medical indifference and to reopen discovery this case involves a pro se prisoner with legitimate civil rights claims he was stymied by procedural rules that every step of the legal process specifically the lower court erred in four ways the combination of which deprived mr nelson the stay in court first from the get go mr nelson's complaint was stripped of one of its strongest claims his claim for medical indifference during screening the court failed to address m indifference claim mr nelson mentions facts related to that claim in at least six times in the complaint in the supporting papers the court also failed to explain to mr nelson the deficiencies in his his claim so he could potentially amend it then  looking at the nature of the claim that's presented here what i'm trying to understand is the limiting principle in a prison presence a dangerous place a lot of dangerous people in a prison and there could be all kinds of administrative decisions that could put people in danger i mean changing the lunch hour or changing up who gets access the weight room or to the yard could create very dangerous situations in prisons how do we distinguish this case from the typical prison decision case where  life the life of prisoners so what you have here is just a narrow question which is did did no been present evidence sufficient to establish a material question of fact as to whether or not that were created evidence nearly the same evidence presented by mr nelson and evidence of the president's actions both at the time of the strike and post strike bell held that there was material question of fact as to whether whether there was deliberate indifference in issuing an order that both endangered prisoners forced them to make a choice and it wasn't clear that there was a penal logical justification for parading prisoners strike breaking prisoners in front of their brethren which you know who are yelling death threats at th it's not clear that there was there's a question of fact as to whether it was a logical justification for that good afternoon noon your honor may have please the court my name is jill o'brien and i represent defendant captain steven peck this court should affirm summary judgment for captain peck because he did not violate mr nelson's eighth amendment rights mr nelson admitted at his deposition that he had no intention of crossing the picket lines because he was ill because he had no intention of going to work he didn't face an objective risk to his harm in addition captain peck and many other prison staff took a number of steps to ensure inmates safety it's all in the record kept in texas counterpart kept in new ring surveyed over one hundred thirty inmates about potential threat the facility was placed on a modified program which limits inmates movement and their opportunity to access other inmates that restriction was only incrementally lift it and the officers followed up on those survey responses personally interviewing inmates who said there might be a threat to harm these steps do not show the liberates indifference to safety captain tech did not have the subject of inten required to violate the eighth amendment summary judgment for captain peck should also be affirmed because this court held in la betide versus corrections corporation of america that where the record makes it clear that a  plaintiff understands rule fifty six the failure to give a contemporary nice contemporaneous rand notice is harmless error here judge prison gave the ran the notice upon ordering service on the defendants but did not and eleven so quite a while but in the meantime mr nelson for summary judgment himself your honor and in that motion he laid out the standard he cited the three united states supreme court cases decided in a fifty six cited the evidence that he'd need to overcome the motion and more importantly he applied the rule fifty six analysis to the material in the record he took issue with many of defendant's facts in the statement of undisputed facts he cited to the witness declarations he provided in support of his own motion and he showed that he knew how to apply the standard to the material in the record guarantee inmate safety but any other statement by captain peg would have been untruthful the united states supreme court recognized in farmer versus brennan the prisons are bala tile places and what is expected of officers is to take reasonable steps to ensure reasonable safety no officer can insure or guarantee the safety of in me the prison work strike was not an inconvenience for captain pak mr nelson claims that captain tek ordered inmates to work simply so he could write them up for a rules violation but the rules require inmates to work for an important reason the prison is responsible for providing food and medical so over three thousand in me if inmates are not available to prepare meals for example officers have to do it and those are the officers who would be a scorching inmates to medical appointments or to visits the record here talks about that medical staff had to conduct rounds in different building every hour and a half to deliver diabetic medication and other inmates here captain tech was in forcing important prison rules and not simply trying to write up inmates captain peck worked with inmates on the men's advisory council before the work strike and during the work strike to try to negotiate with inmates and resolve the issue the fact that the prison used amended by zurich committee representative has conducted intimate surveys follow up interviews