misapplied and missed set the a cruel date of his of his claims as well as the filing date in addition it also did not properly analyze and properly rule on the equitable tolly kargman at the very least mr side by ambulance to albany medical center because his condition had become pretty grave that is not the date however on which mr size received treatment that he should have received in the care of the effect but what wrongful act occurred after the th of september well your honor it is it is it a deliberate indifference claim it is if in fact the failure to act that is the issue and so wh arguing taking for treatment on september th and i didn't see him complaining of anything wrong that happened after and he was taken to get treatment and began getting treatment at the end of september and yet he is the treatment he should receive was the surgery that was the treatment that the defendants knew about and should have provided and did not provide to help what could they what could what could any of the defendants have done that they failed to do after september the th when the plaintiff was delivered to the hospital what they could have done before september th was provide him the treatment that they knew that he needed that's why that's why september t that the claim accrued but that is not even to the hospital army and that is not the date on which he actually received the treatment that they should have provided him i understand that there is no case squarely on point here but under the continuing violations doctrine the accrual date is extended to the date that the person receives the treatment that he should have received exactly my my understanding was the essence of his complaint was the leaving aside the question of of of negligence you have to show deliberate indifference don't you and and in order for that for for this to be actionable and i don't i don't see star even starting going back to december to september th at that point any any argument of deliberate indifference steps were being made competent doctors were looking at the situation that's way way earlier i'm trying to see how you get to get anywhere near the filing of the complaint three years before the filing of a complaint again because the reason for the delay in treatment the actual surgery and the transfusion was caused by the defendants in other words had they acted appropriately mr size would have been able to get the treatment and he did not do it even after he is hospitalized and transferred to the albany medical center that would sort of be a but for causation argument going back to any period of significant delay no matter how early it would be because the chain of events warrant would be triggered by that and and that would enable you to get to still that there was that the claim or the crew as of a later date as of the date that that treatment is actually provided that's the date so the deliberate indifference continues up until the treatment is provided that is our argument under the continuing and the evidence here was that mr sides filed his complaint not in september in early october right after he was his complaint was notarized and that notary date it's uncontested was  gave it to the prison officials right after he got it notarized but he also said he never submitted i think till early october he never mentioned the september day he said he admitted that he did not submit in september but that it was early october october st we argue for october st because that is early october and right after the date right after the notary date and it admittedly there is a discussion of october th but mr sides never admits that he  gave it to prison officials on october th and certainly of course there are no prison records here and as the supreme court realize recognize in houston be lax in the complaint was mailed them action and right  yes but there's no there are no prison record just a date he handed it to prison officials so that was the purpose of his deposition was to try to recreate that and so again earliest early it's october not not later th brief but and there is there is a the other side which is that he's not entitled to twenty four hour notary services the difference here and now there is a she was not required right well all the materials available to him indicated that in fact it was or at least he should try because he was also seeking pull him in every injunctive relief as part of his initial submission and so the prisoners handbook and the northern district pro se office also says you should have it notarized and submit it with a well as the person's own directives which require that he be provided with a notary within seventy two hours and in this case had he been provided no no prohibition on filing that in or right there is non but again equitable equitable tolling does not require that he show him that it's impossible only that you know he was misled or he was led to believe that he needed to do this the materials do say strongly suggests that i think a reasonable person especially a pro se would understand that way as a basis for equitable towing today that's correct your honor that the court said it was waived but in fact in the record mr sides made a submission saying that he could not file because his notary was delayed i thought that  that issue which is not repeated in our brief but yes the court did not reach that is you considering it way but clearly it was not i think it's page eight hundred and thirty two of the record where he notifies the court of the reason for the delay all right good morning may it please the court patrick woods on behalf of defendants i think it's probably best if i pick up on the equitable tolling point the suggestion in the reply brief and again here today that even if there was a mistake as to what the filing requirements were  that that would somehow rise to the level of the extraordinary circumstances required for equitable tolling is just not the law of this circuit in watson which is why did in our brief and in a number of other cases jenkins versus green at problem which is that in order to qualify for equitable tolling whatever it is has to have actually prevented the filing there is no requirement for a filing in federal court for a complaint that it be notarized that he if he was misled by materials at the prison makes available to them about their requirements for filing when you're seeking preliminary injunction why is it reasonable to you know isn't that extraordinary actually preventing him from filing in a effective way i would say no judge for a couple of reasons st is that if we were talking about the filing of the preliminary injunction maybe but we're not talking about the filing of the preliminary injunction paperwork we're talking about the filing of the complaint you could very well the filed the complaint and then filed  e paperwork two or three days later so i had the connection between those two simply doesn't exist but moreover if you look at his deposition testimony both sides have produced materials that are tone and not right that's correct that they don't discuss it in either decision and i don't think that prevents this court from reaching the question if it wants to maybe it changes the standard of review normally it would be abuse of discretion necessary or or required or even necessarily good practice raised judicial resources because we're in the same position to make the decision precisely judge in the court certainly has the power to do that if it wants to but i think it would be a tremendous waste of judicial time while i'm sure judge d'agostino would would say wonderful and very insightful things the record was fully developed below these issues were litigated three of them were not ruled on remind me again which are accru basis we have not picked a specific one i would think that it would be september st in our position here we've tried to be sort of his generous as possible for purposes of summary judgment as to what the latest accrual they could have been you know in your brief you don't really argue with that with the date of september th no judge that's that's the last state that any one of these defendants had any interaction