all right our second case for this morning is mitchell against callas and others you know the i was born assessment all this for somebody finally to decide that she needed the hormone therapy that obviously we run into this policy about six months before the end or is your focus on the parole agents who didn't follow through and in fact according to the allegations as i understand it were preventing her from presenting as a woman what's your main focus here so i think that the main focus of the briefing was on the delay and then followed by the decision to to deny her treatment after the report came through and said she was an excellent candidate for him in treatment with that said my client does very strongly that that is contradicted by her fair reading of her complaint later the district court then in a motion to reconsider said well you know she could bring this up in a separate action and i think that she understands that but that she she hopes to exhaust this appeal first and so if possible that she would prefer to bring it all in one piece and have i was measured i understood exactly what the district court did there did the district court dismissed them then i mean it's one opinion said that she could bring it in a separate section so this all relates to a line of cases that we've had about how broadly one is to read rule twenty because there certainly have been prisoners mr owens is a repeat offender and those who file you know seventy five claims against forty four people you know in three different prisons and so on and we've said to the district courts you need to make sure that this case is really all about the same thing so i understood you to be arguing that the district judge here took that idea too far that the claims against the parole officers while somewhat off that you that it's your view that rule twenty says this really is still the same transaction occurrence cetera that's correct there was there was a direct line there's almost no time that elapsed between the decision that was made to to  report a decision made to deny her hormone treatment she was released and then she immediately went into these parole conditions but the senior ski strachan in the district judge dismisses without prejudice wisconsin has the longest statute of limitations  claims in our circuit but even six years a lapses at some point why wouldn't the prudent thing to do i know it's another filing fee but just file the other case against the parole officers maybe even move to consolidate if you want to see what the district judge thinks so i certainly agree with that my client represented herself below i've been appointed only for purposes of this and we appreciate that but i don't know i certainly agree with the court's going to be on that but but which is to say that but i got it that the argument is you characterize it correctly that it is paul part of the same transaction and occurrence she provided a copy of the osborne report to her parole officers assumed she was released and so they saw the recommendation you know that she received mormon treatment that she would be permitted to live as a woman and that importantly that this would reduce her odds of her citizens and yet her allegation is that they prohibited her from seeking treatment forced her to dress and present as a man and thereby hindered her her necessary medical does the state ower duty of medical care to persons on parole the law is not obligation not to stand in the way and that i understand getting understand that theory but thanks so because i had a similar question i was thinking that the rationale of the stele against gamble with respect to medical care in the prison is you're in prison you can't just say hey i have a doctor's appointment this afternoon and go leave and go see the doctor of your choice and so the quid pro quo is the prison has to give you acceptable medical care and so we have plenty of litigation about whether that's happened or not that might be your delay claim but once you're out on some form of parole or supervised release i wonder if the rationale falls apart a bit because it might depend on the conditions of release if you're in a halfway house where you are in fact not free to go to your doctor's appointments or to whatever else may be the rationale if you are in a more liberal form of release whatever that may be maybe you can go to your job you can go around you just have to check in with your probation officer once we can promise you can leave the jurisdiction or whatever i don't know why those people fall within the rationale of the still maybe you can help me so so i and again i don't think that the claim here is i think all of what you said is correct and i think that it's not a claim that they needed to that the pro officers needed to provide her medical care or ensure that she received it it's just that they can't stand in her way for junking office and don't impose conditions of parole that make that medical care impossible you know they force her to show up every week even now dressed as a man and so she's taken to wearing you know the same outfit every time so that she doesn't get a hassle when she shows up although she has is trying to live as a woman to the extent possible and with that violating her parole apart from the dress issue did they do anything else i mean you said they forced her to live in a halfway house for a man correct but didn't to either of those actually prevent her from getting treatment or was there anything so i believe it was i believe was a homeless shelter for many if i remember correctly and then forced her to dress in a certain way you know that the complaint is handwritten and it's not that huge amount of detail but my understanding is that her claim is that they told her that she could not see this treatment and so they stood in the way of her