is what that is what the plaintiff's constitutional rights are in the fox based on the facts and circumstances the second legal issue is what the defendants were obligated to do under clearly  immunity he he didn't what did he do what is he had charged with doing but the reason he said well he runs the jail he had no prior understand that but had no personal involvement in any of the plaintiff's constitutional rights and th he can be liable on that basis under one thousand nine hundred three so and then she suggested what might be done to keep him in the case but she just dismissed him without prejudice i don't know how you have the right to be here how the warden has a right to be here on this appeal certainly those that were do not qualified immunity have that right she did not deny him qualified immunity now he might have asked for i'm just puzzled as to how on earth we could find he has qualified immunity when he's not charged with doing anything it's a it's a have committed a constitutional violation at all and she suggested he never found that she just said he cannot be sued on this basis so i'm going to dismiss without prejudice and then she suggested to an ordinarily we allow a pro se litigant to have another up came cheaply now they have counsel and so on so i guess why are we dealing with that until we know if there's going to be a replete or what that says you know did he state a claim for you know policies and procedures and so on that will give rise to that kind of liability much of my understanding of the judge's decision is well it just procedurally we were ordered to file warden and so those claims should have been dismissed with prejudice our understanding was that it was qualified immunity that that she found he was entitled to qualified immunity even though she didn't say it i mean  because he cannot be sued in an official capacity you ask us to dismiss him with prejudice and he hasn't been sued yet so we don't know what might be done but we're often being broken so if you've used up a thirty year old man or go home a for for delaying referral to the appropriate specialist or position and you didn't brief that so isn't that point waived just and i did not interpret that we would be responded to that contention in our reply brief specifically that that had been waived i did not read judge harrigan's opinion is actually identifying such a claim she said it was attempted that was the word she used and then moved on i mean she didn't adjudicate it she didn't find it was plausibly plated like the other claims she just said he tried to plead that but even so she denied qualified immunity from even by judge barragan well she identified two claims and that was one of the no she dismissed one of them she specifically said she identified two claims and then dismissed the first one and allowed the claim on the duty there was no harm identified from any delay in a referral i made the referrals that we're talking about were referrals for surgical evaluations which judge very good very clearly said is not claiming the losses the speed or urgency with wh is getting hip replacement surgery when he was not didn't delay a treatment was never delayed no fact like that was ever identified and it even if somehow or another i i believe that that wasn't a claim brought against ms carter or certainly wasn't clearly identified but if it was a claim the result is the same i mean she was denied qualified immunity by being ordered to produce unlimited insurmountable evidence against it but as a matter of law absent a substantial injury or significant injury a delay in objective when on reasonable conduct i mean there was no gap in treatment alleged that could have been a claim against the word and that you know if he didn't hire another doctor and there you know they were dr lewis for a while but that didn't happen because d or to turn over the care it just it can't be and i did document vaguely apple has no claim that when he left and moved to a new position he took all the medical records with him and when allowed the man i'm back or something no facetious right no everybody got all the records that they that they asked for both sides in this case but i basically at the end of the day the defendants were denied qualified immunity certainly the two doctors and miss carter and the law does not support the law does not clearly establish that any of their alleged violated the eighth amendment on miss carter is alleged to have unconstitutionally refused to transfer a duty status that's not a claim she she didn't violate a duty status there's cases on  i would i would like to kind of to finish that point out if you are no longer claiming that it should have been without prejudice or whatever if you're conceding they should be with because you have no further claims made i think that would be an appropriate thing to follow a document with  i consider that in fact letter if you know i mean obviously you need to converse with your client and i understand that can i ask you to explain it it's a little bit confusing with this nurse carter there's a couple of different referrals but to me there was clearly one referral that that judge i thought that the judge left open which was this referral from dr make day and the judge did not find that that was dismissed in the district court's opinion the district's opinion at page twenty addresses nurse carter's conduct and she says in the opinion first plaintiff claims that nurse carter expressly ignored his attempt to advise or that he had been scheduled for offsite orthopaedic consul and she looks at that and she says not enough there i don't recognise that claim ok that's not the one issue then she says plain on the next page and this is this is the claim they say she didn't address finally because plaintiff has sought the nurse carter liable for any intentional delays in their appropriate that has included correspondence related to scheduling of a follow up the a nurse carter was aware because my client told her that this referral was out there then i think we can draw an inference that she was aware that there was some serious that without her give us a two page letter if you wish that would be your response to that point you can also mean you can also talk about it now