in this case st of all this case is not just out or they're wearing the black box is per se on constitutional or whether mr stewart suffered occasional or minor discomfort all wearing it this case is instead about the excruciating pain that mr stewart suffered because of his painful preexisting conditions when he was forced to wear the black box he before you even begin forgive me but do you agree t he can be reincorporated for things some of which like losing his help host site aren't in his control if he is re incarcerated then he'll be subjected to wearing the black box again because of the number of serious health conditions that he has and this medical treatment he has to suffer or has to receive for those conditions in so we don't believe that the injunctive relief is unnecessary because he could there's a reasonable chance that he would still be subjected to wearing a black box if he's for incarcerated least twenty three occasions just to receive medical treatment for the serious medical conditions that he suffers but mr stewart presented more more than just evidence of the extreme pain that he suffered while wearing the black box before the district court at st he offered evidence of his objectively serious and painful preexisting shoulder wrist and elbow conditions nd he presented testimony from a doctor that these conditions can cause pain while wearing the black box and verdict he presented evidence that the defendants knew he reported extreme pain from wearing the black box over and over and over again despite treatment excessive pain during and after the arab location i believe this claim your honor is during and after the black box rather than any type of additional permanent injury as a result of wearing the black but that the defendants never altered course from forcing him to wear the black box on his medical records is evidence from which a reasonable jury could it's important to understand how the black box works it is they exactly what it looks like i have one here is sound like a black box in inmate is placed in this cover is the chain that connects the handcuffs they're placed in a twisted wrist position with a palm up and the palm down with the black box in between and it's that his vision that they are repeatedly are that they're placed in for the entirety of a medical grade which for mr stewart lasted for hours at a time and it was that condition that position that he was in that caused him the extreme pain because of his preexisting shoulder wrist and elbow conditions  mr stewart presented evidence from which a reasonable jury could find that he faced a serious risk of harm from wearing the black box as i mentioned he testified that he was in extreme pain while he was wearing the black box and even though cases like roe vs gibson which we said in our brief illustrate that that testimony is is really all that's necessary to create a question of fact mr stewart as i mentioned present more you presented evidence of his previous serious preexisting elbow shoulder and rest conditions along with the testimony of a doctor that those conditions could cause pain while he was wearing it from that evidence and your reasonable jury could find that there was a serious risk of harm that he faced from wearing the black box for hours at a time when he received other medical treatment he's going to agree that your case is made more difficult by the fact this years medical your honor it is true that in this case the court and the jury if the court were to allow it to proceed to a jury would have to weigh the competing interests of a stay of his th amendment rights from the safety issue but in this case there are other reasonable alternatives that were in fact realized that would protect the safety of the public that wouldn't have caused mr stewart's the extreme pain that he stuffed right from wearing a black box also there is no evidence in the record that mr stewart himself or his and a significant safety risk but those interests are a trust that we think the jury should have been or should be entitled to resolve and because there is a question of fact as to whether mr stewart's th amendment rights were violated despite the security concerns that are arise from the black box turning to dr ms robi and because they see my time is running short in the claim against  him mr stewart presented evidence from which a reasonable jury could find the doctor miss robey and was deliberately indifferent to the risk of harm that he faced from wearing the black box dr miss robey and knew of his preexisting shoulder conditions he knew that he was experiencing extreme pain from wearing the black box and even though he provided medical treatment to mr stewart the summer of two thousand and nine he knew that medical treatment wasn't working mr stewart was continuing to complain of extreme pain while wearing the black box dr ms rowe refusal to change course of treatment even though he knew the treatment that he was providing wasn't working in cases like barry versus peter peter and that that is sufficient evidence to create a question of factual our reasonable jury to find that he was deliberately indifferent mr stewart's th amendment rights i'll address the claims against wexford next mr stewart believes that he presented a a evidence from which a reasonable jury could find that wexford was deliberately indifference to his serious risk of harm i mean that was in two different ways by evidence of a widespread custom and practice and b a policy of inaction mr stewart presented evidence that multiple wexford providers knew of mr stewart subjectively serious medical conditions and the extreme pain he suffered from wearing the black box he also presented evidence that they knew that he was that he reported continuing to suffer from that extreme pain and yet what's for the providers to continue to deny mr stewart a blackbox exemption over eight years multiple providers on at least twenty three occasions and this is a pattern of repeated behavior change that shows or it can be evidence of a defacto policy to deny exemptions that works for had to have known about sufficient to create a question of fact and allow reason this review if i could interject here we don't have any expert testimony in this case to the effect that denying a black box exemption violates the standard of care that's correct  correct right and that would be necessary to prove a medical negligence case and of course the standard is much higher for anything then the claim so if we don't have any  evidence upon which a jury could clue that the denial of an exemption in your client's circumstances but only it's the standard of care for medical negligence how can this be  adequate as a deliberate difference your honor while we don't have expert evidence that that mis doctor has roby and or any of the other