it please the court your honor i'm full to let and i represent the appellate troy cooper your honor nelson mandela wrote in his book long walk to freedom is said that no one truly knows the nation into one has been inside it jails a nation should not be judged by how it treats its highest citizens but its lowest citizens the facts of this case arise from a what we would come to call a prisoner a lawsuit against the state there's millions of those years they're very expensive for the state system but this is a somewhat one percent case and i say that because the information i read said about one percent of the cases end up at trial and this is not a case were a prisoner suing because he had a broken cookie he received a magazine that he couldn't receive a magazine like or he was suing the state for future lost wages while serving life without parole this is a case where a plaintiff who has been incarcerated for more than fifty years and has never sued the state was transferred to a medical a california medical facility which is operated by the california department of corrections and rehabilitation and the reason he was was that in about two thousand  five he was not able to walk one hundred fifty yards because of issues with beans in his legs so he was transferred to this facility i believe it was in april of two thousand  and the original diagnosis was clouded patient which is you know a vein problem and ultimately after he went to this is silly and saw medical care they diagnosed him with peripheral vascular disease he's underwent extensive surgery and i believe there were four surgeries and during this time he was prescribed coumadin which i'm formed as a blood thinner and he was not even at various times he's alleged that he ran out of a prescription i don't really understand how that happens or or why that would happen but that was what he alleged on or about december fourth he ran out of his prescription again and december eighth he presented to the medical facility for testing and he was complaining of right leg pain mr cooper again was looked at and they didn't really do says that that was never the case ultimately he didn't receive any medical care or any testing related to some clots or or some kind of vein problems and ultimately on december twenty ninth he was again seen by a different doctor who immediately noticed his leg was cold he called an ambulance when they were told the transfer was going to get two days i believe he was actually helicoptered to the facility which ultimately th  and he was alleging under section eighteen i'm sorry under nine hundred eighty three a deliberate indifference to medical needs as part of this mr cooper had attempted to find counsel and as you would suspect that when  lawyer receives a letter from someone who's incarcerated it's not the kind of client that most lawyers would jump it taking first for sure so there's so we start off right off the bat that the incarcerated defendant has a difficulty finding counsel to represent him so he ends up representing himself he files multiple motions to the court to appoint counsel i believe there were three of those different motions the court in denying those motions cited to the relevant authority however the court basically bootstrapped the idea that you're a prisoner and every prisoner has limitations and the fact that you only get two hours a week in the law library is not a reason for me to appoint counsel for you count if counsel had been appointed what would have happened with respect to mr cooper's ability to put on his own expert th say would you point was of counsel carried with that an ability to hire an expert on his side well whether he could independently hire an expert i haven't found any authority that supports that other than maybe the court's inher authority to order someone to pay for that but he could file a motion for the court to appoint a neutral expert at least so there's some person that other than the treating doctor has a witness who's going to be able to say yes  if counsel had been appointed by the court who would have paid for counsel well if the court would have appointed a neutral my understanding i'm not talking about it i'm not talking about counsel not not expert if the if counsel had been appointed who would have paid well should have been one of two things that could have been that counsel would have been on a contingent basis or it could have been that counsel i would have done it on a pro bono basis talking about counsel i know we were you were asked to but you didn't appeal on that basis that he was tonight counsel well your honor we appealed on the basis that which is i third issue which that the process a prisoner to find it wasn't given notice of the requirement of expert witnesses that you didn't appeal on the basis that he was denied counsel specifically outlined that we did not that's true  so the idea on the point of counsel we realize that a point of counsel is a privilege and not a right and it should only be allowed in exceptional circumstances the problem is that this court order didn't address those exceptional circumstances and there's well i couldn't find any ninth circuit authority that addressed the exceptional circumstances and allowed appointment i did find a case which was the palmer versus val particular issues affect their case whether they're organized whether they're able to represent themselves and the motions that mr cooper filed showed that he was procedurally defective he wasn't really filing evidence  support of those these motions were very skeletal they might have served as an outline for a good motion and responses to summary judgment and and other things but they were not detailed enough where  is that medical malpractise is on this rest i mean it's just so obvious that it wasn't tendonitis and he should have been treated for what it was i don't even know how he ended up with a jury verdict that went the other way know by us yes problema yes ma'am ok so did the court want me to address the other three issues that were alleged in the opening easy pretty straightforward i mean you knew there were four motions for summary i mean motions for put my counsel and that could