managed by corrections corporation of america they run some of the prisons and to say most of them are run by the state he sued c c a and for their employees after he fell down a flight of concrete steps outside while returning from his work assignment i would like to begin by asking the court to reverse the district to properly apply the summary judgment rules rule fifty six states that summary judgment is proper when there are no material disputed  and when the defendant is entitled to judge miss a matter of law the district judge in this case did not follow the rules by seeing the facts in the light most favor and also drawing permissible inferences in mr image's favor for example the district judge wrote that he received an abundance of medical care that's a judgment for the jury not t absolutely a big difference big difference well i guess i was thinking that what judge campbell was saying was he was making statements acknowledging that there were many instances in which the care was negligent the opinion is a little confusing i i think that judge campbell noted that there were a number of instances of deficient of so contend they were deliberately in different acts and if you look at the older case of believe it's the celeste case a series of independent substandard acts can be circumstantial evidence that the defendants were deliberately indifferent and we think we have this here with the failure to provide the medical records a whole series of times he went to a specialist they didn't bring his records to six different specialists the defendants were informed that his records were not going with him to starters when he got to his doctors they could neither diagnose new treat him because he had a back injury in you needed the m r i to see what was wrong mr mitchell we think one or two this isn't says mightn't some some way be characterized as negligent but when the defendant's or informed repeatedly by mr mitchell orally in  writing by his father and ultimately by the oversight division of the tennessee department of corrections called clinical services that mr mitchell was not going to appointments with his records his doctors were not getting the tests they order on two occasions mr mitchell was ordered by his doctors that they consider giving him stewart injections for the pain both of those recommendations were followed and ultimately one of the surgeons at nashville general recommended that he received back surgery and this particular surgeon was a orthopedic surgeon he recommended that he go to a neuro n for this that that was the defendants deny that this surgery was even recommended for a number of months and finally mr mitchell was sent to a neurosurgeon for the surgery but with the records naf is still in place we we believe that they the recklessly or intentionally sent someone else's records to the who ultimately operated on him you have evidence of that but we have evidence after after after the records were sent to the they presented a document it's either it's either docket it's either the exhibit fourteen fifteen but it's a note purporting to be from vanderbilt reacting to whatever ten i believe the doctor named that allegedly looked at that two thousand and ten in mar i made conclusions that were completely different from any other m r i results and also the next m r i this was the odd man out this the results that doctor named that reported once he looked at whatever it was that c c s sent them he said this man doesn't need surgery he doesn't have the symptoms that were reported in prior m and the final m r i so whatever it was that they sent in they did not produce whatever it was they sent to the district judge for the the motion hearing on the injunctive relief but they did produce a document that did is inconsistent with all the other documents from vanderbilt has no heading it does refer to mr mitchell by name it doesn't have the signature of god in the matter i and all this was reviewed by the district judge in the district judge found that there was i believe his quote was a certain disconnect between the prior m r i records and the one in the report that they'd gotten from dr in the matter as a result or do you need to this particular arise this for each defendant so that you know how would you say for instance that linda mood or how would you say that stedman were deliberately indifferent or at least there was a genuine issue of material fact that each of them individually was deliberately and for in different would you like me to sort of go through them quickly well take whoever you think is the worst and show us why that person was deliberately indifferent first of all let me just briefly say that these allegations of deliberate indifference are supported by independent evidence multitude of independent evidence you've got mr mitchell seven david she's got his complaint of course we also have the deposition eventually steadman who's the health administrator we have copd is medical records that really what are some of like the best things orange light is on so you're going to have like one minute left to pick your best case and tell us why that person was deliberately indifferent angela steadman the health administrator was clearly deliberately different she has a statutory can finish just what the worst thing that she did was to misstate his records she she went in when she was asked about her scheduling decisions and whether or not the doctor's visits it been accomplished and whether or not tests and been given she gave false information not only to my client but she warned and to clinical services the investigative arm tediously she flat out gave false information to all of these and we believe that when you're telling stories about what you've done that indicates the subjective state of mind that is necessary ma'am please the court i'm john york i'm representing corrections corporation of america and individual defendants were named in this action this court should affirm the district court's grant of summary judgment of c c a and individual defendants because the proof shows that c c a as well as individual offenders were not deliberately indifferent to mr mitchell's medical care these cases deliberate indifference to medical care usually falls into two categories the first category where there's no condition and essentially no medical services provided whatsoever and then the other category which i would contend that this case falls into where there is medical treatment provided there's allegations that the treatment was so lacking to what was pretty poor here was that it wasn't the best medical treatment provided joins more i would agree with that and want to argue against it however we look at the end of the result mr mitchell got the treatment that he ultimately was medically your honor he reported to medical with the complaint of falling down the concrete steps he was given just over the counter pain medication he didn't return to medical for six months after that so while that period of time had the first six months district judge said he was careless and irresponsible so why isn't there a fact question as to whether some of these defendants and i'll pick out stedman and linda why isn't there a fact question as to whether those two individuals were deliberately and