e at the athlete's father mr philip anderson by being deliberately indifferent to his serious medical needs while he was housed in the tuscaloosa county jail so at the summary judgment in this genuine issue of material fact exists on the merits of the claim instead they happily must overcome abrams and collards assertion of qualified immunity he's got to prove that a collared violated anderson's constitutional rights and he's got to prove or stablish that the constitutional right was clearly established at the time abrams and collard active  matters not in which order the trial court addresses these questions but in order for qualified immunity to be denied both have to be established at the summary judgment here we argue  neither a constitutional violation was established by a happily nor was it clearly established law that the appellant's conduct in this matter was unconstitutional it was an open question as to honor in fact that they were on duty at various times during mr anderson's eight day stay the penultimate time with there at the end yes you know now back up with me there earlier when the when the shoe provided was told he was complaining of stomach pain or was it some other supervisor there were other supervisors who were good we had questions of fact there is to what you know how closely they were they were attenuated to the situation i think that would be properly defined as a question of fact yes and if there are questions of fact that are opened doesn't that deprive the court of jurisdiction i don't think so is an absolute immunity for these individuals regardless of what they may have known or done no i'm not saying that at all your honor what i'm saying is that qualified immunity zimm unity from suit and the purpose of immunity is obviously to avoid trial and so that the questions that must be answered in the qualified immunity analysis are whether or not a constitutional violation has been established at all under the undisputed facts currently then before the court and even if that is established whether or not there was fair notice to these defendants that their conduct for the for the conduct that's before the court in the record that they're accused of would have been considered unconstitutional just save the sake of discussion that the man had a broken femur and they were told oh we're taking care of it and the bone was protruding through them through the skin  nothing was done and they came back a nd time and syrup he's still complaining about his leg and it will be but we're taking care of it with a medical team we're taking care of it are they not required to look and say wait a minute let's be real about this this guy's going to go to the well to peter stuart hospital now i think i think absolutely they would in that scenario however it's completely distinguishable from this it is and i might add your are there are cases where and exposed femur may be left that way intentionally prior to surgery so that it can be to bride it and clean in effect infection doesn't set in if that were the case would you want to jail official with no medical training overruling what a licensed physician of more than forty years was telling him let's the question not was not that's the question thing to worry about right well and i think the answer is no we don't we don't want our jail officials supplanting their thoughts their opinions for a medical somebody with an m d behind his name i mean the purpose of that and the challenge of getting into medical school is just that we want our brightest and best doing that kind of work we our jail security officials with a much different set of rules and jobs performing reviews of medical diagnosis is not one of those jobs and just like we have in the civil medical malpractise scenario where we don't punish doctors who attempt to diagnose but make mistakes instead we punish doctors when they breach a standard of care we've got the same thing here where the jail officials were given specific information which is one mystery anderson is suffering from what they diagnosed as constipation that's not really a life threatening ailment it's probably an affliction every human on the earth has at one time or another endured even from infancy through out elder age two they were told and they knew he had been seen by the jail's physician several different nurses and three they were told each time he's ok to return to his cell phone what about the nurse statement and i'm not clear who she made it to the nurses statement let's just leave me alone i'm not going to lose my job over this i'm not going to send him to the hospital  when that was said was that record evidence that mckay who did she would say that the record evidence indicates that she said that in front of some inmates who gave declarations that were submitted after we filed our once we have additional evidence in this case than simply that do we not we have evidence that abramson khalid yelled at him accused him of faking even until the day of his death and at one point one of them through and down to put him up just to suggest that he was just not to be credible believed correct your honor that that goes beyond simply saying gee i relied on what the nurses or the doctors told me it even if even if it does go beyond what it does does it not it's not a question of even if it were up in the light has to are the facts have to be taken in the light and  do the selling that we have to send that and even if we accept that my argument would be that let's you know let's the court of the district court know that they don't fully appreciate the substantial risk of serious injury that this man faces if they think he's faking they're not appreciating that he is sufferer could be suffering from a substantial health risk and that is the st requirement of the subject of component of a deliberate indifference client you have to establish that these guys recognized that there was a substantial risk of injury or harm to this president they did it even the evidence says these jail for officials failed to properly appreciate the severity of anderson symptoms and the urgency of his condition i mean this is their own