actually seeking out hormone treatments or it seems like they may have some control in that take that would tend to think make me think there is an eighth amendment mentioned here because if they have the ability to say to her we are going to block your access to a certain form of medical treatment then she's not in the same position as just a normal citizen is wandering around with no stricture has there been some administrative litigation involving the parole agents were the the l j came down pretty strongly in cloying you say in your brief you page seventeen that large portions of this delay are traceable to a lack of d o c resources in the absence of d o c policy or else are unexplained by the on dr callous and dr laurent individually could you address that concern so i think that even against that backdrop that the information that they had and the actions that each of them individually to that a deliberate indifference to the unreasonable delay here i think that you know dr callus was personally aware of her request facilitated the brief internal review of it and then referred it to mr to ms osborne the outside consultant  he retains the ultimate responsibility here we know that she that mr mitchell reached out to him in several letters during that interim period of the one report because we have his october eighth two thousand probably her best references multiple letters and very interesting lee references you know that that the report is almost complete and it should be just a few dates that suggests you know i think the reasonable inference there is that he had fair warning at that point of how it was going to come out  a little weird that miss osborne who's not even a psychologist and over in baltimore is the only person in the united states who does that is correct and i think that there's not there's nothing in the record to support that assertion and there's no suggestion that anyone at the g o c tried to find someone more local someone who had more time to devote to ms mitchell and then with respect to dr loretta you know she she met with much miss mitchell individual lee there's a dispute in the record actually about that what exactly what happened at that meeting ms mitchell says she complained to her that you know there was a this delay she certainly had responsibility to review all of the psychological insight psychological treatment notes which encourage you to read through because they really show the deterioration  be targeting or dealing with her gender dysphoria in any way i think mostly what you see in the notes is her complaining that she's remaining untreated and then you also see you know a lot of references to her p t s d to her nightmares to her other mental get treatment started yet what's interesting here is that they never actually started on those physical tests and so all of this whole delay is was associated with just determining if she would be a good candidate for it you know reading the i was born report and and honestly there's not a single fact in there to suggest that she isn't and so it's not clear to me why it took so long there's obviously it's difficult to draw a bright line and say you know x number of produces this report if i remember it's around november and she's due to be released in january and so they all just say well well it's too too late you know because we're not going to have the six months that we need to get this started so i have some hypotheticals for you suppose instead of gender dysphoria she has been diagnosed with a thyroid condition which can be very serious for people and it can require medication that needs adjustment over time it's a very delicate hormonal mechanism not unlike the gender d do you think the prison would be entitled to say well too bad sorry of this iraq condition but because you're going to be released we're not even going to stay we're not going to any provision for a handoff from the inside the prison medical care to the outside of the prison medical i'm going to give you high blood pressure there are many conditions that are serious medical conditions that require medication that needs tweaking indeed bipolar disorder  very unclear which drug is going to work and how much of the drug many conditions like that and if the position of the wisconsin prisons is any time somebody has a condition for which the medication needs to be adjusted over time isn't entitled to any medication at all if they if this need becomes apparent within six months of leaving the prison i have a really hard time with that diabetes it could even be lethal if you're not getting some form of treatment you could go into insulin shock you could do things and so i'm trying to make it clear that what's happening to her is really just an example of a general problem and if the wisconsin prisons just dropped the ball then that sounds like deliberate indifference to me i think there's two parts of the decision you're so so i think you're referring to it may take a little while to land on proper dosage too and so they say we're not even to start we figured out that you're a great candidate for this but because you're going to be released from prison sometime in the next six months we're just going to kick you to the curb basically we're not going to start so and i have a real issue with that because it seems to me there are many many medical conditions where you just have to start and if the successor physician thinks that some adjustment is necessary then that's what this  said i think there's there's two things one is the amount of time it takes to land on a dose that achieves the optimal positive result so for diabetes adjusting your blood sugar level may take a while to figure out what dose diabetic person if they're going to be released in six months or what i was what i was going to say is there's the flip side of