riders violated the standard of care we don't believe that's necessary and what we have is a pattern of  refusing to change course of treatment even though medical provider knows that treatment isn't working and in cases like barry where there was no expert testimony that were that refusal to change course in certain circumstances can be enough and we suggest and submit to the court that in this case that is enough here to create a question of facts from which a reasonable jury could find that the defendants were deliberately indifferent to mr stewart  i jump just a few minutes to address my mr serious claims against a defendant steal because the it of individual capacity claims we think viewing the evidence in the light most favorable to mr stewart there is evidence that over the course of six months mr steele knew from a comment from a conversation he had with mr stewart four letters and a grievance that mr stewart's claims of pain weren't being addressed and because of that knowledge prohibits deliberate indifference to medical needs of prisoners because the pain and suffering associated with the denial of medical care serves no pain no logical purpose this case presents a slightly different issue everyone in this case agrees that the black box does serve a penal logical purpose and because of the important security purpose that the black act and exemption can only be provided in the limited circumstance of medical necessity this case is not like to cation those facts are in a posit here this case does not involve medical purely medical treatment decisions wexford and its employees have consistently testified in this case that the determination of whether a black box exemption  can be granted or is medically necessary is made on a case by case basis in the clinical judgment of the provider at the time of his or her evaluation and the record demonstrates this procedure was followed with respect to mr stewart by n and all of the other wexford providers the record does not support plaintiff's contention that this judgment the judgment made by these providers was criminally reckless st as the court  pointed out mr stewart has presented no medical evidence to support his contention that the black box aggravates the shoulder conditions and carpal tunnel syndrome instead the evidence in the case as explained by his multiple medical providers is that while wearing a black box an needs shoulders are maintained in a neutral natural downward position in fact the evidence is that mr stewart's shoulders would be maintained in essentially the same position no matter what kind of restraints he inability to change positions over an age or eleven hour day or whatever amount of time that eventually causes the stiffness and the pain they can be moved around a bit however mr stewart testified that the types of maneuvers and positions that aggravate his shoulder condition are reaching overhead or heavy lifting and those types of maneuvers are positional changes are prohibited by the black box he would not be engaging know in those kinds of matter if the evidence is also that with respect to mr stewart's carpal tunnel syndrome the wrists are flexed or extended in a manner that puts pressure on the median nerve which is aggravate these conditions and the record does not support and friend but the expert providers including dr ms rubin consciously disregarded mr stewart's complaints in fact the testimony in this case is that it different points in time stewart's providers including dr chamberlain dr weil dr funk they all put on the black box in order to better assess how the shoulders elbows wrists are going to change how it affects the joints and the muscles and they determined in their judgment that the black box would not exacerbate stewart's medical condition but how long did they stay in there i mean how long did they stay with that they were for a period of time certainly not eight hours however it's undisputed that regardless of that mr stewart would necessarily be required to wear some kind of restraints while on a medical and the record also demonstrates that mr stewart each time he requested a black box exception he was a value would be evaluated by a medical provider he was pushed prescribe pain medication and his complaints were considered in the context of his condition in clinical exam the fact that different providers came to different conclusions about his condition at different points in time is evidence of their exercise of clinical judgment not deliberate indifference in order to succeed on his mon el claim stewart has to point to evidence of a practiced of denying black box exemptions so widespread and well settled it constitutes custom and usage with the force of law stuart has pointed to only his own experience of having his requests for a black box exemption tonight on certain occasions as evidence of what's for its widespread policy however he conveniently ignores the multiple occasions where webster providers did grant him a black execution based on their clinical judgment and his exam on that date stewart can't cherry pick the evidence to contend each time it's request was denied it's evidence of some widespread writing the record shows that there wasn't a special in service conducted by the idea of the at stateville correctional facility which is a different correctional facility than the one where stewart was housed and at that point in time the emphasis was made on limiting exemptions to medical necessity i believe that the explanation given by the multiple providers is that the best way to determine whether a condition is medically necessary is through the clinical judgment of a provider the testimony in this case is that there is a wide range of conditions that may or may not require a black box at different points in time and it is difficult to imagine how any policy at bottom would not require an examination by a we can't hear you  a former assistant warden at jackson correctional center i'd like to address st the individual capacity claim against steele and then the official capacity claim in the individual capacity claim stewart claims that still failed to intervene when stewart complained that the prison medical director dr chamberlain denied him a black box exemption as the district court properly granted summary judgment on this claim on two grounds the district court concluded that a jury cannot reasonably find an underlying constitutional deprivation by dr chamberlain nor that still turns a blind eye to any such deprivation regarding that st ground the lack of an underlying deprivation there's no real dispute that a jury would have to find on the record that dr chamberlain exercised his professional medical judgment when he initially denied stuart an exemption and in his reply brief stewart rightly concedes that a failure to intervene claim