will be forsyth and the progeny that have come since then that any type of issue that involves a factual question or genuine issue a factual genuine issue of fact in dispute cannot be the basis for an in a lock a tory appeal before planet now where's the evidence against the doctor well obviously if this court is rated deal with the first prong on the on appeal we certainly do not concede that point we've conceded that point you've already waived it well we haven't correct i mean and that is why we have focused our appeal in order to comply with the jurisdictional limitations on the on the second prong of the qualified immunity analysis what's the difference between here a legal issue as a result this court we would submit has appellate jurisdiction over that and based upon the i'm allison of the second prong we believe that the three medical personnel the three defendants ask the other side i don't believe that there is sufficient evidence that to go against the doctor the doctor was a physician who was on call he was on call statewide on that particular weekend night he did not actually come to the his actions were appropriate and of course we also have expert testimony that supports that that's in the record so i certainly am not conceding and that only reason why this case is in the posture it's in is based upon the way the lower court addressed it and in order to bring a proper and a lock atory appeal before this court we have focused on the legal question the legal question is the analysis under the second prong of qualified immunity analysis and you don't want to  think it can be probably reviewed by for player if this court believes they have jurisdiction to that decide that that is should again what i was trying to really focus is to make certain that out we had jurisdiction before this court in fact there was a motion to court or from this particular court that would indicate to these medical personnel or more specifically objective only reasonable medical personnel in the same position as the appellant's that their conduct proper analysis of the second prong of the qualified immunity analysis and quite frankly in judge curry's order there's absolutely no discussion of the second prong she did adopt the report recommendation of the magistrate judge and the magistrate judge disposed  very general sense here with the general principles that have developed by the supreme court have nothing to do with the very specific factual scenario that is present this particular case and one of the things that has developed and qualified immunity jurisprudence over the years in the united states supreme court has been very specific to the target this and this court has been very specific the target is that you must look at the clearly established right the existence of a clearly established right not in a general sense which is what the magistrate judge did simply by citing astelin farmer but you must look at it with a high degree of particularity and i'm citing that this court's decision in edwards vs city of goldsboro but just in two thousand and eleven one of the most recent supreme court cases dealing with qualified immunity the ass proffers as a kid case the supreme court even caution than actually called out the ninth circuit in particular the court said we have repeatedly told courts in the ninth circuit in particular not to define clearly established law the high degree of generality the court then went on the say the general proposition for example that one reasonable search or seizure violates the fourth amendment is of little help in determining whether the pilot of nature a because what the district court didn't do in this case and what we contend is appropriate to look at the clearly established right in a very specific sense with a high degree of particularities court's term out to look at it  applying the decision from souter versus katz look at it in the specific sense of the specific context of the case this is not a simple mere delay in medical treatment case you've got to factor in a number of different circumstances or what i've been calling our brief extenuating circumstances including the fact that baxter vincent was an inmate with a long history of self injurious behavior is someone who got a look at the history that the department was just dealing with and these particular nurses were just dealing with a back service and just in the previous week he had previously been hospitalized about a week before i after putting a paperclip and jabbing that into his abdomen he was referred to as a moral than was referred to a surgical clinic in made  in the paper clip didn't need to be removed i thought we were doing they were the nurses were dealing with an inmate who was refusing medical care the first thing he did on the evening of march seventh was he lacerated both his left and right arms and then he refused any type of treatment or medical care for that particular injury plus a week before when he had also lacerated himself nursed sharman while she was trying to administer medical care to him and all of this is undisputed in the in the record disciplinary history necessitates whether or not you provide some by medical care or not it's clearly that's not the case what i'm suggesting is you've got to consider the dangerousness of the inmate you've got to consider the nature of the inmate him so i don't recall the nurses justify putting him in the chair and that's some of the things i was just outlining there is also obviously a major consideration that this is a self injurious in that he was a known cutter he was part of the behavior management program which was designed to address carter's that's why he was a broad river because that's where that program was and so part of putting him in a restraint chair was of course it was twofold it was number one to stop his itself injurious behavior and number two in order to provide protection to the medical personnel so they could then administer treatment but the facts of this case are that even though he was actually restrained he had a razor hidden as mouth that he dropped into his lap and that's what he did he used to then cut open his abdomen and proximately ten thirty so of course the medical personnel don't know whether he's got any other weapons whether he still has that razor