and we will be greatly benefited we trust i started this thing today point out a few rules of the road including our lighting system be alert to the red light yellow is supposed to give you a two man warning but the red is no warning at all this a stop we have as i mentioned three cases we may or may not take a break after two we'll hear the st case of the day michael al judgment this court should reverse the course decision for two reasons st because ross to his refusal to conduct any assessment or to provide any actual treatment for petzold injury was enough to show deliberate indifference or at least i should say to create a fact question to go to trial with and nd on those facts which are essentially undisputed the qualified immunity defense must fail under this court's published decisions and easter versus powell and assess an injury and failed to provide any treatment or care for example in eastern and where the seller of both cases there was an encounter with medical staff there was a conversation there was discussion between the plaintiff and some prison personnel but this court held that was not enough because no actual treatment no actual care was provided and the pain and suffering the plaintiff suffered as a result of the delay  receiving treatment or care was held to be sufficient substantial harm to allow an item in the claim to go forward as the u s supreme court put it in this still vs gamble some exercise a medical judgment is necessary in order to trigger the rule that merely negligent here does not make out and make them in that class and that is precisely what is missing here on these facts which are as far as the operative facts go on this issue essentially one knew that suffered an injury because officer terrell reported it to him through proper protocol roscoe and knew that petzold was suffering pain and in fact was barely able to walk because they passed petzold was a type one insulin dependent diabetic and despite this undisputed knowledge of an injury despite this undisputed knowledge of pain and of his barely being able to emulate around the prison dylan's st response to a properly routed request for care which was petzold reporting the injury to his office his unit officer terrell his response was wait until like two and a half days late of those isn't that what to response was there need didn't rushed on him say i see ankle up your honor is referring to the subsequent response that that happen at the enslin window that's correct but the initial response of the of who has suffered an injury and his in pain is not sufficient this court requires that some actual treatment or care be provide as a still big gamble noted in the u s supreme court's one thousand nine hundred and seventy six case that projet or of all these cases there has to be some kind of treatment provided because it prisoner is dependent on his jailers to receive treatment he has not at liberty if rust on says go find some loach and in the unit from someone which was a prison rule dilation he's not of liberty to go to the pharmacy which was closed our to go borrow some that is an from someone else at less be provided it was ross to one's jock to provide treatment not simply to give him encouraging words and sinned him on his way in fact what happen at the enslin window wise when in line was finish and then examined and he asked for some medicine for the swelling and mr ross to his response to that was go get some motoring from the pharmacy and put eyes on  at that point mr pitt sold handed his insulin syringe back stepped to the side to allow the next one to come up and then said again the pharmacy is closed until monday can you give me something for the swelling and the response to that  rd request for care was go find some lotion from someone in the unit it's undisputed that mr president was not at liberty to do so that would have been a violation of prison regulations and so ultimately examining all of the encounter all  plant he ascertained no facts or data on which he could possibly have exercised medical judgment and that is why this case can not fall within the rule that merely negligent or substandard care or treatment does not give rise to an th amendment claim russell had knowledge of an injury and he had knowledge of a risk of serious harm and yet he took the chance that that injury on a diabetic  might be too serious to leave for two and a half days and then he brushed aside the direct request groupie to direct request for care from mr pett sold himself later that evening and knowledge of a risk of serious harm is all that this court requires as held in easter and alderson because that initial response was to rebuff his requests for care and because that response was repeated directly face to face at the insulin window this is enough to at least give mr pitts sold his day at trial it is enough to create a jury question on whether he was deliberately indifferent to a substantial risk of serious harm as this court's already noted serious harm includes unnecessary pain and suffering suffered by a point during the interval of delay in treatment here that interval was two and a half days the record indicates that because of nurse russell and refusal to do anything for mr betts old he was forced to endure what he rated as a nine out of ten pain scale for the entire weekend he was barely able to shower himself he was hampered in all of his activities of daily living and by the time he finally did receive treatment monday morning the swelling in his left ankle had reached his knees that in two and a half days of excruciating pain is enough to constitute a risk at least of substantial harm and is enough to establish a jury question on the state in the client and those same facts also explain why the qualified immunity defense must fail chapman we don't know if it was a fractured ankle or not what mr petzold suffered all we know from the chapman opinion which is such a breeze is that there was an ankle injury of some kind