out requires proof of an underlying deprivation of the plaintiff's rights but he seems to argue that such proof is unnecessary here to the extent that steele himself should have granted him a black box exemption but the district court found in stuart also concedes in his opening brief that a black box exemption could be provided only by a medical professional authority to direct medical staff to grant an exemption and the policy that a lay person may not grant a black box exemption makes sense because whether a particular medical condition warrants and exemption would not be obvious to a lay person and indeed as was mentioned in this case over several years different medical professionals came to different conclusions as to whether stewart's medical condition at that particular time warranted an exemption and contrary to stewart's argument  possible for future in any event sealed or not forfeit the ground for some judgment do you think that  my i understand from the department and explained to me that if you were to lose his host site which is highly unlikely he is placed with a cousin and his agent has checked on him multiple times since he was released two weeks ago and that relationship is fine and if you were to lose his h placed in a different host site and the department would try their best to exhaust any possible other place you could go other than prison such as any halfway house and it would be available so it's highly speculative that he would be really imprisoned either during his are trying to tension or his mandatory supervised release so yes the claim is moot if even if it were in the mood the district or properly granted summary judgment on the merits there is no evidence from a medical professional that a met his medical condition will always preclude the use of a black box and that a permanent exemption is therefore necessary and also if he were to be re imprisoned in the future he could record request an exemption and a medical professional would decide in their medical judgment whether an simply go without it i'm sorry i cannot hear you oh i'm sorry my understanding is that the alternative that stuart had requested was the use of a leather belt that would let his handcuffs would be connected to but i'm not certain that the record reflects exactly what the alternative would be in this case but it could be that my opponent could clarify that thank you i'm back training actually individual capacity claim against mr steele even had stewart shown a constitutional deprivation by d chamberlain into nine him an exemption there's no evidence that steel had sufficient notice of any such underlined a provision such that he was required to intervene none of the evidence that reliant on a summer in judgment such as the conversation the letters or the grievance were put still on notice of an obviously serious medical needs such that even a lay person would need to intervene firstly the non emergency grievance that he cited the district court found that that grievance processed through the prison's normal grievance process and stewart does not dispute this finding which makes sense because he introduced that evidence and summary judgment was represented by counsel to the extent that he suggests in his reply brief that steele should have also gone outside of the normal grievance process to respond to that grievance there's he never made any such argument and there was no evidence that the normal grievance process wasn't working properly if this court were to require prison officials to act in that sort of way that would undermine prison staff ability to manage and make concerns efficiently through an efficient division of labor he next relies on a brief seconds long conversation and which he asks still about him not receiving a black box exemption but that conversation lacked enforce its local rules and regardless even if the court should have looked at looked at those letters which were not in the record store do not show that the what the letters had suggested that the grievance process was inadequately addressing his january tw grievance and given his admission a summary judgment that still was aware of the grievance and the evidence that the grievance was properly properly being processed through the normal grievance process a reasonable jury cannot find that steele was deliberately indifferent i'm not also responding to those letters or just addressed a couple of the fact of the issues that were raised by the defendants with respect to wexford and the discussion about whether mr stewart can or cannot suffer based on the medical evidence the extreme pain that he testified he suffered that is the definition of the of a question of fact that the trier of fact is entitle to result in this case not not if the district court on summary judgment i think that's important to emphasize here there is conflicting evidence in the record as to whether that's possible also the point about whether the fact that some providers granted this or stewart a black box exemption and some providers did not grant mr stewart a black box exemption that's also evidence that the providers for making arbitrary decisions about when he is conditions which no one disputes did not change nor did the pain that he claimed to have suffered from wearing the black box changed that is also evidence that there was confusion about and and  about who was entitled to it or not and based on that evidence the a reasonable jury could conclude that wexford what if that knowledge had to do something more than just leave it up to their medical providers mr stewart is not asking that mr steele intervene to grant him a black box exemption what the case law requires constitutional violation and that's the inaction that mr stewart claims is the issue for mr steele we also submit that the evidence about mr stewart sending before letters to mr steele was in the record there was testimony that mr steele's hurt mr stewart spent those records those letters to mr steele and even though mr steele disputes having received them that's again a question of fact a dispute of facts and the trial court at the summary judgment day and it was required to provide to view that evidence in the light most favorable to mr seale or mr respect to the alternatives available to mr stewart for wearing the black box it's my understanding from the record that one option was the leather belt that was proposed to be other option was simply to just use hancock's which allowed more range of motion because a prisoner is not placed in the twisted wrist position that keeps them in somewhat of an unnatural position for hours at a time i see that my time is up your honour's have other questions we would respectfully request the district court's grant of summary judgment in favor of the defendants reversed thank you very much our thank