to assess the threats these are all steps that the prison took reasonable steps to ensure inmates safety captain tech did not violate the eighth amendment because he didn't have the required subjective intent to by the record and this court in grossman versus the city of portland found it important whether a defendant is following a regulation here captain pack was enforcing the title fifteen regulations he was not the plainly incompetent or someone violating the law knowingly he was simply enforcing important prison regulations to ensure that the prison ran smoothly so that the three thousand other inmates could receive food and the officers took after the work strike started and even leading up to it to work with the men's advisory council the incident report gives a great bit of detail about what actions were taken so i believe this court has the information it needs to decide supported by the record so ok so so he continued to request assistance of counsel on numerous occasions and isn't that a sufficient basis for us to indicate what his thinking is or understanding of the procedures and certainly  see six no your honor because mr nelson repeatedly said he needed counsel to conduct discovery he was aware of the process and judge bars on scheduling order went above and beyond the rules of civil procedure and laid out exactly how many requests for production and requests for admission he would be allowed and mr nelson assistant an inmate helping him testified in the record that he read mr nelson that scheduling order specific to the number of requests for admission the number going to rocket tori's and the number of document requests mr nelson repeatedly asked for counsel because he said he needed help conducting discovery three days before the clo discovery he had his deposition taken he claims that this is the first time he knew he could conduct discovery but that conflicts with the record and what judge present had told him previously his his response to judge present scheduling order was also not logical because judge garzon scheduling order was clear that any supplemental response to discovery also had to be done by october third so for mr nelson to read that responses had to be in he would know that his requests had to be in as well mr nelson faults judge prison for screening out of deliberate indifference to medical claims but the complaint was clear and outlined three claims the first one was attempted murder which judge  prison liberally construed as a deliberate indifference claim against captain peck for encouraging mr nelson to work the two other claims were for falsifying documents and destroying evidence mr nelson did not include claim for deliberate indifference to medical care he mentions his mersa and supposed alleged gang green infection in a section where he asks for emotional distress damages of twenty five thousand dollars and he says i quote they were allowed because he had this physical problem he's aware that he can't get emotional distress damages without a physical injury this was the mention of his medical care his three claims in the complaint did not include these as a factual matter mr nelson never intended to go to work he said in a response to a grievance in prison i quote those who cross the picket line are not safe i was ill and thank god so i wasn't forced into that situation mr nelson was not forced to choose between an objective risk to his safety and not captain tech acted reasonably and is entitled to summary judgment thank  deliberate indifference to harm claim is well his it's a post a complaint but when you read the complaint there is no dispute that he mentions the failure of medical care in there at least six places that he discusses it in the complaint in the supporting papers and the state has argued in its papers that this was precluded by another case however that is incorrect because the factual basis here is different the other case involved  nelson had an infection and was sent to be treated for that infection and they gave him the wrong medicine and that is what the original case was about this case involves what happened during the and the gangling returned and eventually he was forced to have emergency surgery where he almost lost a portion of his stomach and so mr nelson doesn't raise expressly a medical insurance claim but there is enough in here and given the liberal pleading requirements for and the fact that the this this district and courts regularly we may and when liberally failed to liberally construe it were at the very least informed prisoners that they potentially have a claim based on the facts that they have failed to importantly looking at what was happening at the moment and at the time one of the basis for the strike was that it was a kind of a second out and so mr nelson had reason to believe that even though he actually was really sick so sick that he required emergency surgery shortly thereafter that his claim of being sick wouldn't be believed so he was forced into the same position as every other prisoner they had to choose between disobeying a direct court order or being paraded before their colleagues as a strike breaker  this open death threats so the lad the other thing i'd like to say is that the the nothing that the that the state has said about the facts in the case change the fact that those are disputed facts that give rise to the jury a question as to whether or not what the prison did here was reasonable and i think the question of the edwards decision there was no further questions thank