deal of pain they say to the point of both homicidal and suicidal because they took away my your mattress in my knee brace in the pillow i used to put between my knees when i sleep so that's what he said in so let's turn to listen to me and coco defense counsel and we basically equity each other in explaining what the prison physicians viewpoint is earl was with regard  where mr bones concerns i mean from the top to the bottom you know he's not being forgotten i left in the cell the right of way and being forgotten he is being seen by a doctor once a week i mean nurses are seeing him twice a day to give him his medications i mean even the ch medical officer for the department of corrections has reviewed his treatment plan and what they see is that it what the physicians did for him was they said this is what you need to do mr bill if you need to you need to exercise you need to lose weight take medication and he did during that period of time he lost about nine pounds and then they took these special accommodations for these medical pliant as they took him away and he that's when he you know he was sending letters to everybody to the governor to the attorney general to the court as family was doing then his mother and father's wife and that's when judge karen i got involved here the district judge basically said and this guy's being a total get by playing you can buy his silence and he would just give him with his an air mattress the knee brace which he's had for a long time hadn't cause any problems no burden to you it might get some peace for you and for me suicide you know the one thing we don't do is do nothing he says feral you know talking to me says just give him the skinnier measures which you know given the are measures and so you know it's and i agree it's not a burden you know it's not a huge burden on the state to give him the mistress and that she just took up a collection go to craigslist and i took it and the funny thing is that i mean obviously the state has every right to be here no question about it but i mean what is at stake here judge district judge in really judge turn oh he's very nice judge and he's very concerned judge about these prisoners and he's trying to help this guy out and you know i've got a client who's telling me hey we've got our own doctor we don't need a federal judge second guessing our judge our doctors and you know and this is a very small matter it's an insignificant matter understand that but it's it's his larger implications we have you know forty five thousand prisoners  you know we could certainly not the obama on air mattresses i'm not suggesting we're going to have forty thousand requests for air mattresses but well certainly though i mean the group of prisoners that have mr boone's profile of these car wrecks etc gets you down to a pretty small number and i think he actually shot himself during his last crime i think that's where some of these injuries it came from things that matter no it doesn't matter at all it's just a little little and history of this guy and i agree your honor that floodgates you know i hear that from my client all the time fight this fight that because the floodgates we're going to get inundated with these claims are inundated with lawsuits if we pay this guy five dollars we're going to get a million lawsuits and i don't necessarily buy that argument but i but i do recognize that you know the court of standards the six circuit standards about issue employment or injunctions and i know these courts should be reluctant to  second guess our doctors and you know when the doctor say really this is a should be harmful to him to give him the mattress to let him keep the mattress let him keep the knee brace because it's going to retard his rehabilitation as i read the record the the argument that it would be affirmatively harmful really only applied to the knee brace on the atrophying of the muscles the air mattress that was not a sort of harm to allow him to continue you're absolutely correct  limitation that there was no time indication as to how long he should have the bridge or the mattress but typically the standard for the m t o see the issue of these for a specific you know a post a post surgical of thing or they'll do it if they have all servers essentially but is that record tell us how much of the person's position in opposition to the continued use of the air mattress was based on our standard policy if you don't get one no  don't how much of it was based on we have a fairly old prescription from a doctor who can be called prescription and our own people have now looked at it independently and we don't think there's a medical that's the reason that's exactly the a comfort issue but you know his claim that i'm going to you know i'm suicidal or homicidal i mean that argument we used to justify any moment let me ask you this question i mean let's say a district judge is presented with a case injunction request where you have an inmate with some condition the inmate says he needs a certain accommodation the prison is listen we're giving this guy tons of attention tons of care we disagree that that's good for him or that he needs that and we have a solid basis for that ok so we have that but let's say the district court thinks the inmate is credible when he says i'm going to kill myself if i don't get my knee brace what should the judge  mental health treatment as opposed to you don't ordering us to provide him with these these medical places that he doesn't need in that are probably not good for i don't know i mean yes i mean you know i mean  i read the record we have the suicide all in fact he's not even taken tylenol even though he says this pain is driving him to distraction correct and you know he says i'd rather have narcotics you know i mean that's the kind of thing that we have to deal with all the for primary junction have not been met there's not a five and so we buy that part of your argument there sure stiction resolved the case do you have any suggestions as to how to get this resolved because it doesn't seem like a great use of a lot of people's time to my question by saying just give me what i want you have to what he would do what's going to happen and remain and oh we're going to that's what i mean you know we have our co defendants as well who represent the doctors i represent the nurses in the other medical people that the indio see employ we're going to take his deposition refined out with you know we're going to look at his earlier medical history we're going to get those records will take his deficit it'll be a typical case you know the it's the so i guess the point is will you follow the evidence where it goes and then we'll file a motion  good morning i may please the court jeffrey we'd assign pro bono counsel for richard brune judge sautner to address a comment that you made a moment ago i agreed that  having previously worked at an appellate court a state level of public court i think that this is the instant appeal is a tremendous waste judicial resources as i stated in my brief it first of all as i mention in the brief i think that there is a very good question as to whether this and i think a little more background procedurally i was only assigned to represent this prisoner by judge tara now after these events took place but there's nala new pending that relief and also for retaliation regarding the ensign injunction we have evidence that there's been a refusal to care for the prisoner because there  being alleged both there's also a pending and as i stated in the brief it did not take place within the twenty eight days you know under the federal rules for a motion for reconsideration but i wasn't on