blade where he can get access to it so what we're suggesting is for objective only reasonable medical personnel which is the way that you look at this on the qualified immunity the second prong in particular you have to look at whether or not it was reasonable to put him in a restraint chair and it would be number one for self protection for him and number two to provide safety for the medical personnel so that they could then treat him and if the court has seen the videotape of this incident you will notice immediately after he is restrained in the chair the nurses are able to administer care to him and i would submit to the court that's on the analysis is you can't just look at this in a generalized plans like a district court put there are dead you have to look at the specific circumstances you have to look at within the factual scenario that's presented this is not a run of instead of sending him to the hospital which is a life threatening medical emergency he testified he acknowledged that it could be he ordered that baxter benson be placed in a non sterile five point correctional restraint chair for eight attention and despite his knowledge instead of sending him to the hospital he ordered that mr benson be placed in this non sterile correctional restraint chair it was a down here's his testimony in a deposition a lot less than his testimony that he was aware of a because he is the one who authorized the other palance the two registered nurses to place mr vinson in a correctional restraint chair they had contacted him for god is that the focal part of your argument that the doctor should be l inmate like mr benson with a history that he had to be placed in a correctional restraint here non medical for eight hours for behavioral reasons is a big part of our case that is our case against  case has not been is not properly before this court the fourth circuit court of appeals the united states court the supreme court has repeatedly ruled that in order for the now of summary judgment based on qualified immunity to be a razor blades he had yes around there was nothing else for him to use he was in a crisis intervention cell where he should not have had access to these items in the first place but that the issue of him being a threat of harm to others is a highly contested fact and the lower court considered all of these facts when they are old and in a light most favorable to the plaintiff that there was a constitutional violation and so yes under the the winfield case of the if this court makes the determination to parcel out the question of law and apply it to the facts as a district court view then there would be jurisdiction but the appellant you're not asking to do that and the  of presented them unless in those unusual circumstances when the allegations clearly contradict with the evidence and in the icac case for example when there was a video that contradicted some of the the plaintiff's testimony but here we have a video that only supports our allegations unless the court has any more questions for me i'm going to ask mr evans to address the remaining issue of qualified i again the pellets in this case have made this an issue of extenuating circumstances which takes this out of case being about a simple delay in medical treatment however the record as presented to the district court makes it clear that this is exactly just that this is a delay in medical treatment case in fact a six hour delay while mr vincent's intestines were spilling out into his lap he was left by himself for two hours in a cell where he still had access to razor blades if one still existed at that point time again that's a contest issue mr business testimony was that he placed the razor blade into his abdominal wall past his intestines and no longer had access to a correctional staff a medical staff that never located the razor blade either in trauma surgery or in cleaning out the  institution again after the two hours being left alone in the cell mr vinson was forcibly placed into a restraint chair for two hours with such force that the ratchet straps are visible in the joint appendix cause additional intestines to spill out into his he was left by himself for two hours removed from the restraint chair an additional two hours and expectedly elapses before he's prone on to the floor of the many band and driven by correctional staff to the hospital wherein he is immediately taken into trauma surgery and spends a combination of two months either in the infirmary and in the hospital having multiple procedures to clean this wound out and to put his internal organs back in his body this is a case that at its heart is a simple the late medical treatment it's involving a life threatening medical condition that all of the appellant's have conceded had they seen it they would acknowledge that this is a life threatening medical condition there is a clear dispute in the record as to whether or not they saw this or saw this evisceration the extenuating circumstances that the appellant would like this court to factor into the analysis to determine whether the right was clearly established are all highly controversial the fact that mr vinson was self interest if only thing only increases the it's the emergency nature of the situation the refusal of medical care or something that is highly controverted if there was any refusal at all the only refusal was when mr vince's par our moons were attempted to be glued back together he said i don't want you to gloom arms back together i'd like to see a doctor in fact be our closest case because that is the case that said the failure of a prison official to act in the face of a serious and life threatening medical condition is a clearly established eighth amendment violation  this treatment electrical was what's your response to that our response to that is that whether or not the facts were up when in that case the law clearly set a mandate that prison officials are required to respond and to act they cannot fail to act in a situation where they know of a life threatening medical condition factually we would contend that the case that would be most on point would be the supreme court's decision and hope ursus health in that case an individual the supreme court was appalled at the open obvious eighth amendment violation where an