but if you have it i would like i would like to when i think of the two big issues and then when we get to that if you if you  of his constitutional you're not assigning the merits based on the facts but they did argue that there is no constitutional right and they said that the right here is a right to a hip replacement they say over and over there's no constitutional right to the constitutional right which is medical exemption medical care for a serious medical need what is a serious medical need and by the way this right like i said was first established in the stove again but it has been recognized by this court many many times there's no doubt that it's clearly a staff the question is does he have a serious medical need and under still the gamble and this court's precedent a serious medical need is one for which you suffer excruciating pain or not even expression in pain we have excruciating pain pain and suffering that serves no pain a logical or there's room for which treatment has been recommend and we who he's a veteran in two thousand and eleven before he went in he was scheduled for this hip surgery since two thousand and eleven condition has deteriorated to the point that his last american exam which was a twenty thirteen which the serious because it's not medically necessary to save his life that is not the test a condition to be serious to what some appear to have to kill you they say oh well you know he doesn't have a right of the circumstances because there's been state budget cuts and we can't afford it that that also is irrelevant to whether he has a serious medical need the fact that they may afford the care and i don't know that they are the problem is not whether this prisoner should have been handled differently but whether you've got really with the right defendants i mean and i realize it wasn't you your client your client whose crime was that he left the job and went to a different job the next i'm going to get to that ok so then he's upset about a nurse who has done what she is with the one possible exception of this referral issue has done what she's supposed to do nurses can't go around doing hampered by some surgeries even dr mike they what is it that he's supposed to do i mean the problem really to me is not whether your client has some need that hasn't been met but whether he's sued the right people a as you are involved in the star and things model looked a little better had had you been and the fact that he's pro se doesn't mean he's wrong and i don't mean to imply that but do we have a right people for a constitutional violation as to this god i think we do record may be held liable for deliberate indifference i think we've got those facts but i don't even think you because i think the district court and that there should be more discovery she denied the motion for qualified immunity  and so here if he's getting pain meds that's addressing his pain yes it would be you know nice to have the sort of cadillac treatment least getting something i agree i agree that if he's getting something we have a fact a fact question  it's not entirely clear to me that all of these people have the authority to do what you're asking in other words to actually go and do the surgery actually whatever and so if they are taking steps to address the pain is it an had a heart condition for which he had been prescribed and one night he wakes up and he's having severe chest pains and he goes down to the duty nurse and says offering can you help me and she did not ignore him you don't have to ignore him you don't have to prove that the defendants ignored you she did not ignore him she took his blood pressure and she sent him to the pharmacy gets to the pharmacy and the pharmacy is closed so i get back to the nurse and he says you know the pharmacy is close or really need something immunity like the defendants here and said oh you just disappeared in the course of treatment he's just used to complaining about this delay he can't recover from that and this court disagreed this court said no he had a serious medical need he had a constitutional right to they did not act with deliberate indifference which is contrary to process of it they have but where are the defendants are in possession of the opi evidence and other medical records of the prison treatment or whatever i think  and objecting to the report and recommendation and this is the first i'm hearing of missing pages from the medical records that apparently he had to give to his lawyer i don't understand  i also don't know what they say but if there are additional pages missing from the medical record that means that there's additional treatment that was done i mean when there's an out of the record group like you know diane me i'm in pain and h scribbling back to bad and that could be with missing document and i'm not sure that would help you but i think miss i think mr thomas could certainly have written that down i mean he would have been present when that happened and he didn't that's not what he's claiming that's list for surgery he didn't get it he got arrested for drunk driving he went to jail he wanted the surgery that's it that's all he ever wanted that's what the magistrate judge determined he wanted and then the district judge says well get if that's what he wanted he would because a lot doesn't support we have to give inmates surgery that it's not medically necessary according to the surgeons and she said the current impediment to surgery are the surgeons not these defendants  except i mean i think that it would depend on the situation as a matter of law and that addressing pain with pain medication is not ignoring or intentionally mistreating the wheelchair and then withheld it problem is in a lot of these cases the thing that the person wants that doctor isn't required to pay so he puts in a record warm and and some other person  i don't know but there's no allegation that it wasn't that it was any of the defendants but even if it was i mean i hate to sound catty but as a matter of law the delay in treatment has to cause significant injury the delay in referral to the orthopaedic surgeon who over and over and over says we're not going to operate they keep saying the same thing there's no significant injury this is a matter of