morning your honor smith please the court i'm daniel stooge and ski with simpson bartlett counsel for plaintiffs initially charles and carol small this case is about a significant well established constitutional right people who are confined by the government against their will have the constitutional right be free from government officials deliberate indifference to their serious medical needs under longstanding supreme court precedent such deliberate in different states a claim under section one nine hundred eighty three for violation of plaintiff's  process rights the district court heard in treating this case is unusual because of the specific type of medical needs and the specific type of medical care that's at issue discharge planning for mental health conditions the court below imposed the wrong test and misapprehension the nature of plaintiff's claims as do the defendants now withstanding these errors the district court still thought that this was a close question as to whether plaintiffs had stated a claim and ultimately granted defendants motions for judgment on the free in the world around us correct the district court determined that there was a special relationship that extended for some period of time after release we don't think that this court needs to reach that decision because what we allege was a deprivation that happened prior to release while the plaintiffs were in custody but when mr charles shows up the next day after he's been released and if you can have medication what role does that was in your complaint if the argument is the breach had already happened basically by the time he is released with any medication or plan that is our event we do have the alternative argument that there was a duty that extended beyond the period of  to planning for release our complaint is focused on the prerelease on the prerelease care there is the allegation that he went back the next day and asked at that time for an interim supply of medication and was denied that could speak to whether there was a breach of a post release judy of care if if that exists so it doesn't need to for the to mandate reversal here but that also speak to that issue also speaks  trolls goes back is that we don't give any medication to people who are former prisoners that's a different and that's only a that is a custom but that's only a problem if they're not allowed to have that policy because they are reaching some duty to former prisoners if they use them the more way that's certainly not dispositive of the issue of whether there is a customer practice of denying the prerelease care we think it at least at the pleading stage could give certain of deliberate indifference because the way that these people reacted when they learned that mr charles had not received discharge planning and had not received intra bed occasion certainly gives rise to plausible inference that this was not acts this was not just an oversight or an stage what inferences can you draw from those acts you can draw the inference that the failure is that happens for the twelve months that mr charles was in custody and for the seven months that miss marr the smallest in custody the failure to conduct any form of discharge planning or take any steps to mitigate the risk that would face mr charles and a small when they were released and when does the when does the breach occur does the breach occur when the person is released or did the breach occur when somebody  operational was what's actually supposed to happen under your theory of the case so the suppose they had destroyed when that said well when he goes home he should get a certain supply of medication and you should get a referral and  then i think unexpectedly accepts defendants versions of the facts here which is not what should have been done below and the motion to dismiss stage what is your complaint say that would suggest that it was expected so that they at least knew that there was a chance that after appearing before an immigration court that mr charles would be released so what they could have done if they knew he had a discharge plan which required certain things to be given to him they could have handed that information they could have handed the interim supply of medications the ice officer for them to bring that's a very straight every time you go to court there's a possibility you'll be destroyed and so there should be a package given to somebody to make available to him in are questions it could be for example that it was totally unexpected in the mr trolls would not have a claim but that would be a fact question that would be resolved at some later point that would be a fact question and i don't know if we'd agree with the consequences anything unworkable about what we're asking here i says own policies require discharge planning so presumably these provide the same thing for at least four detainees for criminal president exactly right which is further undermines the argument that the where do we find that policy in the record and what is there that says that this is a policy that applause only two people detained pending criminal charges and two customers so we've alleged  at the jail and again at the motion for a judgment on the pleading stage those allegations of the complaint are enough that the county actually put in an affidavit in support of their motion the actual policy that they claim  say the policy applies to everyone both civil detainees as well as criminal prisoners that again is a factual issue years yes that's exactly right that that's true just because you're saying they have an actual policy of disregarding the written policy in the case of detainee's given that you have some examples were those people did not get treatment that's exactly right and the existence of the ice policy at the purported existence of the county your honour's correct this this is not in the record mr charles did file an action in state court against the county as your honor may know new york state imposes a ninety day time limit on filing a notice of claim and as whether the duty to provide medical care to a detainee has a fourth amendment ends now the district court reached its decision but i believe the easier answer and the one that will resolve this case entirely is that the supreme court's decision and the cheney and this court's prior decisions in jacob's magic can and lombardy all state that there has to be some linchpin of state