different if the deejay says they were careless and irresponsible there's not a fact question your honor because by and large the facts are undisputed in this case there's some dispute as to the characterization of some of the facts but as far as what treatment he received when he received it what medical providers he was taken to what dates he was taken to those are lauren and said that stedman misstated the records gave false information regarding what she had done which indicates the culpable state of mind so the facts are not disputed you say that's my friend's characterization of the facts that are in the record  show that it was a lie or that it was a misstatement other than mr mitchel characterization that it was in this case so we don't find that there's any factual questions so it mitchell characterize  mr mitchell says a number of things but they are just simply his opinions as to what transpired in this case or wire in your people's things just their opinions so you have two different sets of opinions but your honor what my clients have done was respond to his grievance and mr mitchell through his affidavit states that that was a lot so that's what we're dealing with you know my clients are coming back saying no this wasn't a line they're saying this is what was written this is what angela stand prepared in this is when the word reviewed and approved so hypothetically let's say that one of the issues is the sending someone to specialists without m r eyes that have been done that are essential to the specialist's diagnosis and decisions regarding treatment  the failure to provide the right tests information that's already existing m r i is can that ever become deliberate indifference i believe in that hypothetical your honor where you have a prison who is sending a patient a prisoner to a specialist that that in of itself would defeat any deliberate indifference claim whatsoever suppose hypothetically that the specialist says i can't do anything i'm an orth can't do anything until i see an m r i prisoner you haven't come with an m r i come back to me with an m r i and suppose hypothetically the prisoner goes back and tells his warden or a medical person you pick  whoever i need to take my m r i the next time and suppose hypothetically the prison sends the prisoner back again without the m r i if that were done repeatedly could that show deliberate indifference i think based strictly on that hypothetical just if it happens repeatedly know that in the south when it showed deliberate indifference i think if you add some different facts to that hypothetical that perhaps we might have a showing of deliberate indifference so the facts i suppose could be that the prison officials send each other notes and saying isn't this funny we're sending the prisoner to this doctor repeatedly but we're now sending the m r i is that the kind of added facts that we would not think so your honor i think if we have facts where the medical personnel are born whoever you know  prisoner in response to i am going back to the specialist i need to have my him rise if a prison official said well we don't want you to have effective treatment so we're not going to send it or we don't like you you know something there has to be a smoking gun essentially in order for there to be deliberate indifferen i believe in that situation yes ron if the prison officials are sending inmate out for specialized treatment or for examination by a specialist in the appropriate medical field for that medical condition is for  because you have to comply with various things exactly exactly this for is to stay run of the mill negligence client i think that it would have to fall under probably medical malpractise claims are i do believe for statue of limitation purposes that he's he's missed the boat on bringin accident so do you think there's any difference among the various individual defendants that you're representing certainly in terms of their involvement with deliberate indifference yes or if we're to go down the list starting at the top we have the chief executive officer of corrections corporation of america damon head injury the only involvement mr hunter has in this case whatsoever is point out and claim this brief is that he was served with this lawsuit that said and he's the chief executive officer has absolutely no involvement the day to day operations of a particular facility especially on the day to day operations of the delivery of medical care to mates so i would submit that he clearly has no personal involvement that could support any sort of liability under section one hundred eighty three i think our next level of defendants would be more than linda mood and the system where daniel pritchard while both of these individuals or on site of the particular facility that mr mitchell  was housed at during all relevant times these are administrative personnel they are the administration of the entire operations of the prison and again these are individuals that have any day to day involvement in the delivery of medical care to end mates the only allegations of any personal involvement concerning either linda moved or pritchard is as far as linda mood is concerned she did review the grievance that we spoke of earlier and  and just receiving a complaint like that would not rise to the level to where in you i belittle assuming that there was a showing of deliberate indifference could attach to either one of these i think you know perhaps the most appropriate in vidual defendant in this action would be angela stedman as a health services administrator she was responsible for the day to day medical care at south central correctional facility while mr mitchell was there and was intimately involved with all of the medical decisions in this case how it would be in charge of both records and for example getting drugs she'd been in charge of oh yes her story is that the organization of the prison would go all medical services for that facility would be under the supervision but one thing this is actually a question for both of you just to try to figure something out so the thing that helps you about this case is that the main problem or a central problem is the bureaucratic snafus with the records but by saying bureaucratic and snafu does it does suggest more negligence and deliberate indifference the thing that starts to hurt you is it happened for a long time so this guy's got serious back pain he finally i think gets the surgery he thinks is right yes i think he's satisfied with the surgery he got so in the sense of forward it's good but the claim is that you know needlessly had this pain throughout i'm curious and i guess it's really for both of you it's seems to me that one way of either accentuating the deliberate ind nt difference or undermining the claim is the extent to which he was getting the medication the pain medication in the interim so how much is that helping his claim or how much is that hurting i mean i think it hurts his claim your honor in that he was getting medication he was getting some pain medication there was at one point where he stopped taking the pain medication because he claimed that it upset stomach and he couldn't tolerate it however that was made available to him and another replacement another specialist he was taken