me please the court mary mass around on behalf of the defendant happily i would like to reserve four minutes for rebuttal this case presents the court with the question of whether qualified immunity applies to protect  lay deputy who purportedly delayed in checking on an inmate for five to seven minutes after a fellow inmate told him the inmate was not looking good and who purportedly did not check on him for forty five minutes during the time that he was in his in you know have you this does not rise to the level of and if amendment claim to begin with but most certainly if a court even were to find a question about that there is no clearly established law that's been identified in any of the briefs that imposes liability in these factual  circumstances first of all in terms of the eighth amendment serious medical claim it's important to understand are earth human and we're not saying once the inmate is found to be unresponsive that doesn't amount to a serious medical risk objective way but that's really looking at the facts with the benefit of hindsight which of course supreme court in this court has repeatedly said we're not permitted to do in analyzing these claims an i was sick and has a fever does not present a serious risk of medical harm and that kind of condition is routinely treated in the jail without calling medical assistance in in the first instance and i'm not aware of any case from this circuit from the supreme court or any other circuit which is said an inmate complaining of flu like symptoms presents a serious medical risk mouth and that also was a case where an inmate had ingested drugs i think what's important here is the officer had no way of suspecting particularly given the facts that the plaintiff keeps  suspected or thought oh my gosh you know he's maybe ingested drugs which that foaming may be a sign of i mean dispose of the thing i mean i think there's testimony or there's that the record the record suggests that  the inmate describe what the sudden onset onset of those type of symptoms provide a basis for assuming that that it should have suggested a need for medical help for the author in light of the change him symptoms really quickly i think there's two points i want to make in terms of the facts both in terms of the eighth amendment claim and then i want to talk about what the case law says the officer is thinking this is the guy with the flu goes by as you say he's resting that's consistent with having a flu there doesn't seem to be anything wrong and then an inmate comes and juice he isn't looking too good he's having a snoring it's a girl gluing sound and there's this pink foam and then we have a very short delay taking the facts is the point of presents them five to seven minutes that's a very minor d i was rereading the cases that have been cited particularly in the reply brief but also the cases cited in the plaintiff's brief last night i could not find any case in which a delay of five to seven minutes was deemed actionable under the eighth amendment and in fact most of the cases are dealing with a half hour was the shortest in the symptoms were much much worse the person had been vomiting the person you know all sorts of things and many of the cases symptoms have gone on for days and medical attention has been requested for days in one of the cases the person is in a padded cell and  even when the psychologist comes and asks open the south of this person it's treatment there's a delay this case is different it's a very minor delay and immediately when the deputy gets to the cell the deputy is trying to rise raise you know rouse the guy he clearly is concerned and he when he can't rouse the guy you this is the co what is a serious medical risk and not as the court knows that he has an object of component and a subjective component and it is in this case important that you are in a jail that you have a lay deputy who has lots of things going on and who gets a report about somebody who has been exhibiting flulike symptoms no knowledge that or were suspicion that there present when the last thing that happened was the guarded been by there and looked at the person was asleep that your position is in that situation position would be that relative not to the subject of company and the point at which he actually perceived the risk that point doesn't occur until he's at the the cel certainly not rising to the level of any to amendment claim or even a gross negligence claim under the state and analysis and the case law from this court is very supportive of that in fact in one of the cases where there was evidence that someone might have taken drugs and did have the pink foaming at the mouth the officer  did not get medical attention and the circumstances were much worse so at a minimum deputy berlinger should be cloaked with qualified immunity that's what the supreme court has said  recently said even more strongly i think then some of the cases in the past that when you're analyzing the body of law that would put somebody on notice of what they're supposed to do you have to look for a firm clear body of law that makes it an obvious mistake even a mistake about what your obligation is is not actionable under qualified immunity and in this case if if you look at the body of law from the u s supreme court this circuit even if you include the district court opinions and the pinions from other circuits which it's questionable whether plumb hoff's as you're supposed to consider there is no law that would say a deputy in these circumstances with such a minor delay could have known that that would be deemed to rise to the level of  claim and and thus it seems to me the district court's decision should be reversed and that ground i see that my red light is i'm happy to answer more questions but i not perhaps i'll save the rest of my time for  i've briefed it this way i've listened to the yard and was submitted again they have not conceded the facts as they're supposed to do the judge found that there was a serious question of fact berlingot did when he was told to go check on this prisoner is there a serious question of fact as to how long it took him from the time he was told about the foaming at the mouth and burning up to the time he got to the cell yes well i think there's dish this is where i don't think they can see the facts the judge bases decision saying berlanga says that when he was told he went right to the cell so there was no delay according to bowling according to the affidavits my question is the way at least it's been presented here the defendant has let's assume the five to seven minutes that the plaintiff's says ok was the time lapse so my question is if if we assume the five to question the question before us really is if we take the facts if we take the facts as you say they are and so we say there was a five to seven minute delay from the time officer mr  was told about the condition of the inmate in the cell right and the time that he went to the cell to investigate if we assume it was five to seven minutes as the plaintiff says that it was then are there other factual disputes that would stand in the way of our being able to make a legal determination here no i think no i don't think there's there's other free spirits ok so the question would be under the circumstances of what we're going to was told is there clearly established law that says that he should have gone faster that there's crack because he was in good was in dire distress he is going he's not talking his color is bad and he was asked to check and he delayed checking under the farmer v brennan test which is sort of the one we all go by right and i don't think there's any question about the object of company but