everything ok martin so explain i still haven't heard what the allegation is with respect to mr hatton isn't that there maybe a fact issue with respect to a bunch of other people but where's the fact issue with respect to mr houghton a student under all of her is that he refused to or allegedly refused to order medical treatment that can't possibly be enough to show a deliberate indifference claim  the record reflects the mr gloucester's own testimony that there i'm sorry michael happened is the one that provided got him to the outside providers so where would i find that in the record that is relevant to the economic in other words does the at the moment require the state to provide the gold plated services that the richest person could afford or was it some sort of middle standard reasonable medical care is that the dispute that the state was willing to pay x they just weren't willing to pay why i don't believe the other words there's clearly a fact it's viewed that's what i think john changes getting to what i'm asking is is is it a fact this view that actually  not go back to this i think is the complexity i don't think there's an amount of money that's going to sway a surgeon one way or another they're having open this man up and fix something that was done twenty five years ago and that's very difficult  that can sign off or not sour or agree to refuse let's say forget the issue that this is complicated let's say he needed surgery this very standard but it's very much needed and hatton and  somebody at the prison has to authorize that is that happen or not not more you are ok but at the time so that's the decision it's not just so if the decision would be putting aside whether the surgeon would do it i say the surgeon ready willing and able and the person with the decision maker says no i'm just not going to let him do it that could be an eighth amendment violation that could be and happens the guy right so this all matter is this issue of was it cost was it  we can determine what the decision was before mr houghton let's say let's say we accept the allegation that he did not order a particular surgery where's the due information the record we were we can use to about what the circuits could do well what if what if there's just a robust consensus of opinion on the circuits with respect to particular issue that's specific enough to put someone on notice could non self clearly establish law and i believe that's where this court's own rules dictate if it's that important it should be published of rule forty seven point five doesn't that kind of against you mean the fact that something is so established that it's unpublished in late that the court's decision not to publish was a correct one to my mind that cuts against you because the law is so well established now we don't need  intitled to know these are the boundaries within which i can work with i go beyond that i have personal liability so it's important enough that they need if it's a shift in the batteries they need to know that i don't think anybody disagrees with that question is haven't talked about which is the injunctive relief you would agree that the immunity doesn't exist on the and john differently ok so we still have to deal with the fact that the court just sort of granted that immunity to the injunctive relief when we still have a guy who doesn't have the surgery for whatever reason and maybe we need more factual development or that maybe he'll get get it from alabama once they read reviews medical records or whatever happens but we still have this guy who does who need screening places to determine if injunctive relief is available you don't look at the marriage you look and see if it's available here district judge or the magistrate determined there's no cost you should violation well there's no constitutional violation you can't do a lot of symptomatically he is the one who made the initial referral and i say he made referrals according to the medical records a different doctor a doctor mclean is the war on who end up believe it at that point is no further miles and he's made three different referrals or requests for outside specialty consultations once he makes that referral and he gets t constitutional violation that he committed at the time during that time and his affidavit affidavit in their motion all demonstrate specialty care is not something that the troubled by the fact that this surgery is still lingering on all these years later but that's a separate question getting back to the qualified immunity what did dr what could doctor would all have done differently put aside whatever constitutional violation there is what could just as a that what could he if you're a general practitioner and your patient needs intricate surgery that all across the country they're having trouble finding what are you supposed to do you can do the surgery be malpractise to do it right so what is dr wood all supposed to do period regardless of what standard it meets or doesn't mean just as a doctor what is he supposed to do differently than he did well so in his affidavit he states that he h ad a position of authority to approve or disapprove the record will show that he was the one who had to approve referrals from the prison records for forty eight  lawyer's favor that certainly could support a conclusion that he had the ability to make sure that these consulates took place so there are big delays in the administration of care that could be attributed and this is not part of the summary judgment record but it is part of the record on appeal record tonight one is an affidavit where mr lauder states that on january second twenty fifteen the doctor told him he was withholding pain medication it would only give him tylenol because of the counsel and the complexity of this case in that he did attempt to amend his complaint but it was obviously too late at least obvious to an attorney but you know as a prisoner he pees sued the guy that he goes to see the doctor that the people that he knows of he mr de lauder doesn't receive information about the decisions covering his medical care i'm i told him on friday that he was not going to be able to get the surgery so there are limits obvious  i don't believe so that certainly did not occur until this appeal had already occurred and by the time you haven't filed another motion to supplement with something else that's that's correct when did you get in this case i got in this case i believe august of twenty twenty eight hundred so it was expedited submitted for expedited appeal with up you know i had a lot of time to research medical records and whatever you're running around trying to this back and counsel report in the district court we would get a more robust development of facts it might lean in favor of mr daughter yes your honor and to this specifically this issue of who had what authority to do to do what i think that you know if an attorney had been there to help develop that record which is a complex issue specifically in light of these immunity issues we would have a much clearer picture there may be other defendants who would be appropriate and i and at the district court would certainly would