experts saying that if you square that with the fact that it wasn't too hard for detention officer van horn to earlier on him continuously discerned something was seriously wrong here well it's interesting that detention officer van horn didn't do anything about it either he's now  suppose the athlete would argue that he should have called some transportation for him to leave the hospital and see a nd medical provider but what i think he did was alert someone his supervisor that this issue needed to be looked into further i did more than that he immediately contacted the supervisor and he said that anderson quote was in very seriously bad shape and needed immediate medical attention and after being told that he had already seen a nurse he said that he responded that quote someone had to do something immediately for mr anderson and that whatever the nurses had been doing  obviously not working he was in terrible pain short of breath and barely able to move and the fan on went on in the said anderson quote was obviously in serious critically bad shape in need of serious immediate medical treatment everyone present could readily see that and vanno and said if we credit that he took it upon do we not we do your honor however who was present band horn statements as everyone who was present abrams and not collared do we know that from the record we do know that your honor they didn't even come back on duty until seven am of the  th all of van horn's statements occurred while he was on duty and the two abrams and collared and van horn were not on duty simultaneously on the th and th which of the two last days of his incarceration  transpired yes he did say that and there are five hundred and fifty to six hundred inmates in the tuscaloosa county jail at any given time they came on at seven o'clock abrams st made contact  with mr anderson at approximately nine thirty am he was assisted with one of the nurses they helped him out of his bunk to the bathroom again thinking he's suffering from extreme con mr anderson makes about the nurse instructs that they don't flush so she can examine it abrams helps him back into his bunk at that point there's no record evidence that he's vomiting moaning screaming any of this they are thinking in their minds as jail guards this is finally starting to work he said he was constipated or so we're being told he's now how to bow movement we're returning him to his bunk the nurse doesn't seem concerned enough that we need to do anything further why should i interject my opinion here i'm a lay person so i think that what these two individuals who are being threatened individually with financial liability in this case  you know the united states is the defendant that's admitted liability for the mistakes of their employees in this matter the medical staff but these two young men are being threatened individually with personal liability when they should have been shielded by may please the court i'm david schoen representing the police in this case i'd like to st address some of the questions that were raised and some of the answers that were given because some of the facts told to the court really don't match up with the record for example judge kelly you asked early on i whether these supervisors were told about the stomach pain or others were this to wisdom maybe misspoke but said those were other supervisors simply not true for the record here shows which of course as we all know must be taken in light most favorable to and over again screaming moaning begging for help this case is a lesson in humanity the other inmates in this cell block picked up mr anderson carried him to his bed when the guards wouldn't raise a hand to help it not only did they raise a hand they called him a faker they called him a liar they laughed at him they made fun of him and they're concerned now that they might face liability for that they should face liability for that that's how our system works  get before a lay person over she proceeds to the medical personnel on scene to two answers to that judge kelly very good question of course st there is no yardstick exactly how serious but it's something that should be obvious to a layperson in this case the lay witnesses and the medical witnesses said this kind of condition was a serious medical need obvious to a lay person as such by any standard but let me get to the nd question nd part of that question because there's really a misnomer here these no one's asking jail officials to overrule the medical staff here the medical staff was absent in this case they treated this man with antacids cursory treatment judge cards recogniz in opinion in case you said your honor sat on as the court recognized in mandela versus adult a long time ago cursory treatment is the same is no treatment at all for these purposes so what these two saw colored in a bruise on a daily basis was the continuing worsening condition and that's why your honor's question about the bone exposed from the leg is not it's not just as distinguishable if it's distinguishable it works in our favor this was much more obvious and much more serious have a question of fact here but of course there's a question of fact because these and if there's a question in fact do we have jurisdiction i think the court has jurisdiction over this i think that the question the answer is summary judgment could not be granted in this case because there material issues of fact but they're also wrong in the law i just want to come up with just respond to a couple of other things that were discussed here but i want to be clear there was no overruling this has been a constant theme they were asking jail officers to overrule the medical staff judge carnes mentioned the statement that the nurse made mr wisdom said well that statement was only made to a couple of inmates who gave their testimony after a summary judgment filed not true the record shows of the statement that statement was made to at least two correctional officers who gave statements acknowledging that would you think that makes you as a matter of law or just a shouldn't i mean a jury is going to determine whether the defendants were deliberately