have been placed directly as a issue in the brief and it wasn't correct really i believe the language of the opening brief included lawyers well experts in language in the brief argues about the insufficiency of the rand and why it notice talks about the a life sentence for a for reference and then it makes a general catchall sort of that there should be more notice on certain provisions experts but one issue could have been a motion for an expert nineteen fifteen the allows for witness fees and it doesn't limit it to witnesses it could be experts we believe so i believe there is room there so what are we supposed to do with a case where we have point counsel where it jumps out at you from the pleadings and what happened in the district court that there's an appealable issue with respect to whether or not the district judge appropriately denied appointment of counsel at the trial court level the appeal is not brought on that basis when we appoint counsel we don't list all the arguments why we appoint counsel but what happens if the basic reason we're appointed counsel is to raise that it doesn't happen are we allowed to ask for supplemental briefing in which the point  why it is sufficient to reverse should the course find that that is an insufficient reverse then we would like to supplement well i must am somewhat handicapped on the question as to whether or not the district court heard if it did  waived i think it would be inappropriate unless there was some showing which there has not been either a showing or even argument that there was any manifest injustice in the with you not briefing this in the first what they did they did br or you know fine expert witnesses or it's just does seem that it was there he was very handicapped in the pursuit of this case and they do argue that the whole t counsel representing the warden and state right the medical personnel who were sued yes there was a doctor a nurse and a pharmacist and who is the counsel for them i was counsel you were counsel just another deputy earlier in the case court that my view is that something between the court and the so you think no position as to whether mob council should be appointed for mr guber correct correct yeah but i certainly take a position here today and that is that the court did not abuse its discretion by denying counsel and i just want to address something that why not go before your trust and why not why didn't the court abuse its discretion five denying counsel well because the plaintiff appellate did not present either of the factors support either of the factors for point of counsel which requires extraordinary circumstances and specifically a likelihood of success on the merits and an inability to articulate his claims in light of the complexity of the legal issues and just looking at the first factor  he did not even argue or lend support to the position that there was a likelihood of success on the merits the closest he came to that in his motion was to observe that while as a pro se plaintiff his pleading had been screened at the beginning of the case and was found to state a cognizable claim that was not frivolous well that is neither here nor there that just means he has a case it doesn't mean that he has any likelihood of success on the merits and so not having raised that or it supported it with facts that's enough by itself to show that the court was within its discretion to deny the motion just on that basis alone so how much evidence if evidence even the right word did the district court have in front of it at the time that this motion was made or the various more times the motions were made in terms of likelihood of success i mean did he did mr cooper have in front of the district court the story that he sought to tell or not absolutely will why is that not showing actually a fairly high likelihood of success you've got some guy who has a clear problem the doctor dr chan seems incapable of even asking me to take off his  how tenuous this claim ever was doesn't sound like a tenuous claim to me at all it sounds as though dr jenn was incompetent no well first of all dr chen was not incompetent and the evidence before the court and in the record is overwhelming that he provided had a real lawyer and expert witness he could have come in and said these two things have nothing to do with each other you might have them both at the same time but you do different medical because of that i can is that the question was the reason his leg was amputated is because he had a chronic progressive condition that eventually resulted in a severe peanut event that they that after a multiple surgeries over a long course of time eventually they could not save his leg how many surgeries did they have on him he in april two thousand and eight he had surgeries to restore circulation then in november two thousand and eight right with the dates it's off the top of my head he had an angioplasty to restore circulation which was partially effective and then eventually in january he had another procedure that last moment mr cooper even without counsel was free to call other experts he had i believe seven vascular surgeons don't quote me on the number but it was it was definitely more than one it was more than a few they were listed in pretrial report  he was instructed by the judge he was given him part of the scheduling order for the trial instructions on how to call a witness to trial either through subpoena or voluntarily there's no record evidence that mr cooper ever attempted to do that and so he had an expert evidence available to him and we can infer the fact that he did not call that is because it would not have supported him and there's every reason to think that if what if this were a competent lawyer i think that would be a legitimate entrance i'm not sure here with a pro se person with  are two pieces to this test on your side of the first one which is to say likelihood of success and the other one is a complicated legal issue right now i'm not sure the legal issue here is actually all that complicated of  we're doing a state in the legal standard legal standard is was there deliberate indifference but does complicated legal issue also mean