looking at the subjective of that test what is the evidence in this record that berlanga knew perceived that this was a serious risk and disregard it can i answer a little bit i'm going to quote from black for versus kalamazoo county three ninety federal thirty eight ninety six circa two thousand and four if the series of prisoners need for medical needs is obvious even to a layperson a constitutional violation may arise if you're told that this person is goodling their color is bad and they're not talking and you need to go check out you can't just put your head in a scene and and say i didn't realize that before this guard was informed about it in my head he actually about four fifteen and then about nine minutes later seven or eight minutes later he was told by howard the affidavits have a different fact what are the facts that contest they state that there was a five to seven minute delay from that i'm talking about that right what i'm talking about is the amount of time it had been th david they would have occurred before he said he checked on he says he made his rounds at around four fifteen but the effort basis for saying he's lying about that he made the rounds of four fifteen no i don't i don't believe so but as he made the rounds he there's a basis to be looked in the cell his purpose was to look in the cell and he looked in the guy was as what he says that's what he says ok he also said i am digressing bit he also said that he was told that jesse could not do is shift as a housing worker that he was hot and burning up and that was around the beginning of the shift at three o'clock now if you believe if you believe we're going on that he did make  check seventy five minutes later at four fifteen but there is some contradiction because the affidavits of lost and in short put the time that he was asked to check closer to four o'clock so that's a number another factual question was did the time that he was asked to check on him occurred before or after he made his rounds at four fifteen he said he made his rounds at four fifteen and that he poked his head in and good appeared to be sleeping and so forth but there is some again different timelines and then i would refer to you that short made a timeline which was tough and skated by the officers which should put inferences in our favor cording the case law and the district court really didn't hold on that but i would submit that's another argument that i'm presenting for you to affirm the district court's decision i just don't see where the factual dispute is exactly what the factually ok the factual dispute i mean iraq says from if you believe the prisoners he did he delayed five to seven minutes and checking him ok that is true ok and then we say that that's deliberate indifference person per se even though even if we assume even if it's true that he had just looked him few minutes before in ten gurgling that his color is bad that's enough for a lay person to get medical attention and according to the case law that are so right you just look at the guy three minutes before but he didn't look at him he didn't look at him he only looked into the cell any plead to be sleeping he doesn't know if he was going or how you know that he had i mean how do you say he didn't look at what he says he did he looked at him ok he looked at him but he would not  supposedly sleeping so he wouldn't have known all of those things that i just listed plus you know there would be a dramatic change if somebody sleeping and then you know you're told that they're gurgling their color is bad near the end and you need to go check on it that's a big change so it's your position that the assuming the fact  correctness of the officers testimony that he had just looked at him that them this sudden onset of the symptoms that would've been enough to put the ordinary reasonable person on notice that there was a serious medical issue patient i i think it would because i think that's a dramatic change and i don't mean to you know argue about words and i pod dice to you if i didn't mean to argue about that but i'm saying that looking in if you're doing  cell check is not the same as hearing the things that he heard from the prisoners and those are the facts that you're basically saying and not understand that once he got word that he was gurgling he should immediately have dropped everything and gone down there despite the earlier situation because this is a dramatic change and he there was there is evidence there was no evidence that he was engaged anything else he said it was a just a couple points and rebuttal first of all i think it was clear from the discussion for purposes of this appeal unlike in the district court we are conceding the five to seven minutes but we believe there is no evidence to suggest perceived as serious risk of in medical injury until he got to this and the fact that he observed this inmate sleeping there was no reason for him to suspect the ingestion of heroin that they've met thing that he proceed should we be looking at whether he perceived or whether he should have received the test is both objective and subjective in the subjective component has to do with his perception it's not only that there is evidence from which someone could draw an inference he has to have drawn the inference that's what the case is you have to have a thought both of both subjective and they have he does he does and it seems to us and this record that just simply can't be shown and then even getting beyond them when you get to the qualified immunity contacts particularly under the supreme court's recent case there simply is no case law that's been stated i was reading in fact the case is cited in the plaintiff's brief for this point about the delay and i actually think they were supportive of our position i wanted to mention if you look at the waiver of a should own case the medical symptoms there were much worse and the court said the officers didn't know about the cocaine and and they were not going to be held liable if you look at the waca case where there was pink foamy drool again the court rejected liability there are cases cited in our brief and i just wanted to point to in more leda the inmate was vomiting asking for treatment convulsing and treatment wasn't provided for days those are the kinds of cases that the court has said yes that's that's going to state a claim on the other hand there are these cases even with me drool in one of them where the court has said no that's not enough at the trial court level and the case went through the mediation and i have yes i have to say in fact we were talking about it before court this morning my clients very much want to stand behind their deputy in this circumstance they believe that he is a good deputy and that he didn't do anything here for which he press believe me i did i just want to address the point about mistakes though i think it's very very important to keep in mind that the main claim in this case is a constitutional claim in the u s supreme court has repeatedly says and an honest mistake is not a grounds for liability so even if when berlingot was told there is this phony substance in this gurgling heavy snoring and he mistakenly concluded this was something he needed to check on but he didn't need to run it seems to me that would not rise to the level of a constitutional claim and certainly there's no case law that would have you know  my point simply is that's not dispositive of the of the case you know i was only making that point with respect to the discussion about does element and some of the considerations  and there are others which go into thank you counsel i think we have the arguments in hand the case will be submitted