my name is robert reich and i'm here for appellant leon simms this is a case about a deliberate indifference to my client's serious medical needs this is not an excessive force case the reason we discuss violence in the brief is because when you're paranoid person with bipolar schizo affective disorder being around violence and being subjected to violence is something that you can tolerate even less than an ordinary person can it works on the disease it makes it worse and so that's why we talk about violence but i want to be clear this is a deliberate indifference case here on appeal at its core now this is a medical condition bipolar with schizophrenia schizoaffective disorder treating it requires regular stable medication and counseling that is the course of treatment that he requires and if he doesn't get it it's dangerous he could kill himself and people at rikers have and in fact the criminal court judges that were presiding over his case ordered him on suicide watch they were so concerned about this possibility so that is a serious medical condition with a serious negative consequence if it isn't treated properly he got striker's silent he's given no medication in fact he isn't even given a bed to sleep on he is then thrust out into an area where he receives how i understood that he was generally given medication and it was only after he  three times went to bellevue on his return that reprocessing and he did not have medication for three days each each time you're talking about his initial arrival his initial arrival no medication and then he's thrust into the violence of rikers island he immediately digs compensates and he gets sent to a psychiatric emergency room that's his disease becomes takes over the symptoms become so severe he needs to go to the emergency room did he come in with a prescription we had he been taking medication before he did not but he came in with symptoms that were so blatant that anyone would realize that he needed psychiatric treatment we're talking about how long was it before he went to bellevue for the st time i believe it was a period of weeks and then he comes back and the stabilization that occurred at bellevue it happens again tuesday he goes to the int i understood his allegations to be that although he was prescribed medication and it was delivered to him that monitoring was inadequate to make sure that he took the medication there are different phases that we're discussing here when he st returns to mock rikers enough to reverse we go back to the district court for further crazy proceedings however when he is finally sort of admitted into am k c he is then effectively denied medication because he's paranoid and the staff are physically beating him and in his paranoid state he doesn't want to take the medication now i understand that he has a constitutional right to do that but it's not as though there are only two options that you let him do whatever he wants or you force it down his throat there's in fact the medicine is the intermediate option you counsel him you need to monitor medication compliance so you know if the drugs are working or not you know whether he's going to need because he hasn't been taking his medication this is important enough that several pages were in fact devoted to what kind of counseling do you need other than giving somebody medicine that this supposed to take and that according to you and i think it's sound he would certainly know that he needs medication well it's because this is somebody with a deep paranoia schizo affective disorder you need counseling that says look just because you may feel good today you still need to take your medicine consistently in fact today it kirby that is in a significant portion of the treatment he's been given because if and we certainly hope that ultimately he's allowed to live in a community setting going in the future making sure that he continues to take his medication that he monitors his stress levels this is how he's going to be able to live peacefully in society so this isn't just a matter of you know look you understand you really need to take th medicine this is in fact a deep part of the therapy and and that's that's i believe satisfies the st prong the nd part is the reasonable person or the objective test and i think that certainly anyone knows that you need medication and you need treatment with a severe mental disorder like mr sims has and that certainly the medical staff at rikers i guess where they properly trained would also have known that specifically the cries and stuff now you could look at my complaint and say well you didn't put in enough detail you could say that and if the judge and s we would have in advance and i believe that's that's really the nd important part of the argument here is that this came out of the blue we we understand that we're arguing over whether or not the  sufficient to make the city liable for this deprivation of medical care but we didn't see that the underlying allegations were insufficient in fact this is through multiple complaints several years of litigation and we've never heard anything about it how many complaints to do you file this for we're on our rd amended complaint although the rd one or the th one was in response to a motion to dismiss and the the rd one where we amplified our motel pleadings because that was what they were claiming was insufficient all we needed the district court judge either in response to the create a motion letter or even after briefing was to say in a minute order i'm concerned that maybe you haven't pled an underlying constitutional deprivation come talk to me about that submitted additional briefing whatever it was we would have been on notice and we would have addressed it directly but that didn't happen so we didn't and then i'm running out of time here we also have a big substantial briefing about the underlying modelo allegations i don't know that it's necessary for this court to address them in the st instance but certainly under the circumstances i briefed them in the event that you did want to address them in the st instance and i believe that there is a longstanding history of problems at rikers island with medical care specifically medical care for persons with mental illness and with violence and not only was there a lack of training which is the mayor admits to it also amounted to a de facto policy accepting the fact that many people who us that your client needed some additional and special attention because of the severity of his symptoms i mean this is he is an extreme case this is not and to be clear forty percent of the people at rikers island do have mental health issues to settle what more needs to be done i know the point cuts both ways i mean if forty percent of the people have mental health problems then they ought to have close monitoring of people's mental health problems on the other hand on the other hand you're saying that that thing you did they disregarded his problem but forty percent of them have problems and and they act out  and in this instance when he compensated he was sent to a competent facility and he came back he came back with a prescription and  can ask people to fill a prescription could he not and when it was filled he didn't take it it's kind of hard to see why this is the case and want his island where no doubt many people could say that they were medically neglected this is one that stands out well his symptoms were severe enough that he