of custody here these people are in custody they're in custody right this thrown out in custody and they're getting medical treatment right now if you're getting medical so there is there is that relationship and their argument is that this discharge planning is part of the care that they are supposed to get when they're in custody so why can't we just talk about that rather than about a phantom argument that we've all respect to mr he seems to go back and forth on whether it's in the complaint and all of the post release duties first of all say that the complaint clearly alleges a deprivation of post release care this argument about the in custody care was created in response to my motion and that's an argument we have in our brief but to discuss that discharge planning has nothing really to do with in custody care both the plaintiffs agree they received adequate mental health treatment while in cust so let's put the mental issue aside suppose someone stabbed by a fellow prisoner and the doctors and the facility know that he's going to be released tomorrow so they the perfectly good job of doing that and then they put him on a bus and nobody tells them you have to change the dressing tomorrow nobody tells them here's the number of a doctor to call if this seems to be starting to get infected gives him any pain medication that he would normally be receiving you're saying he got adequate care because they dressed in the question is not the question of this adequacy of care the standard of care those are tort questions that's a negligence question a medical malpractise no it's only it's a constitutional question if they're deliberately indifferent and if they say hey we know that we do that if we were operating under ordinary malpractise rules and so on but you're just a prisoner and you're not going to be our prisoner tomorrow so we don't care suppose they said that and that's why they provided what was in effect malpractise care that would state a constitutional claim would it not i do not agree that it would only judge lynch is hypothetical you're saying if the person was stabbed in they had the dress to be released in the next day and he bleeds out because they didn't provide him adequate information about dress and all of which happened before he left there would not be a viable constitutional claim this the the reason is because the the result and the shany was also unjust to that child the result in matter can was unjust perhaps the result in them bardi was unjust but it's because those are cases in which the argument is the state has an obligation to protect people out on the street from what other people do to them this is a question of what constitutes the adequate care that a prisoner is entitle to it's as simple as that now maybe you've got a great argument and i think there are arguments to say this is not really part of the kind of care that they're entitled to but their point of argument is this kind of discharge planning is what you know when i go to the emergency room with some kind of problem what the doctor does is not just patch it up for the moment the doc she says to me when you go out on the street when you go home you have to do the following things for aftercare if i go to the dentist they tell me that that's always part of medical treatment isn't it isn't it's part of the standard of care but in this case this is a constant if you deliberately disregard the standard of care in a situation where there's a serious risk of terrible health consequences is that not the very definition of deliberate and different here the injury and we have to focus on the complaint that's before this court there's a motion to dismiss under twomey there have to be plausible facts so here the injury that these individuals suffered was well miss small didn't suffer any injury but let's talk about mr charles e two weeks later he compensated even if the care the injury was caused by the lack of medication not given to him post release that's post release medical care so we can have but we could have drafted and handed him a piece of paper here's your medications here's what you need to do but at the same time mr smart mr mr charles had a had an ongoing relationship with a provider was could have obtained his own care and that's what the cases say is that when we're talking about the fourteenth amendment substantive due process standard regardless of what else might be maybe the maybe best practice is maybe whatever the fourteenth amendment only provides a duty of care when that person is in our custody so for when the plaintiffs are seeking medication post release not part of the duty of care when you know that somebody is going to be released this may not be the facts when it plays out and when we get all the facts about what actually happened in terms of the release of mr charles but let's assume for the moment for the hypothesis that they know that someone is going to be released the next day and they know that he needs medication every day to solve to deal with his health problems they're not required to give him medication for the next day because he theoretically could find a health care provider in the day if that's the first thing he does and then you have to tell him that by the way you need tomorrow to go get a prescription and fill it and get this medication they don't have to do that because tomorrow is not their concern that's your position the position is that the that this that put that this chart planning only implicates post release care and i understand that i don't disagree that the result may seem harsh but that is how the fourteenth amendment works who said that who said this is not a question of if not first impression at lea a kind of interesting twist where does it say anywhere that there is no duty that to comply with what ordinary medical standards are in order to avoid serious health risks if that duty involves giving anybody any advice any key any thought for what's going to happen to him the day he walks out the door that's a proposition that the supreme court hasn't or sed tell me where well i will say it is it is an issue first impression and that's that's why we're here is that every case that this court has decided has said there has to be one at the time that the duty arises with a duty to mr charles and a small arises the injury that they're trying to ameliorate is this lack of medication when they get released so that duty