individual was handcuffed to a hitching post for six hours left without us without a shirt thereby exposing him to the sun for here we have an almost identical time period that adequate medical care and that's the major distinguishing factor between those two situations here we have a formerly licensed surgeon two registered nurses who all testif is a life threatening condition the only thing they don't acknowledge is whether or not they knew about it at the time which again would be a proper argument under the first prong of the qualified immunity analysis but that argument can only be made after we are after we have our jury trial in this matter under the second prong the only issue before this court is whether an inmate who has an active medical emergency is a type of some level of medical care we contend that the record supports absolutely no medical care was provided to mr vinson he instead was allowed to remain for six hours with this external we're going to explore another case that has been cited for the proposition that this is clearly established as the i go first shriek case that was a case in which an interview and may have been doused with pepper spray was provided with no medical care the four circuit this this court in that case defined  applicable right as the right to adequate medical care very broad sense i mean in that case the court said it's clearly established that an individual who is suffering has been exposed to contaminants who are suffering from an emergency has a right under the eighth amendment adequate medical care that's a case that again would be factual the appellants have attempted to distinguish that case arguing that well that's a case involving correctional defendants rather than medical defendants if anything that will make the analysis much more clear because unlike a correctional defendant who may not know the contours of medical emergency each and every one of the opponents in this case are medical professionals that knew the risks associated with having your court establishes that as early as ten seventeen the doctors and the nurses knew of about evisceration if not an actively exposing test in the nurses according to the district court knew that as early as ten seventeen and the doctor at minimum knew perforated abdomen at least at most a eviscerated bow instead of ordering medical treatment or providing medical care dr was according to the joint appendix ordered mr was when the nurses total and that's when he ordered that they must eventually be transported to the hospital the doctor acknowledged that he did know about some level of about injury as early as the first phone call at ten seventeen he may have known about case in the deliberate indifference jurisprudence because it clarified the definition of liberal indifference but it was not a medical case it was a duty to protect case it was a transsexual who was placed in the general population of the prison and the issue of whether or not prison officials were deliberately indifferent to the safety of that individual in may because of its sexual orientation of the fact that the person was a transsexual what he say about the whole case well the whole case again it's not a medical  and what we have here is obviously medical issues the only parties that are still in this case are the medical personnel and let me make one other point about the fact that there's no controlling authority the only other though that particular decision didn't come down from this court until august sixth two thousand and eight the events that already occurred in this particular case the events here were march seventh and eighth of that same year two thousand and eight but i don't know of any authority that would suggest that a appellant decision host the events could possibly be considered as putting out individuals on notice that their conduct was in violation of constitutional rights so the simple fact that the ica case was of the side until several months after these events i think shows quite clearly that these particular defendants could not be held responsible for knowing of the existence of that particular decision what is what is telling them what is clear is that there is no controlling authority on this particular issue you think there has to be no and i would agree that in very very farfetched circumstances there does not have to be in fact the case i cited earlier that from the supreme court in two thousand and eleven that offers a case the spring court actually clarified that point and they said i think this is very important they said we do not require a case directly on point but existing precedent must a statutory or constitutional question but yond debate that's the first time they use that language beyond the date and i would suggest if you apply that language from from the ashcroft kid case that this calmed the the unconstitutionality as alleged but the actions of these medical personnel was not beyond debate under the specific circumstances so when you look at the clearly establish right and determin language i do not believe and i've respectfully submit this court that there is not controlling authority that would have put an objective only reasonable medical personnel either nurse or doctor in the position of these two nurses or doctor wa the case and i also submit that if you look at the testimony of dr know when he was the point of medical expert he describes the delay is three hours and during that three hour period it's not to the point of didn't get any type of medical care malpractise claim on the court while aware that deliberate indifference is a very high standard and so if there's a disagreement as to the level of medical care or believe that different medical care or a higher degree of medical care was required in the circumstances that is a medical malpractise client that is not pertinent to a cruel and unusual punishment on and so again our position is there needs to be controlling authority in order to satisfy the second prong from either this court or from the supreme court that would put an objective only reasonable medical person such as these nurses and this doctor on notice that their actions were violating mr benson's constitutional rights i could not find any such authority i don't believe there's any such authority has been