the next case today is every snell versus thomas neville at all appeal number one hundred and one attorney yost please proceed with your argument thank you good morning thank you your honor before beginning with your honor's commission i would like to reserve one minute rebuttal your way this is an appeal from the district court's decision granting summary judgment to the department of correction or deal as the defendants will keep my summary of the relevant background greet mr snow as a sixty four year old man serving a life sentence in the massachusetts prison system among other medical conditions mr still suffers from degenerative joint disease or  his lower back and needs because of these conditions mr snow has used to keen to walk since at least two thousand and thirteen and he uses a back brace in bilateral graces in the proceedings below mr still brought claims seeking a reasonable commutation that would allow him to access legal research materials in prison without being required to climb stairs mister could you could you clarify what he's asking for under his  pressed or challenged by the defendant a summary judgment they were not addressed by the district court in this decision and they are not trust and briefed on appeal to the extent that your honour's believe that the issues of damages are dispositive we would respect so that's the problem is no argument on appeal that he should be entitled to any damages and he's now in a new prison so is it the accommodation claim itself no your honor and i believe that that is one of the critical review in this decision the district court reason that this case is not capable of repetition yet abating review because the record shows that medical restrictions are reviewed before they expire mr snow is transferred to m c i surely was predicated on  no stairs medical restriction that was set for one year and has now since expired and then expired since a member two thousand and eighteen the record however showed that medical restrictions typically are not reviewed before they expire if mr snow did not have a medical condition that required medical attention at that time i do not know whether or not he would be able to actually request in medical assessment simply for the purpose of the new medically struction and your argument your argument is that there's your argument is that they don't have a routine procedure in place and once again that's disputed but it seems to me that if there is a procedure in place that would allow your client access to medical evaluation before accommodation expires i'm not sure why that is isn't satisfactory if i may in the testimony restriction has expired doesn't the record show that he sees the doctor almost every month he may be lisi the doctor so like any one of those visits he could just ask the doctor comment on my niece inability to walk up stairs that's why he's seeing a doctor isn't yes no they're not on puzzle on puzzle he's in a situation now in a prison where he doesn't need any he doesn't have to walk up stairs so we've got no current claim what's the scenario where all of a sudden he could suddenly need a claim and yet not have time to do anything about it if he was transferred out of m c i surely to another prison facility that would require him to climb stairs to access legal research materials but he could just ask his docket for restriction at that point could mean yes i believe that there are also complications in that regard in the sense that the test binds out that he's going to be transferred when being transferred for example mr snow was transferred from m c i concord to m c i surely the very day that he was issued a no stairs medical restriction and there was a period of time where he had no idea what was happening but if you post if he's transferred back to concord i'm still trying to understand what prevents him from asking for medical evaluation mr snow would be able to request medical assessment and then the medical assessment he could certainly bring up the issue of we his ability to climb stairs but the current the claim is that mr still was given a reasonable accommodation for over two years and then it was suddenly terminated without there being any affirmative showing to his medical condition had actually changed or what were turning up period wasn't he working had a explained at his deposition that during that one year period he was to experience things significant swelling he was taking infinite inflammatory drugs he would have been able to continue his position as a clerk in the law library ija partment of correction has a system with respects to accommodations and the d n c utilizes that system to ensure that medical treatment and accommodation determinations are grounded in professional clinical judgment and the department reasonably relied on the current judgment of medical professionals as to mr stiles the need for medical care and reasonable accommodations now mr snell's attorney just said that mr snow was given an accommodation for two years and it was taken away that is not true what happened was mr snell took it upon himself without an fact he said that mr snell kept using the word accommodation however when it was discovered by a the deputy superintendent that he was using that they checked and he did not have accommodation that stated that he could not use stairs and that was uncontested in the district or he never had a reasonable accommodation that said no stairs and two thousand and eighteen when dr churchill yes it's placed in the inmate management system which is referred to as i in mass and the officers have access to that and if an inmate believes that they need an accommodation is there a procedure