indifferent yes your honor not much that's we adopt a principle that there are circumstances in which a correctional officer should take action and that our case was already done that we're going to chart this out to figure out what these two officers and you say you said the nurse made the statement to correctional officers essential i'm not acting as a nurse anymore we're just like part of our hands we're not going to do anything for this man how do we attribute the knowledge from those two correctional officers how did we get that knowledge to these two defendants well st of all i don't think there's anything in the record that directly attributes knowledge of that statement to these two it may be that it was well known around there maybe because of these notes and so on i don't think there's anything i don't necessarily rely on that that's atmospherics of what was going on there and that was also relevant as to the liability of the medical provider which by the way put this plaintiffs and their family through hell for two years before they admitted liability for medical malpractise and wrongful death unprecedented in my experience at least in over thirty years of these cases that's how egregious this was but in any event what was obvious and clear to these two correctional officers on a daily basis was that they had an inmate was lying on the ground unable to move screaming begging for help that other  begging for help and he wasn't getting it from this cursory treatment that the met so called medical providers were provided did then know did they know that he was only getting cursory treatment well st of all their testimony is at odds as i mentioned in a footnote here on the one hand they say they had very limited contact with him and didn't know about his medical condition on the other hand in discovery they said they sent him to medical sixteen times whether they knew or not they had incredulity and that's what our cases have also said that the jail officials have an inquiry duty before i finish i want to get to the cases in a nd to the cases that completely destroyed this idea that there's no independent obligation of jailers to seek and get the required medical help i don't think his not that there might not be other circumstances where they would have been required to do more but simply that it didn't attach to them here i'm not saying it's a convincing argument beat is maybe it isn't but that's their argument not that under no circumstances could they ever be obliged to do anything more i wish that that where there are even judges i don't have to win this battle however they refused to acknowledge any of the cases they do establish clearly established this right and today the court heard again that we shouldn't be in the business of asking jailers to overrule a doctor who's been a doctor for forty years etc this doctor said i can't see him for a few days so that's that's how this doctor operated in this case and event just a couple of other things from this oh yeah the idea that a defense to it is well he thought these jailers thought they were faking therefore they didn't appreciate the significance of the risk therefore they should be absolved of liability that's absurd and also has been specifically rejected in one of the cases i'm going to tell the court about that to stablish is the right the jail out of the jailer had a policy of never believing inmates they're all liars they're all fakers and the court said that's a policy of deliberate indifference that doesn't remove the subjective knowledge requirement and the serious medical need here by the way as an objective component of the case in any  to the obvious and serious nature of the condition and proximate cause that had they just responded had they not delayed this is a case that has the whole panoply of deliberate indifference it's clear deliberate indifference but it's also delay it's cursory treatment equals deliberate indifference has something for everyone in this case frankly and so when collard and abrams came on duty at seven o'clock in the morning on the th for example that's the end of memory came in the night of the recognizable with treatment easily treated easily treated he doesn't die that's the medical testimony undisputed in this case i don't mean to suggest for a nd that there is not a serious condition that could lead to death  from reading the notes on the th and by the way they were on duty on the th the record shows that so they were on duty day shift on the th by the time van horn gets there for the evening shift he says he finds mr anderson unresponsive unable to move he couldn't answer questions he was sweating profusely the other inmates told him this guy's in terrible shape serious bad shape this is all the undisputed not undisputed this is all the factual evidence that must be accepted as true so the medical expert says even in the matter of hours had they simply sent him to the e r before he goes into cardiac arrest they could have saved his life to let the risk certainly would have been greatly  lessened it it's just that simple now as to this by the way the other idea that they have no independent duty otherwise their own policy manual says they have an independent duty their own policy manual it's in the record it's page twenty three of that exhibit  in the record that is i'm sorry eighty six dash seven and page twenty three says that ordinarily medical staff should refer to the emergency room but in extenuating circumstances a supervisor has an obligation after by the way also getting all of the training they're supposed to get to recognize these kinds of conditions independent obligation for the jail supervisor to also send them to the e r that's their own policy that they ignored and judge carnes by the way in that other case i mentioned is called  honor mentioned that the policy policy is relevant to inferring whether a conduct was appropriate or not let me just i have some minutes left i know that the court said that you know the court doesn't understand their argument to be that in all circumstances they wouldn't have the duty that had been their argument all along jailers don't overrule