that which is the the negative side effects of continuing a particular dosage without the proper monitoring so i don't kno going to monitor and til the day the person leaves well the issue is not whether the prison monitors but the issue is whether if the prison gives miss mitchell say a six month prescription for these kinds of hormones she has only a month left she starts taking the hormones and prison the prison monitors her derived i think every six months prescription why not a prescription that lasts you know a couple of weeks into the period of release to give her time to find a doctor and tell the program parole officers by the way that they have to help her do that well stand in the way of it well sure i mean i think there's there's it's unclear whether two weeks of hormones before release would really do anything i was saying you know so so let me find the dates fifteenth they receive it december the second and she's released in january i believe of the twenty third so let's just say roughly six weeks two months later so you trigger during that six weeks to two months and you give a little bit of a bridge into the release time that's where the two weeks come to and you treat her if it's four months you treat her for four months it's a one month you treat her for one month but just as you would certainly treated diabetic you treat somebody with thyroid condition you treat somebody with high blood pressure which can lead to stroke and can also be fatal you treat the person you don't just say oh well you're going to leave so we get to ignore you medical opinion it would have been unsafe and irresponsible to begin her on the hormone treatment let her continue the hormone treatment without proper monitoring when i think it's why is he is suing that there's no monitoring why why well here is no medical profession outside the prison how can that be what he and again would he have said that if it was diabetes i bet not well i don't know if diabetes carries the same potential adverse side effects it does you if you have too much insulin or too little insulin trust me it does so i mean i think in the only evidence in the record here is dr callouses medical opinion i understand that you know miss mitchell would have preferred to to receive the hormones a month before her release you sound like if she'd prefer to have an ice cream sundae instead of a piece of cake that's not really preference that we're talking about she has been trying since the day she entered this prison to drill home the fact that she is a transgender woman can she get medication to help her deal with this fact right i mean you knew when the day she came in you knew that well the day she came in what do you see new is that she had a diagnosis of gender dysphoria what do you see did not know is how best to treat that diagnosis now it is there a case is where patients come into dios you custody with an existing prescription and yes there is some duty when when a patient comes in with that prescription to to continue the prescription or or try to get a you know on the approved formulary if it's not already etc etc but that's not the situation here all all the o c knew when she entered custody was she had this diagnosis and i think it's very clear from the record in the standards of care that we reference that there is no single treatment that you necessarily need to to receive for gender dysphoria some patients need hormone treatment others need to take a step further to resign with surgery but some don't need either one is why does it take them fourteen months to figure out what she needs she comes into the prison october eleven twenty eleven and v o c has the final report in december of well you know i can't say it really depends on the facts of the case remember this is a case about personal liability for dr callous who is the mental health director for the entire d o c so for mr mitchell to survive summary judgment sheens to show that he was deliberately ind had his his his individual state of mind it was and i know she needs this treatment and i you know i'm not going to which is why i was focusing on that final period by that time he knows that she needs to treatment no one disagrees with that there's no dispute of fact whatsoever as of december two thousand and twelve that she's a good candidate i was born says so everybody else thinks so no one is contesting that but he decides to leave her untreated he decides based on the medical judgment if i mean it again it's that we cannot stabilize or on the proper dose a safe dose that and monitor her to ensure she doesn't experience the adverse side effects of cardiovascular problems can result if you have the wrong dose of these hormones so it's not clear that you can even receive the effective treatment in a month you may not be able to find a dose that's even close to one that is is what she saw those two months  is in his mental condition has deteriorated on just so we have to it's observable can be given no treatment during that period because callous referred to at the time i think what's important is on these facts this is not in a case about equitable relief with respect to a d o c policy this is a case with respect to dr callouses individual medical judgment about this particular sounds like he wasn't making a medical judgment he was making an administrative judgment that the policy says six months she's going to be released within six months don't do anything so that's not a medical judgment good play does the policy say six months i think whether it's in the policy or not is though i think it's really a bit of a red herring here i mean the issue is whether with respect to miss mitchell whether dr callous had some medical justification for the decision he made it's not just that he looked at the policy and said all of the policy says six months of