and then there was a debate in the evidence at summary judgment about whether the defendant ha to provide the plaintiff with ibuprofen an ice incidentally whether he actually did better or not and the court held there's a dispute about whether the defendant did or didn't provide obvious profane and ice for this i'm going to read that's enough as the supreme congress has not created the right of action that they did against state officers like they did in a still under forty two dollars united states code section one hundred and eighty three dollars the st question we have to decide is whether it is a new begins claim obviously the context in which the claim arises simply standards to deal the law to apply to a deliberate indifference claim is the same whether it comes to the court in a state law context which is a section like in a three action or the federal law context which we would call of this action as the supreme court ever said that we can do that in a deliberate indifference claim i do not think so because i don't believe the supreme court has decided a deliberate indifference bivins species of case with all of those specifics of that this court has and has essentially equivocated as to the same standard apply on both cases and indeed in easter itself this court said look the the law of deliberate indifference and what prison official list do has been well established has been established for some time and therefore if a prison official or nurses conduct is unreasonable and evidence is provided that isn't reasonable if they refuse to provide here then ordinarily the suit the qualified immunity defense should fail that's what the u s supreme court said in harlow v for its general for example is that if the is established ordinarily the qualified immunity defense ought to fail and so because of the facts here at least you rise to a jury question on whether mr russell was deliberately indifferent it is appropriate that the qualified immunity defense at the summary judgment stage as a matter of law be defeated and do you think it begins claims whether they're cognizable at the threshold or survive qualified immunity on the back court's had a lot to say about how it operates in the th minute context and they've said over and over again that of course you have a th amendment right to be free from on reasonable searches and seizures but that doesn't mean that any particular th amendment claim gets over qualified immunity we have to determine whether the officer in this case the the the nurse would have been on notice that the thing that they were doing was clearly outside the bounds of federal law that is a qualified immunity would protect all but the clearly incompetent unknowing violators of  is your claim that the nurse in this case was a knowing violator of the law are clearly incompetent that would that i'm using the th amendment context cases and i'm asking if you would think that would apply and even in that case look i will say this th panel in the alderson versus concordia parish case from two thousand and seventeen which reaffirmed everything that easter held about here is what a prison official must do and if in failing to do so he or she inflicts unnecessary pain and suffering on a prison plaintiff that is enough at least she stated claim alderson was a two of the six appeals or to survive summary judgment easter was a summary judgment so i hope that answers your daughter's questions because the law here has blank refusal to do anything about it was at the minimum substantial evidence of deliberate indifference sufficient to survive a summary judgment so if the court has to go for the questions bank given wasn't what that's all wanted but that's not what matters when matters is did ross dylan do something and here he did he didn't say  ignore the claim and on top of that as much as there's discussion about knowledge of the condition and how bad it was and that sort of thing there's a little bit of an overstatement in the briefing and even here today about what it and that's and says oh well i've talked to the housing officer you'll see about it you'll find out about it later on but he didn't say take a look at my table right here in there in the hallway nobody else around him not be a perfect time if you're in issue handily handing not the needles to other inmates and their pills and that's one thing other people already line orderliness really makes a difference for the insulin line but that's the time the pencil says can you look at my ankle that he says put some ice on it it gets medicine not bad not anything else is like right then and there and putting ice on it and getting some medicine is actually what some of the treatment that he received on monday when he went to the sick what about complications was least part of those instructions that the commissary or whatever the place he got medicine is labeled was closed good medicine from other inmates was allegedly prohibited what do you make of that but that's we probably can see that something that he shouldn't said as far as go and get something that you know just that he should have said he gave him no viable that he could possibly do and that's not the case i mean if it is if a prisoner has a heart attack in texarkana on the weekend in sick bay is closed the taken to the christus hospital in downtown texarkana if somebody gets cut or deeds  emergency medical treatment that's a sort of medical treatment that's the constitutional obligation and remedies that are available to inmates just like that so they don't have to go and continue to walk the yard there have to continue to walk everywhere exacerbating maybe fracturing only swollen ankle they don't have to go and keep doing that if they're in significant pain nine out of ten pain scale type pain there's remedies available to them they can go and say look i can't walk anymore look at the swelling to my knee i need something now housing officer because that's when that's another thing too in this