that i'd like to reserve that's ok and there are three issues before the court today the first issue is whether the district court applied the proper legal standard under the fourteenth amendment to evaluate mr willie section one thousand nine hundred three claim for failure to provide adequate medical care the second issue is whether the district court abused its discretion by denying mr willy's multiple requests for counsel until after it ruled on a pelleas motions for summary judgment and the third issue is whether the district court of used its discretion by entering summary judgment against mr willie on multiple claims without providing him the opportunity to obtain had a quick discovery or there was a counsel at some before the district court that's correct your honor and county and so i'd like to begin if your honour's don't mind with the fourteenth amendment question i believe that that is one of the most important issues here in this appeal it's clearly central  appeal has the ninth circuit ever seen of this pretrial the teens in terms of the conditions of confinement medical treatment etc are held to a different or a lower standard than those serving a sentence post conviction the ninth circuit has never held that a lower standard applies to a trial detaining or someone who's being detained by the state yet has not been convicted of any crime like mr willi the ninth circuit has recognized that greater pretext for protection might be afforded to someone in this position under the fourteenth amendment and then the standard that would be applied under the  here i believe that this court could adopt a lower standard without non bank hearing although i have not researched that issue what standard would you have a supply if you could write the standard what would it be yeah your honor i think a reckless and different standard would both afford greater protection under the fourteenth amendment which someone like mr willie should be entitled to and it would also be consistent with the supreme court's determination that is this is really his real well really my understanding are although we've never had a discussion with mr willy about this is that this is not his his real name his is real name something else he changed to chile willy to honor his grandmother from these prescribed medications and and in the record to you took them eight months before they put him back on to stronger medications for his pain and his mental illness those three may casings were vike i announce a lower standard for people like mr willie who have not been convicted been in crime that obviously is a much more difficult standard to me but here you have as i said a course of treatment that that consciously disregarded a prior course of treatment through a person right through a licensed physician deny him the medications that he needed to treat his pain and his mental illness for eight months before they gave him medication that that prison authorities don't have the authority to have their own medical personnel treat an individual and certainly in the context of a prison when you're dealing with convicted inmates there's already been due process and there's already been a trial by jury demanded an education of guilt and so that convicted you know prisoner has already been had certain certain liberty interest taken away from him and therefore he is there as a rock medical treatment he has a right absolutely your honor but a higher standard would apply and it makes sense that a higher standard would apply what mr willie smith says that for someone who hasn't been convicted of any crime and there hasn't been due process a lower standard should apply and that lower standard should take into account that they say that there should be a greater greater personnel but mental health because in fact he was determined by them because of these are confident to be in need of mental review they found that he was needed to be withdrawn to be taken off the heavy dose medication that he had been given by the outside doctor they directed they asked the medical personnel to put mr wiley on a withdrawal protocol he wasn't abandoned he wasn't left to stop or without being seen medically he was put on a crisscross withdraw protocol to get him off of the medications that he had been on for a long period of time inappropriately and in fact the record shows that when you've been to a place called copper towers which is a clinic north of the of the jail some before several months before they had kind of off talked about him being in withdrawal and threw him out of the clinic so we don't have someone here comes in pristine clean with a list of medications that even taking and all of a sudden he's thrown in the wastebasket and disregarded by medical personnel that's not what happened he was put on withdrawal protocol he was observed he was checked and then as you progress through the weeklong weeks long withdrawal protocol he was going to test by the doctor's orders and hibbard and determine what kind of medication he needed with the idea that he had ben addicted to the previous medications so there was a conscious application of medical principles and reasoning by dr looters and d determining what to do and why that's important is that's what we put in front of the trial court as a subjective thinking of the medical personnel defendants as to what they did why they did what they did and the quote found that there was ample evidence that what the physicians had done at the g i was appropriate and proper very straightforward question mr willie was given appropriate treatment on what basis medical or mental health personnel at the facility determine that mr willie was abusing his man's well first instance was we met mental health but you can't isn't the medical personnel it's a different group of people when they saw the level of clonopin