complicated factual issue leading to the legal determination it could i think they're intertwined however i would point out that this is in this particular case deliberate indifference this is not a complicated legal issue at all and that's illustrated by well first of all framed by mr cooper's own claim which is that dr chen did no examination at all i went in with complaints of pain history aquatic ation i had a history of peripheral vascular disease disease and prior surgeries and he did nothing he didn't expose my leg he didn't look at it he did no examination at all on multiple occasions that is not a complicated legal issue that either it was what happened or it didn't and that's would stand or fall on mr cooper's credibility and no lawyer would have had any effect on whether mr cooper was credible when he came in and said that or not and no expert would have because no expert would not would have been present at that event either they would have only been able to comment on well what was the history of this disease how did it progress and what care was provided and i want to emphasize again that the evidence is not we are not going to we should not assume that dr cooper and mr cooper's version of events is what should have been accepted there was never that was enough of certainly to get past summary judgment that was you know he said he said there's a difference of opinion but there was never any reason to believe him he was there was no credibility all the evidence was overwhelming and replete in the record that he was not an accurate historian of any of his medical joint puts puts in the record with respect the treatment by dr chan of mr cooper prior to his encounters there at the end of december the record is that dr chan himself affirmatively picked up mr cooper's chart when he saw that he would not have therapeutic levels of blood thinning medications specifically for his peripheral vascular disease he took that from another doctor so that he personally could handle mr cooper's care ordered he went and did this happen this was before this was and he and i want to say april was different between april and september and he started ordering regular lab test to check the blood thinning medication and he classified mr cooper as a high risk patients so that he could get regular scheduled visits he conducted those scheduled visits in september twenty two october late october early november late december all those were scheduled by dr chen for not watching these the show dr chen has been is treating physician here for some time before he shows up in december with the leg pain yes and specifically for peripheral vascular disease that's why the evidence it was never going to support a likelihood of success on the merits because it made no sense it would not only made no sense why would chen pick up his file i'm going to take care of of you i'm going to take care of your peripheral vascular disease i'm going to order labs i'm going to check them i going to adjust your medication i'm going to have regular visits i'm going to classify you as a high risk patient and then he comes and he doesn't do anything that doesn't make sense and in addition to that it was contradicted by all of the medical records that the medical records showed that a mr cooper forgot about entire medical visits with dr chen i mean from that alone  strong inference almost necessary inference is we can't count on and mr cooper to tell us what happened at these visits we're going to have to look at and see whether it's corroborated and it wasn't it was contradicted and just i see my time's running out if i could just take a moment to run through how articulate he was in advancing his claims the most important thing which is sort of at the end of this list is mr cooper's closing argument at trial that's what he's there he's by himself he's presenting his case to the jury and he very articulately expressed all the elements of the claim all of the facts that he felt supported them his theory of why that constituted inadequate care how it caused his problems and then he went through the governing law i why shouldn't they be and why shouldn't medical records the end yes the district court was concerned about why should these records not come in there the department's own records they're obviously authentic and genuine and my response to that was yes there testifying and my my only objection to any particular record was that it actually come up in testimony if it didn't come up well then it's not particularly relevant to anything and it could be confusing to the jury but the records themselves did come into the court even moved in additional records on its own motion and that was fine everything believe that mr cooper asked to come in and can ask do you have any more information on how  counsel is a point when a judge does find all the factors of extraordinary circumstance and likelihood of success and ability to handle the issues what's the procedure in your in eastern  district of california do you know what the procedure is or the circumstances surrounding it can state from our defense perspective where we don't really know what goes on but will receive an order stating that the court has elected to appoint counsel and as some harmless error analysis and that was never addressed as well and the question is what would counsel do if they had been appointed before the district court and if this were remanded what would counsel do and it's this is going to be the same case either they're going to believe mr cooper as to what mr that dr chan just did nothing despite all the medical records despite his credible testimony despite you know the all the evidence or they won't  he was never going to win the way it's set up now the doctor you'd know even though he testified as a lay person he's an essentially his own expert he spoke in medical terms he knew what he was talking about mr cooper yes who knows isn't personal medical records but that's far from the term where that's the standard of care whether the diagnosis is correct whether you got the right treatment whether or not getting his her shift unfilled for eight days made a difference it didn't make a difference