in place to request a medical evaluation yes there are two different ways what an inmate needs a medical commendation he can either go to his correctional program officer and fill something out evidence that it's stopping his use of the st floor lex's terminal was in any way its retaliation and that it would not have occurred but for retaliation it was clear that that terminal was for people who could not go upstairs to the nd library and in fact even mr tetris and that he assumed mr snell was able to use it and that if no one was using it he really didn't care however he was told that there had to be a sign and that no one who does not have a reasonable accommodation that says no stairs is allowed to use that terminal because that's what it's for  snell received a reasonable accommodation and twenty eight dollars team from dr churchill that said he could not use stairs and it also said that he required a handicapped accessible facility the testimony was clear in the people who have mental health needs mr snow used the st floor terminal for two years before he was terminated is that correct that is correct and so so and so the it as an accommodation he assumed he had an accommodation and he did not check and that was something that mr tensors should not have done but the testimony was undisputed that he did not have mr snell did not have a employee again who's not a medical doctor mistakenly allows someone to do something they shouldn't be doing that's not an argument for it to continue he wasn't supposed to be doing that when it was discovered they stopped it sort of like if you parked in a handicap spot because you assume you're handicapped and you say well that i don't have a placard and you've been doing it for a year and no one catches you know when they do you can say well i've been doing this for a year you can't tell me now i can't park here the issue is in that case they wouldn't have the placard and the issue here is he didn't have the medical order that said no stairs just just one point of clarification as far as what the record shows at the point that doctor ruse sure if i'm pronouncing the name correctly made the medical notation that he did not need in a calm st floor combination what was the last time for that notation had she seen him i believe her testimony was that she saw him at least every six months chronic care patients are seen on a regular schedule basis and that he had been her patient at that time for seven years and she had seen him on approximately fifteen occasions so you're saying it would have been six months care is scheduled on a regular basis and that they can be monitored wait when it was determined that he needed a handicap facility to suggest that he may aid in the future being transferred to a facility where he may have to go up and down stairs and that he may not have an accommodation is really too speculative for this court shit to have to deal with and for anything else including the defendant's qualified immunity argument again because they knew simply relied on in fact hatcher  on the on the opinion of the independent physician that he was able to go up and down stairs we would ask that the judgement in favor of the defendants from the just or court be affirmed thank you stated that not only did he never file the required grievance with the medical provider he also never even asked dr resort or any other medical provider for such a restriction because no never even attempted to exhaust his administrative remedies dr ruiz was never made aware of snell's medical the objective and subjective prongs although the district court did not issue a decision pursuant to the object of prong it did note that snow's own expert field to make any conclusions as to the quality of candidates now received in his briefs no inaccurately argues that the simply demonstrate he has a serious medical need you must also demonstrate that he received in adequate medical care for that need here the undisputed facts reflect that at all times the snow received adequate medical yet just not the specific europe is choosing now as a result his main field primary care physician she valuated him on numerous occasions and provided him with an immense amount of treatment and medical orders which included x rays and outside consultations issuing orders for an air cast nice leaves into embolism stockings in a back to address nels medical needs nor can he prove that he acted with a couple state of mind intended to cause him harm while snow's expert contends that he should have been provided with a no stance restriction such an opinion is you can't entirely irrelevant to whether or not doctor we acted with deliberat the permission of the law library shows quite simply the commonsense recognition that mr snow an individual with a cane who is large qualify as obese and with reading problems who walks with the limits here be expected to climb up and down two flights of stairs on a daily basis especially when he's carrying stacks of legal files as he does to do legal work i'd also like to emphasize that the medical restriction of precipitation mr snow is transferred does not specify a transfer to a facility it simply states no stairs the decision to transfer is entirely within the purview of the dual see defendants the medical restriction simply says that mr snow cannot be required to climb stairs were guarding just now ignoring the fact that he had numerous other medical restrictions beyond a go stairs restriction showing that he cannot climb stairs he's included a bottom tier restriction and clearly diagnosed degenerative are the other key to condition they call the next case yes judge nd clips the arguments in this case