the case at that point it was impossible and i think it's important to but how would the weight rule fifty nine motion divest this court of jurisdiction while the the question in my mind is not so much whether this court is divest jurisdiction it's whether or not it's appropriate for an appellate court to spend its time and it's judicial review i don't know where this side of the case is that are here you know this one's here and you know the first part of the fourth part injunction test is likelihood of success your client has an eighth amendment claim it's a deliberate indifference standard right i mean so far as i can tell the state is hardly indifferent i mean you know they have a nurse seeing him twice a day the chief physician has seen him it seems like they're devoting an exceptional amount of attention to him rather than just sort of disregarding and just looking at that factor tell me why that does not strongly favor your opponent here when the standard is liberal different well the reason that i would say that that doesn't favor my opponent here is this not only is this is a situation where  i wasn't being asked to supply these medical devices the prisoner brought these medical devices himself in the record books below this is not as is alleged in opposing case you don't not you lavished all this medical attention on him there is a dispute first of all regarding no do you dispute that there ever a nurse that season twice a day that he's seen the chief physicians that there's been a quite substantial amount of medical attention given to is his condition is that that is in your view it is actually in dispute and in fact in the brief on appeal at one point i state other than reading in the report of the chief physician you know who had opposing counsel mandarins had reviewed the treatment plan he had never actually seen  boone and there's a difference the situation here in my mind is this is a judge sitting in accurately a district court judge sitting in equity in this situation where you have the governmental entity admitting this is no burden on us in fact we don't even hear you're getting way later stat i'm focused on the first prong and it's it's the burden of the party who wants the junction right to make the demonstration so i mean where in the i mean i understand you know he's pro her and come in but i mean where is the showing of period i mean there's nothing i actually don't even want to know it could i ask a question though about the record that we do have yes did the district judge have before him the prison internal records of the medical care that the prisoner had received yes he had voluminous right so he had a record  clearly established that there had been a lot of care given over an extended period on a frequent basis yes there's a reason for the luminous and that's exactly and why isn't that combined with even though there was a dispute as to whether it was enough that's the classic dividing line between what courts say sorry you're just disagreeing over preferred treatment we don't consider that a constitutional claim you do with that what i was attempting and again i do apologize but it was not discovered and briefed at this level however there is there are six circuit precedent to the fact that when you're dealing with an eighth amendment and deliberate indifference case that the the legal aliments of that claim that when you look to that deliberate indifference there are the two prongs you know in that analysis one of them is an intent problem and when you're looking at injunctive relief and it's an ongoing situation that the knowledge of the situation portion of the pronk goes away because obviously there's knowledge of the situation we're in federal court discussing it so it's not that you don't know that he doesn't have the air mattress it's not that you don't know that he's in pain and i think i don't understand what that does for you i mean state of mind can always be a relevant fact but you still have to have some evidence of deliberate indifference and i'm really curious on the air mattress so i mean i can understand an air mattress for a little while after a hip operation but i've had two hips done i never occurred to me you get an air mattress for life i'm going to talk to my wife when i get home i had no idea i had it i can see it for a while that makes perfect sense i don't see it forever what's the medical explanation for forever in the record below and that there is one thing that i wanted to bring up is that actually dr cart who is an assistant professor in the apartment in orthopedic surgery joint reconstruction at the university of michigan so not just a surgeon it does he say that the unique aspect of my client's situation is that there was not just one incident with a hip replacement is that he is overweight as opposing counsel stated you know in this trying to work on that but he's had a total hip replacement and subsequently was in another accident where his where the tavia was removed entirely from the socket and then it had to be reconstructed a second time and single haven't gotten better since two thousand and eight they say basically but there's no new evidence about the air mattress after the second problem i realize i get the point that that supports it but i'm just saying there's no more medical evidence after that second no and really my argument in terms of that is as as i admit in the  no there's nothing in the written opinion addressing the four factors but another issue of justice the ability that i'd like to just bring to the court's attention is the issue of were these arguments ostensibly these three trial attorneys are aware that there is a four factor test for granting preliminary injunctions they know that that test exists etc they never made any argument whatsoever in the core below instead they decide within a matter of days of judge tarn i was decision to raise an interlocutory appeal and have this court decide it and that's really the crux of my argument on appeal is first of all the this falls under a very deferential standard judge tarnow did have evidence in front of him it's not true that it was just the on  statements of the prisoner he had in front of him evidence that an x orthopedic surgeon that teaches at the university of michigan had said that this person should sleep on an air mattress permanently that he brought it with him to prison and that it was taken away by a nurse essentially out of avarice and the balance of the equities this is a judge sitting in equity yes it is a and yes there are precedents in this circuit saying that you know usually a finding will you know that there's no such chance of success on the merits will be fatal however in the record below this is a case where the magistrate judge the recommend recommendation report was to dismiss this case judge tar now rodin opinion point you know prior to discovery and prior to and that's the thing another aspect of this in my mind is as the court as members of the panel have stated this is a situation where judge particularly in referencing the case he did reference he showed in his mind there were two crucial elements of the four prong it cost them doc nothing to give this air mattress and on the flip side we have been in pro per individual who he was about to assign counsel to who might kill himself in the interim and  he made a determination that based on the four factors that and of course that is subject to abuse of discretion is his balancing of the factors and i think in this case i agree judge sutton that you know for the price of an air mattress is that worth the potential of a man taking his own life and that's really to meet the position judge t