case the housing officer terrell never got sued and he's the one who is ultimately responsible for making sure that all the people in his housing unit get the treatment that's available to them for whatever reason whether it was wooding or terrell it was somebody other than ro but he also know that diabetics are predisposed to a fractured bones generally and i'm not sure that's in the record your honor if he was mad in slimline he may or may not know that i just don't believe it's in  but as far as the knowledge of disability of his condition the sickbay was available earlier in the day prior to that there is a line it is in the early evening after dinner they even limb self and knew something was wrong because he was putting us on himself but instead of bailing himself of treatment when the sick bay was available pressing his housing officer get me there i'm really commissaries going to close i need to go and get some medicine i there's some responsibility petzl has for himself here so instead though he waits to do it the wrong time in the insulin line ask him russell in hey give me what i need right now syringes to hand out to all the other guys a line is dr phil's for the other folks who are also in line he's got other duties than in there i mean it comes down to what's  reaction after roslin tells him get some ice and get some motion back and isn't just shrug and go away instead he's already thinking lawsuit he turns to his buddy in line on a need a statement from you did you hear that did you hear what he said to me i mean who does that why did he do that is that the sort of reaction that somebody who's in pain has no hope that's retribution i'm going to get them now i've lost all these of the grievances  easter verse powell who knew the severity of the condition who disregarded the pleas of help multiple pleas for help from the inmate and then the inmate who actually did indeed suffer direct causal harm due to that nurses disregard their intentional disregard of what they knew about that inmates medical needs i mean this is a unique situation because we all cite the same pa and that's what this case is about non emergency concern i mean all the pain that he went through through the weekend i don't think there's a doubt about we've all twisted her ankle and sometimes the next day it's better hardly anybody who talks about all the stuff that they know is inmates they came get for emergency medical treatment to stop pain instead of  to back in march i mean granted there's very different facts to the case we've got here but judge poe was talking about the standard is a very high standard that we want to have these cases rely on the for talk about the constitution it's important stuff and ate the men prescribes medical care so unconscionable as to fall below standards society's minimum standards of decency to do well i mean that is that unconscionable it's certainly not violet of the constitution that shouldn't be here so all these things are sort of tied in the deliberate in defense seems to deny that a diabetic with a fractured ankle was in pain this is a summary judgment of people that cannot be substantial competent and miscible evidence and in this record of excruciating pain for two and a half days of pain which began friday afternoon there was also an intimation that perhaps mr petzold moved too slowly well once happened friday afternoon we're only talking about twenty two dollars and a half hours between the injury and when he realized he was in trouble was pain had become severe and he went to officer terrell to seek treatment that indeed was the proper protocol that if it seems to intimate that perhaps mr pitts all should have done is stopped a nurse rushed to him in the hallway where he had his moment and demand an examination then and there but it is hard to credit that as an argument when the defense is also saying that it was inappropriate to ask  knowledge of rosmer the required subjective knowledge on the specific kind of nature the specific severity of the injury i'm glad you brought that up your honor the law requires the plaintiff to show at least an issue of fact as to whether the defendant was aware of the risk of substantial harm not actual knowledge of substantial harm it is a risk that is an easter that  is a key element we don't have to charge the defendant with knowledge of the exactly what was wrong and every symptom he had it was his duty to conduct an assessment to find out if what i'm more limpin complaining of discomfort is that sufficient on its own to kind of flag a risk of of harm well your honor there was more than that in this case there was the seeing him limping and barely able to walk see while he was walking which is indicated in the record being told we don't know the exact words biopsy terrill that there was an injury that he needed to hear and then finally being told directly by mr pitts all that there was swelling in his ankle all those things together create a direct knowledge on debate about whether pain medication was provided that was enough on these facts at least at the summary judgment stage it has to be enough under the cases that this court has previously decided the defense can see it's in fact that nurse roslin shouldn't have told my client go violate the rules and find motion from someone else and ultimately what appears to be happening is that the defendant is attempting to escape why ability at the summary judgment stage because mr pett so didn't try again a th or th time over the weekend to receive care that i think has been adequately addressed in the briefs as to why mr that sole did not again on saturday morning say try again to request care instead elected after being denied three times do exactly what a nurse russell said the st time he waited until monday and he suffered because he realized he would be subjected to further disciplinary consequences if he did something else and causation is usually a jury question i s call the nd case of the morning