applying a policy without thinking about it at all in dr callouses declaration he provides reason he provides medical justification for the decision he made and i think without any countervailing ex testimony or already thing in the standard the standards of care from the world professional association of transgender health professionals doesn't say anything about how how quickly you know this treatment needs to be get i mean there's no countervailing evidence in the case about individual liability there's no indication that dr calloused personally knew that she was facing substantial risk of harm based on this based on you know not giving treatment in the in the last not giving her the hormone treatment in the last month and even if he knows of these generic risks i mean i think he's entitled as the the do you see mental health director with and he does have ultimate authority over these treatments to render a medical judgment about what is appropriate in these kinds of situations have very badly served her shirt well what i would say is that is a different i think that's a different case i don't want so how can you even know where to draw the line between this case and that case is all arises out of the prisons confirmation of her diagnosis as bourne's report which is handed down from the prison over to the parole agents and they take their marching orders from from there they should have except they didn't well they want to let her dress as a woman it's true that this all in some sense some level of generality does relate to her  close level well relation what i would say is is the case was litigated a summary judgment is about the duties and responsibilities of medical professionals supervisory medical professionals with respect to the health care dition well that's true but i think and when the rationale for not treating her is because she needs to be treated when she's outside well i mean i think as was as was addressed in the in the open what that's what i'm saying i think the prologue officers are not a different doctor callus they have their individual responsibility to stand up but it's resolving their individual responsibilities and whether they have in the moment duties at all to individuals on parole that's unsettled think there's there's i mean there's two very different parts of this case what are the duties of a supervisor g o c official who is a medical professional and we wonder though if you had a prison guard beating somebody out than then they got taken to the medical unit and the treatment of the medical unit was on satisfactory that would be one case even though the duties of the prison guard not to be abusive are different from the duties of the doctors to provide decent medical care but you would and  would not have any hesitation saying that was one appropriate case and this is true the same ok the doctors have certain duties the parole officers have certain duties but it's all one fact pattern well i think the difference is in the fact  miss mitchell was in d c custody of the case really focuses on the length of this evaluation period and the ultimate decision to deny treatment i mean those are you know what happened you know who where was the report what stage was the report process sad during her period  reading her pro se complaint very tightly i'm going to say i mean again i think i'd say the district court has broad discretion over how to handle these types of claims whether sever them the very last thing i would say i think a lot of my time and i apologize for that is i think this case is really a classic one for qualified immunity for dr callus i mean i think there's there's no authority that states i mean typically the rule is supervisory individuals like him because he runs the entire mental health unit for all the o c institutions individuals like that  i know you're talking about jack again but i'm thinking of the parole officers right now and you have two pages and a little bit about little twenty that you say that they're entitled to qualify you right we didn't we didn't make that argument in our brief we clear that you know the great danger that ms mitchell faced in having completely untreated gender dysphoria for this period of time i think also as referenced in the brief there's a reference to the possibility of bridging hormone treatment which is i think what this court has been talking about where they would put her on an initial dose and then coordinate with an outside doctor in order to ensure that over that transition when she left the prison that she could reach an effective dose that it was that prison health care is challenging enough in prisons and we see plenty of those issues but it also can be very very challenging for somebody who's just been released from prison even without obstacles from parole you can can deal see first of all what do we know some capacity encourage her to pursue that such treatment think that and i think what about the qualified immunity issue with respect to the prison official so with the qualified immunity issue i think that that what the way i think about it is really breaking down into the fact that even if that the medical understanding of gender dysphoria or its treatment and certainly the public understanding of it has been changing rapidly the legal framework that these defendants have to operate within has not been changing and the president makes very clear that an individual should not face any unreasonable delay in the treatment of a serious medical condition there are numerous cases out there suggesting what are not unreasonable delay is in a variety of contexts and then there are also cases making the point that psychological maladies are to be treated just as seriously as physical ones and so i think all of that adds up to reasonable warning of what the responsibilities were in this case