medical staff medical staff says it's constipation it's ok that's it in any event even if we're wrong about that help so he came back and daly said get him some medical help you need medical help he was seen many times by medical staff but the condition was obviously not just constipation the guy lost a lot of weight while he was in there and there were other symptoms and so they  condition worsening and the court clearly said that in that case that it is no defense that they simply were relying on medical treatment a case that's cars over his bay county that may be the strongest  this was the pregnant maid was amniotic fluid was leaking for eleven days again many medical visits treatment treated as if because she was pregnant and so on she complained she asked for help they didn't give it to or the fact that she was seen by a doctor the court said a one thousand three hundred and twenty seven does not mean that a layperson can still independently tell the child of serious medical need that wasn't being addressed in this case it was a jailer captain being sued he had a duty the court said to look further into this into the treatment she was getting the condition she was suffering from and to get her the help a policy of willful blindness washing your hands of the matter by saying i referred to medical is no defense in canada absolve jail staff from liability to take when you see a worsening condition take action and there's a clearly established right to the same and again to say i always defer to medical staff is a policy of deliberate indifference finally the case i mentioned before judge that happened in two thousand and twelve a jailor your honor said in one thousand page ninety nine or the court said i'm sorry i said in the panel judge joe pryor and judge jordan learning about a headache and a sore throat so painful that the inmate was unable to eat or drink for four days with a severe ration pealing lips screaming for help asking for help deliberate indifference for the jail not to get that inmate help kids are sent back summary judgment was wrong as to that jailer i submitted a twenty eight j recent case which also has some principles doesn't go to the clearly established in one thousand nine hundred case however it reaffirms that these principles are all still alive that's where we are in this case this is a horrific case this is a case in w be held to task for their conduct this is not a case that qualified immunity was meant to apply to in any way shape or form we have the medical evidence we have the factual evidence in the case i see my time is up let's say i want to say especially want to welcome you judge kelly because if my research is right you were born in freeport new york i was  a jailer could not be liable for deliberate indifference eve just because the inmate had been seen by a medical staff are you know we're not saying that but in this case the inmate was seen by medical staff and our law is clearly established is it not and was clearly established at the time is it not and your clients therefore would have been notice on notice at that time that they were not free with impunity to ignore a deteriorating serious medical condition where an inmate was begging for help was doubled over in pain and cetera simply because he had seen a nurse or a doctor earlier not simply because he had seen a doctor or a nurse but let me just his condition was an emergency was not an emergency and the court concluded in the light of this evidence no reasonable jury conclude that either chambers or daniels knew that townsend situation was an emergency i think that's much more analogous to this it's clear the record is clear that mr henderson was seen by the medical staff on multiple occasions course we have incoming shifts that don't don't always know what's going on but right with the critical language in towns and the jefferson county was that he had not presented evidence that the situation was so obviously dire that to lay deputies must have known that a medical professional had grossly misjudged the condition and do we have the same thing here i think is pretty close why the medical staff has meant taking the facts in  these two officers come on duty on the morning of february th they go down to check on him at nine hundred and thirty approximately nine thirty in the morning there's no evidence that at that point he's moaning and groaning in fact their testimony is that he's appeared to be watching t v but they ask him what's wrong and he says my stomach hurts i haven't been able to have a bowel movement and they say let's go to medical so he stands up and says why don't i go the bathroom the nurse the medical units right across the hall from his dormitory the nurse comes over and says we're treating him and he has a bell movement while they're there so the the evidence before these two officers is an inmate claims he can't have a bowel movement medical tells us he's treating he's being treated he has a bell movement i'm not sure that that rises to a level where they should automatically know that this is a condition that needs they need to go to hospital right away is that a question of law or question of fact well i think they're undisputed facts so i don't know that we have to get into that but i think the question of law is are that is there enough there to notify them that this is clearly obviously a condition which is not being treated that and i would assert that there's nothing in that scenario which would put these officers on notice willis is going you are motioned for qualified immunity not their show motion to establish damages in liability correct correct and so we are stuck with the facts but i don't think that these facts are in dispute but there's nothing that would notify these officers that the treatment that he's receiving is so cursory as be no treatment because it appears that he is getting better and that's exactly what dr had said in his expert opinion was normal course of this disease and i see my time is up thank you but i thank you thank you both for your efforts will take the case under advisement and proceed to the last of the cases this morning play nation