to recommended that he follow the conservative treatment plan a physical therapy and medication regimen and perhaps if that doesn't improve things then to move on to a surgical intervention we had another provider who suggested that there should be a consultation with a surgeon however that that particular doctor dr lim board pulled out of the treatment said but i can't do it here we do have the vanderbilt clinic in which there was a question of whether the correct records were sent to that provider not what was received back in the for from that provider was there doesn't appear to be a problem let's monitor him he's done the records that were according to your opponent records for a different person and it didn't even have mitchell's name on the my right or wrong almost the record that came back from vanderbilt is the one so your point was that there were lots of different opinions from these various doctors but is part of the reason why there were lots of different opinions because people the doctors weren't getting the full records i e the m r i eyes that  that could have played a part into its run by i don't think that's the sole cause for there being very diagnoses from the different doctors the doctors did have in their eyes to review each of the doctors examined mr mitchell some of the doctors perform their difficulty in obtaining the earlier ones but i won't disagree with you and tell you what matt matt here's here's my question about this case it would certainly be unusual in a case of this type where there was so much medical attention over a period of just said there was an issue about whether the defendants were deliberately indifferent but when you look at the fact pattern in this this quarter in your the court to do because that would essentially be counter to the clearly established eighth amendment case law with regards to an adequate medical care court or not don't take the role of second guessing all the medical decisions that prison officials make what courts are to do under the eighth amendment is look to see or prison officials providing medical care it might not be the best medical care it might not be the most efficient medical care and it times it might be medical care that has an element of negligence to it but that's not what the eighth amendment requires eight minute doesn't require that a prisoner receive the best medical care available minute provides that prison officials take serious medical complaints and they take action to try to address any medical problems that inmates have that's what happened in this case it might take a little longer than it should have it might have been rife with errors and people dropping the balls along the way but ultimately that ball was recovered by c c a and they took mr mitchell to the appropriate specialist who performed the appropriate medical procedure  part of the clay or so when when did that happen and when was that what's the evidence that that was something more than a mistake i would have to refer you to the medical records because if i answer that i'm likely to be incorrect but ok let me say this he was ordered in addition to some of the medication he was given some pain medication he was also given muscle relaxers insubstantial it's at one point it swelled up his head and that's one of those medications i believe it was would refer you to the clinical services report that said that for the first two years he was treated conservatively and this was not effective in managing the pain and i'm not aware of all the ins and outs of the treatment i believe he was given ibuprofen and some other this is a follow up to judge moore's earlier question to you but be specific what the records are the big complaint but worth the time where it's not a mistake i mean where's the time where there's evidence that this was more than a mistake were the wrong record was signed or the record wasn't sent in time for the appointment with the evidence that it was more than a mistake well you have eight visits with specialists six of them with that m r i's i think that's a little more than coincidence or series of mistakes considering that the c c a was informed every time the that the records were missing at some point this is just incompetence or inefficiency it becomes so reckless as to be deliberate indifference doesn't have to be intentional it's got to be at least reckless and we  it is an admitted that mr mitchell got the surgery and it was relatively successful but whether or not the prison ultimately provides the needed treatment is relevant to the deliberate indifference claim we have a recent case that came out of nashville where it's belayed guess versus metropolitan government this was a lady who was shackled while giving birth and she sued because of being shackled during the birth process she is allowed to recover even though she had a normal delivery there was jones versus muskegon he was not treated for three months for color rectal cancer he can recover for that three months while the fact that he ultimately received the surgery doesn't bar his client but on the other hand the fact that he did ultimately receive the third degree is some evidence of the state of maryland with which defendants were operating you are i believe that's evidence in the state of mind of the federal magistrate judge is taking a look at it at this point in wanted to have a look at all these records and get these people in court to see what was going on so the surgery  occur until after the lawsuit was filed that's correct and after him michael my client filed injunctive relief to get surgery but that would certainly cut against using the evidence in the way i suggested but it wouldn't it also wouldn't totally preclude it about the recommendation for surgery the recommendation for study came from dr limbered in november of two thousand and ten there is some dispute about this and again we are talking knowledge it's juries province to rule on whether they had subjective intent so if this particular dark hair recommended surgery in the fall of two thousand and ten what did stedman do in response to that doesn't the person who recommends doing it say but someone else should do it he did for two reasons he wanted to get a neurosurgeon and also the hospital was not capable of doing news you're not questioning that doctors judgment right no she was asked by clinical services to provide records and when she did she told clinical services that an m r i had been a made available for dr limbered to review he said that she said the that there was one other thing the steroid injections dr limbert has a report where he states i last saw mr mitchell in february request the injury that was never done are also requested that is m r i be made available for review that was never done suffice it to say this gentleman symptoms that remain the same or gotten worse and we still do not know anything more about why he is and those are the doctor's notes angela stedman that told clinical services differently when asked by them in our contingent is that yes she did lie about it but it's not just our sense of the doctor reported clinical services found that none of these things had been done thank you very much thank you  the argument the case will be submitted with the court called the next case