arises at a time when they are no longer under a custody ever most other than the one district court decision that i'm aware of every district court in the second circuit that has held that has dealt with issue has held that there is no duty once these people leave care right wrong or indifferent that is how it works only custody once they leave custody and we have the mcgee case the nasty case the these are very similar situations where someone is released without a treatment plan i'm not saying it's right but those were not constitutional violations perhaps they have a tornado you are saying it's right you're saying it's right that it's not a constitutional violation that we should follow those disparate court decisions that we need to decide whether they are right and you are here to argue that they are i believe that if if we look just at the bedrock principles here of the shane and these other cases that this court has decided retain lee is that even when the it's not about the the ends justifying the means it's that here that the fourteenth amendment draws a line is that the state has to have some control over the person at the time that the need arises and to greatest is just to be clear on that point so you would you're saying is that even though the injury that there was supposed to be treating happen at the time that they were in custody once they leave custody regardless of whether or not the injury should have been treated were they should have had direction on how we should be treated after they leave custody once they're out you're done so if the person in judgment is example if the person bleeds out because they didn't know they need to do x y and z which the doctor failed to tell them while they're really custody it doesn't really matter because now they're out of custody correct that is the way it's unfortunately it's the way it has to work because they to where does the line then and how long after does the jail still become a medical supply it's pretty simple when you're putting him out the door onto the street if he can't walk you have to give him correction is if he needs to change the dressing when he gets the soon as he gets home you have to tell him he has to change the dressing as soon as he gets home if he needs medication that night or the next day you need to give him some medication or at a minimum you need to tell him that he needs to get the medication and you need to maybe give him a prescription so they can get it filled that's not so hard indeed that's what ice requires you contractually to do that's what you do according to your own policy your policy says you do that and in writing it says you do it for mr charles so i'm not i'm not saying  i understand some theoretical arguments here but i don't understand the notion of where will it all stop we've got we've got programs in place apparently through this it's different if you have the government can do things voluntarily and it does not mean this is i mean this is what the shading was about is that the state may very well create a system where this is allowed but in that case that child you know was injured extremely at the hands of the father and the state could have acted but the supreme court did not require the state to act that is the key difference here it's the requirement to act whether we do voluntarily act or not that's a crime requirement to act and i think i have heard you say i mean you've got swallowed up in the course of another question being asked that  correct based on every decision i've i've read all the ones i could find and that's the parameters that this court has set up for the substitute process clause and it's so far so far and i hope that remains to be the case in line with the prior precedent but at a minimum i think that especially with the unsettled nature of the question miss elizondo certainly entitled to qualified immunity and however the question is ultimately resolved on whether the duty custody and that's what the supreme court's analysis turned on or if nothing else that's the key distinction between this case and the shiny mr charles and miss small could not have gone somewhere else to get discharge planning while they were confined at the detention center that's the crux of why the supreme court requires people in custody to be provided medical care by the jail or prison where their health they weren't allowed to walk out the door and go to another psychiatrist and say i might be released soon help me get ready for that judgment noted that maybe there might be an argument that this was not care that the the plaintiffs are entitled to and i think at least as pled at the motion to dismiss stage we've stated a claim that an abrupt termination of care poses a severe risk of harm to people with the mental conditions that plaintiffs  medications should require it should include an interim supply of medication where appropriate but right now we don't need to define what that ought to include is really the question of what's necessary for a particular individual at the time that they're released and it may obvious what it was made very and i'm not sure we need to specifically prescribe what that needs to be correct that's exactly right especially given the procedural posture here and given the allegations that they did nothing else was going to face causation questions down the road as to assuming they should have given medication for how long you know what would be an appropriate amount you need medical testimony that you know maybe they don't need to give something for two days because you could go without for two days and not suffer a problem just making this up of course that would be the subject of the medical testimony and someone would have to decide maybe a jury maybe a judge on summary judgment whether you've made an adequate case that the failure to provide what should have been provided whatever that is is causative of the problems because if the medical experts say oh you should give him at least a three day supply of medication  and he doesn't be compensated for two weeks and he could have and his family could have gotten him other treatment in the interim you have issues about when all of this is stuff that's down the road that's exactly right and  miss thank you thank you both helpful arguments the final case on for our consideration today is ross versus dempsey uniform and linen supply it's on submission please adjourned court