five into mr metcalf appleby's knew that mr metcalf required daily doses of rejection medication and they also knew that failing to take those medications for even one day could jeopardize medication at the prison pharmacy they also are really failed to provide him with the third and the rejection medication called in your am further there on able to maintain therapeutic levels of anti rejection medication in th jury i don't believe he suffered on oh what does the record show or the record shows that he suffered from intestinal difficulties bleeding gums but your honor is correct he did not as a two and and so i'm having difficulty understanding how the medical care he was provided the main complaint being he wasn't being given enough of this medication can give us a cause of action because of harm that link to having too much of the medication i don't see a this medication on a daily basis for a period of time and after that anything for fairly brief periods of time i'm not writing that's i can think of a cause of action in finding a causal link i don't know that i i will unfurl from general knowledge that missing a few days leads to bleeding gums or any other physical amount of it well your honor i guess i'm asking the court to draw it for abuse consider that the facts warrant the inference that the failure to provide the medications on a daily sort of religious basis resulted in some sort of problem maintaining therapeutic levels of the drug later on i grant you there is that that i might be able to infer or at least say that there's not a compelling enough case to justify summary judgment but if it's the only understanding or only thing in the record at least all that then applied in the brief is in terms of what causes the whol is a high amount of medication is receding and the fundamental complaint is you're not getting enough medication there's a disconnect while you're on to the doctors in an effort to boost the levels of cycles whoring in his bloodstream increase the dosage of the medication at one point but there's still an instance here where he wasn't getting three different kinds of drugs and whether or not his his harm was caused by not getting enough father too much of the for the district court's warrant the inference that it was the doctor's failure to adequately provide medication that were that was the cause of these conditions and i'll also add although there was no structural harm to the kidney we ordinarily you can't bring a lawsuit saying there might be harm in the future i understand and i understand so i think you may well be right and he may well have a cause of action once there is a physical manifestation of harm that is if the district court's conclusion that the claim that he was let's let medications for any rejection of kidney for eight days because of the idaho state judge would you agree with that that your collateral used up no your honor i'm not and whether you call it ra and also and also the ibuprofen also the ibuprofen there are but the issue before the district court was whether a series of failure to address or through provide him with medication prostituted and you know deliberate indifference so my my question and maybe even clear it up your claim here is that the february two thousand and two may two thousand and two and august two thousand and two add up to four occasions four different occasions of difference periods of time correct and you're not seeing that the february two thousand and two as well as the ibuprofen kind are barred by issue preclusion no you're not and i'm not your honor and why is that indifference to providing medication when the idaho court has already found that there is no breach of any duty well very nice and very based on that one instance the idaho court concluded it was just in yes but when you add on the other instances in this quarter seven mcguckin versus meth at a repeated failure provide medication strongly suggests an instance of deliberate indifference and in any event your honor the idaho litigation concerned it the record and it's a difficult record never actually litigated the eighth amendment and that issue so claim preclusion issue preclusion whatever you call it would not necessarily apply i see that i'm running out of  would add to the court of the blood bleeding gums qualify as actual harm for purposes of ninety three and lot of ground but i think one of those his arguments on notice that you had a patient who had serious medical problems yes we could see that if there is needed certain medication right you fail to stock it insufficient amounts and he and i do i do i think there's two ways to comment on that the first is the standard in order to prove the liberty and difference it's not sufficient as court is aware of prove negligence or even gross negligence what must be proved is a culpable state of event i would invite the court to consider the fact that those were vent happened within a very reef span of time they could legitimately be considered an isolated exception i was over a matter of months wasn't it was it was a local pharmacy i doubt if you patronize that pharmacy and given his circumstances where everybody knew that the pharmacy the dispensary whatever they called it was in the correctional institution is the only place he can get medication to run out four times inside of a six month span is kind of a lot it may be your honor it may be construed that way would point out for the court that in the last time it happened in august they were able to give mr metcalf replace the medication they didn't entirely ignore his need the total number of days he was without medication was twelve days this was addressed by the president of my prison health services and i would but also point out of the court that following the events of two thousand and two that he was in prison until two thousand and five and the problem did not repeat itself based on that of by the court to consider this as an isolated exception  and that these things take some time i think for the prison health services to to straighten out and they did in fact straighten that they took steps to fix the problem and it was fair but also like to address the issue that that justice  november you in august of two thousand and four and then the federal district court for the dish by the hill also found no deliberate indifference manifested by prison health services it is true that that  and collateral estoppel are can are are treated interchange that are treated identical as a matter of fact the elements of both doctrines are word for word the same an idaho state lot we can say about those doctrines and i have had fun with the dockings over the years but in this case i'm not sure what difference it really makes because even assuming that's correct all it does is really carve out the first of the episode but for the reasons we've already discussed i still invite the court to look at the months the episodes from february and the fact into may of two thousand and two those few days as evidence this wasn't back  stated but you're probably right you could consider it as evidence and i think we have to get to that the summary judgment issue and even the district court seems to indicate that because you've got the later periods of time so the question becomes ordered every ninety days they ran out of medication they went to a local pharmacy and bought some deliberate indifference would be if they ran out they knew it was in the local pharmacy and they said you're just going to have to wait  regular source comes along we're not going to the pharmacy because you can that's not what happened what you're correct your honor that's not what happened here however given the seriousness of mr metcalf condition i submit you that it's not enough to simply say well we'll run out and get so he had to take this three times or two thousands a day every day and missing it could jeopardize his kidney and that's that's really undisputed the failure to maintain adequate stocks of this medication  just anger after also prednisolone also in your own that your honor i assume if you is deliberate indifference and that's a standard that must be evaluated in the circumstances of this case of each case actually if this were somebodies knee pain the standard would be different than if it were somebody's kidney the seriousness of the medical condition informs whether or not there was deliberate indifference i want to address one more thing  know the situation did not repeat itself in other words that after these instances you had adequate supplies well that's true but it's also true that he sued them and they had therefore every reason to keep on