and so we're really dealing with three days as to whether there should be equitable tolling for three days from september the th to october the st because construe any evidence in the light most favorable to the plaintiff october the st is the day when he handed it to prison authorities early in october correct judge so the question is whether he was delayed by sufficiently by equitable tolling for three days and issue that neither  judge nor the district court even addressed well i think there's a number of other issues because in order to even get to the accrual date of september the th don't know but i thought i thought you're prepared to argue the case on september th october the address now but they're pure questions of law there is a full record below and there's no reason that this court should have to send it back and bring it back up again which is undoubtedly will after there's a decision was absurd just to clarify the record said the district court the delay in receiving the medical records several in the middle of the statutory period did not qualify for equitable tolling because it couldn't have prevented filing because there was so much time but the argument we're hearing today was also presented i  have not argued that it's one preserved i'm not i'm actually not particularly familiar with where he believes the plaintiff argued it below but given the standard to which this court reviews process of missions we don't want to go down that road thank you deliberate indifference that's required and then there has to be an act of deliberate indifference within the statutory period i don't see a policy here there's really isn't evidence on this record that there's a policy there's a few times that he meets with different doctors or nurses where they either continue to monitor him or they provide him treatment he may not think that that's adequate treatment but that doesn't rise to the level of deliberate indifference similarly as judge carney i think was alluding to  the rule is that there has to be an act of deliberate indifference within the statutory period and there isn't one here there is there is no there really couldn't be to really use this in time or twenty eight but really sending him to the hospital isn't an act indifference getting more blood tests on september th isn't an act of indifference it seems to me that the last possible act of indifference by any defendant on this record really is is even further back in time so it's difficult to see how there is a policy that was a an appointment with pay only i know was cancelled that day and then it was rescheduled for several weeks later but they already had he had consented to surgery they were planning on surgery at that point but then there was this this period of delay so that arguably would be indifference at that point whoever whoever canceled the the appointment directors but whoever cancel the appointment isn't one of the  defendants in this case that's an unknown person who works at the department of corrections the evidence under budget evidence in this case is that none of these defendants even were aware that the appointment had been rescheduled at that time the only concrete date where there's something that could arguably even have been medical negligence is august th and the complaint was initially reviewed by the district court for purposes of determining whether it was frivolous as time board and the court didn't dismiss it precisely because the plaintiff said that the plaintiff asked for the notary on september the st and the district court thought that that was sufficient showing at that point of equitable tolling what changed between then and the time when the district court and granted summary judgment and didn't even consider the issue of the notary and my understanding and perhaps i'm misremembering the earlier order in the case but i thought that there were a number of issues as to what if the appropriate accrual date were that were also discussed in that footnote and i think that's part of what what carry forward maybe ultimately i don't think that it hinges on i don't think the outcome hinges on whether or not as a judge should have consent considered it later because it has no merit and this court can easily hold that there is whether or not he received the notary and there's no dispute that he had there was a delay in receiving the notary he didn't need the notary in order to file nor was the doc's directive for example that requires a notary service is particularly relevant here there are things that need to be filed that require and fifteen but it was delayed by this facility until the th so that is where he raises the issue that the court flags at the initial screening stage but then doesn't revisit  is maybe a bit much secondly or thirdly rather the record here was not fully developed this issue was out there at the very least there should have been a hearing perhaps even on questioning mr side just to what he relied upon and why he believed that he needed the notary to be reliant on northern districts across a manual or some other document with respect to the issue of the notary directive in the case which was in a recent case this court found that the failure to notify the arista plaintiffs that they had appeal rights was sufficient to cause equitable tolling even if there were other paths by which they could get that information for example there was some kind of a booklet that was sent to these arisa plaintiffs and that had that information but the specific notice was required by the federal regs and this court found that failure to provide that specific notice was in fact the reason for equitable tolling so that the reliance on the regulations is important because somebody in mr  scientist position is entitle to rely on the seventy two hour notice period with respect to the qualified excuse me the continuing violations issue of lack of policy i think what the defendants argue is that the defendants must have taken a particular affirmative act but in order to have continuing violence continuing violation but that's not the case it is the failure to act in the face of knowledge and in show mo for example where this court applied for the st time continuing violations to the th amendment context mr show mode the plaintiff in that case was paralyzed on one side and the facility was supposed to help him with his activities of daily living and did not do that that was the continuing violation but show most says that you have to have the existence of an ongoing policy of deliberate indifference correct the these needs in some not right that's correct so no knowledge so what would you rely on for the policy the policy is knowledge of the life threatening anemia and the need for surgery and then not following up and not taking the necessary steps to provide care which is more than malpractise it's actually an element there's an element of recklessness not a policy rather than  just a violation of you know a possible a possible deliberate indifference doesn't mean there's a policy of deliberate deliberate indifference of these cases the policy doesn't have to be formal you can show the policy through actions so in this particular case you have the same defendants most notably the two doctors dr miller and pall on o who knew this and mr science kept going to them and kept going to the infirmary and saying this is how i'm feeling this is torturous and they don't take the appropriate steps in your honor respectfully when a blood test shows that he has a life threatening condition and the answer is wait for surgery and hear some ibuprofen which actually acts as a blood thinner makes it worse it's not just there's not just a disagreement about care that is a level that is beyond that there is a gap between that and there's no in this particular case the defendants have not presented any evidence that there was an alternative reasonable course of action that they took with respect to his treatment remember his his condition gets so bad that eventually they have to rush into the hospital he's been in their care for years he's been complaining about these symptoms for months that is that at least on a summary judgment