that mr willie had been a heavy duty psychotic medication he had been taking it at levels that they thought were distressing and they thought that given his presentation and given the fact that he was complaining about mental health problems at the time we contacted her tried to contact dr gruber i faxed him a fax with a consent in release and the way it works in the real world is that you don't get records from an outside providing doctor unless you give him or her released there's something called hipaa health information privacy protection act which is which prohibits doctors and providers from giving away records without the kind of consent that we sent to dr gruber in this case we never got a response from dr gruber but ninety during a hearing in the criminal court in sonoma county mr willy's criminal lawyer talked to the court about the problem that he couldn't get a response from dr gruber so not only didn't i get a response from d fax in his office with the consent and he doesn't bother to send the records to us and later on he isn't bothered to send the records to anybody we did what we could do we were supposed to do to try to find out why he was prescribing this heavy deuced dose of a basket full of that you can call that whatever you want but you're still going to be the court still going to be looking at why the doctor did what he did or she did or didn't do what they didn't do and whether or not there was a sound basis for that  you look at what he or she did and then you could put a label on that reckless indifference or conscious disregard the question still is did the doctor do what he or she thought was proper or did they withhold care or do they not know enough to know what the proper  athlete one question the court did ask about segregation of inmates within one county it's just ability not just not happen pretrial detainees are housed not segregated from those who are no longer reach people convicted of a crime and therefore deprived of liberty with people who simply for one reason or another including money can't afford a well  movement of prisoners housing of prisoners but these people confined within the county jail the housing and getting them to and from the court house which is actually attached to the main adult attention facility  simply could not work in our facility but i did want to address that question and very briefly the two issues that obviously the county does have an interest in that are raised by mr willy's appeal are or the question about whether the trial  the trial judge abused her discretion in failing to appoint counsel soon or i think that the record is abundantly clear that judge well can talk every effort every time a suggestion was made that counsel needed to be appointed  actually represented himself as the court i'm sure has seen through the volumes of written correspondence that mr willie submitted on his own behalf he was capable of very coherent thought in fact i always looked forward to whatever it was he was submitting because it was always interesting and it was always unique and he expressed himself very well and the court took must have taken that into consideration there is no evidence that the trial judge did not take that into consideration and discovery i'm sorry he can't adequate discovery well he had two years to conduct discovery and he certainly knew how to do it he the record reflects that he served  that he knew at a draft written what he called deposition questions although it's unclear who they were directed to and there was a period which is commented on by the trial judge in one order that there was a whole year where there was no activity on the case whatsoever and the judge which prompted judge welcome to then say either you're going to prosecute this case or your you are not he clearly knew how to conduct discovery and i think the record reflects that and the discovery that he did send or excuse me if i if i can back up a bit the ninth circuit with regard to fact finding abilities of pro per plan has already held that the fact that there is a need for more discovery or more facts to be gathered is not an extraordinary circumstance which would allow the court to appoint counsel to represent that person in such a case every case would warrant exceptional circumstances and counsel would have to be appointed to everyone incarcerated or not and i think that and that's the will born decision which is a good decision and discusses at some length the  i would just like to briefly address the standard that that we propose the reckless and different standard that it would actually be different and it can be articulated clearly the standard proposed in the county washroom case i mentioned earlier was that the defendant would be liable where either he actually knew of the risk of harm which is the deliberate indifference standard or the defendant actually knew of facts which clearly would lead any reasonable person to conclude that there was a risk of harm but the defended did not draw that conclusion himself i believe this is a clearly articulable standard and it does what it eliminates your honor is the subjectivity of the deliberate indifference standard unders that under the deliberate indifference standard you must prove not only that the course of treatment was improper but that the physician knew that the that the course of treatment was improper and proceeded anyway tell us how it was recklessly and different for the medical slash mental health personnel of this case faced with a lack of response from the currently prescribing physician to proceed in the way that the eamon mentioned that there's a voluminous record in this case of what mr willie tried to submit to the district court gave us the three sentence summary there were the luminous complaints that the treatment was not working they ignored those first ignored dr