returned to the e r more times going to be compensated in addition to the at rikers island it's not as simple as saying hi i need some medication i have a prescription they're in complete control there were certainly aware of the prescription because it would have been automatically provided to them from bellevue so you know he doesn't have a lot of options and i'll note a part of the complaint is that his family was calling repeatedly saying why isn't my son getting treatment and it was being ignored so they were on notice that was this was a particularly severe case that needed to be treated as such how is his being returned to bellevue consistent with deliberate indifference doesn't that show that they were attending to his needs well i mean it's like an infection that's allowed to spread out of control and then it gets a little bit of treatment it gets better at proper hospital but then you stop giving them the antibiotics and the infection gets bad again and then you go back to the mental health mental illness is a different and more chronic condition than infection so i agree and i would say that this is where the inferences that i'm allowed in a motion to dismiss matter is because you could that's what the district court looked at it but i would say that this is equally and in fact what happened is that this was evidence  that he his denial of medical care was causing his symptoms to become so much worse that he went to the e r and those are two different ways of looking at the same evidence that i'd say and this procedural posture our explanation controls which is this is evidence of the damage that was done not that this they were finally just giving him proper treatment ok we hear from the city thank you  mr simms did not come to rikers with a diagnosis a prescription or any sort of treatment regimen all of the medicate all of the treatment that he received started at rikers island so the to discuss the diagnosis that he had i mean that's not part of the complaint and the complaint only alleges that he should have known that he needed treatment and again there is no allegation as to the severity of symptoms when he arrived at rikers island you know factually just two weeks like you have every fresh my recollection the original complaint included allegations of excessive force other other wrongs as well in fact and included so what we have is you know allegations that while mr simms was at rikers he was being given medication that he refused to take because he was paranoid and then we have fact that he decomp unseeded and went to bellevue several times which is you know consistent with refusing medication and so that's a consistent isn't it with either in adequate treatment i mean we have the record allegations that his parents were calling riker's and calling their son's condition to the attention of the authorities at rikers and in a motion to dismiss stage why is it fair to draw the inference that he was actually getting treated from the fact that he went to bellevue on civil occasions as opposed to the contrary inference i mean i think you know we need more than imperfect treatment for it to rise to the level of a constitutional deprivation it may be that it was some combination of factors including his own refusal to take medication and perhaps more could have been done to prevent him from going to bellevue but in order to show that he was receiving inadequate medical treatment that rises to the level of a constitutional deprivation  really point to the opposite that he was being given medication that every time his condition worsened he was sent to a facility that was competent to treat that and then that ultimately after a period of we're talking about a period of three months here where he was at rikers that he was ultimately sent to  a different facility that he is happy with i mean met mental health problems take time to diagnose and treat properly there's no allegation that he had a diagnosis or a treatment regimen when he came to rikers island and within a period of three month you're with him prescription i believe was after he arrived at rikers island and so the allegation about a denial of medication is that every time he came back from bellevue he was in an intake area for a period of three to four days and during that time the complaint alleges he was not given his medication to the extent that we know if we take that as true for the purposes of this stage that's a gap or an interruption in his treatment that still doesn't rise to the sufficiently serious level of  harsh particularly harsh conditions in that setting which you know one might be able to infer that he would be damaged in further i mean certainly not getting any special care because of his result maybe that's a deliberate indifference systemic kind of deliberate indifference i mean readmission happens there's no there's no specific allegation as to any injury that he sustained as a result of that and to the extent that it was a three or four day period each time you know without morris to what happened to him while he was there or what the result was of you know allegedly being denied medication there's nothing that brings this up to the sufficiently serious level objective least serious to price level of a constitutional deprivation it may well be that it wasn't perfect that the admit you know he wasn't administered medication perfectly but that doesn't bring us to deliberate indifference here u honor one point that i think needs to be made is that part of his treatment is that it has to be predictable and one of our allegations is that gaps in treatment for him are more serious and more dangerous than they are in other medical conditions and the risk here as i said is severe you know he could have killed himself and multiple people at rikers island who are denied medical care in similar ways have killed himself that's a real danger and they say you know you have to look at how little it would have taken for them to comply to just give him the medication he needed and write down whether or not he was taking it and to put him in an area where he wasn't subjected to violence there's the north infirmary complex or center at the neck at rikers island which is a place for people that are sick and obviously there's other facilities like bellevue and kirby so you know if you know the reason people don't take their medication is that they believe they don't need their medication could be make them sick but ordinarily in this kind of situation you term it and you just think that they need that medication  he doesn't think he needs the medication why why should we tax the people around him with knowing that he's not taking it and knowing that he needs it because it's an important part of the medical treatment because it's a known part of the medical treatment in fact it was so important that they devoted two pages to it in the report regarding cries and failures this is one of the vital wait is that you keep that he arrived with a specific diagnosis but there was an understanding that he had serious mental health issues that were going to require to write it and when he returned from bellevue certainly they knew that he needed medication and that there was a working diagnosis and they still did exactly the same thing to him over and over and over again and that's the deliberate indifference thank you very much we have the arguments thank you all right that concludes our arguments today we have two cases on