good morning and may please the court my name is tom roberts from williams and connelly and i represent jim your nelson representative of the appellant tony koster in this matter and i'd like to reserve four minutes of rebuttal time because there are two issues in this case and the first alleging deliberate indifference to a serious medical need of an inmate and given that the serious medical need has been conceded there are many questions whether there is a subjective showing of deliberate indifference that is where the defendants knew of and disregarded a risk to custer's health and safety resulting in the infliction of pain and suffering unrelated to any valid penal purpose one thing they can confuse me whenever he went to the medical folks in the institution they always commented about how the her new could be reduced with manipulation was included me though that they actually either manipulated it to try to reduce it or did in fact manipulate it but there are numerous notes numerous visits  i think that there initially there are indications it it wasn't always clear from the notes or from the beam declaration which basically reiterates the notes whether they were always nifty elating it or not there is discussion of it being reduc what's what's interesting is that right at the time of august two thousand and two when they when they deny the surgery request they say that the hernia at that time is easily reducible but the only time that that actually appears in the notes is tacky in october of two thousand and one and thereafter there is nothing in the medical record that indicates it was easily reducible now i know that there's a contention that i think that what the government would like to try to do is to sort of say as long as this is a reduc hernia that's the end of the story but i don't think that's the case i mean what we have here is and what i would submit just jumping to that point right away is that what what is inconsistent and then he's made some other statements which would suggest that he wasn't the best informant in terms of reporting his own medical condition he demanded rast for sinus surgery at one time and it seemed to he came in and was presenting that he was ten out of ten in terms of his pain and he related that he'd been trying to do with this is well as he could but he was just in the point we simply could not function anymore and they ignore that that's one thing but if does your honor but i think that that the record is replete with evidence that he presented his pain i mean there are history to his account of his own verified complaint but even if we put that to one side and just look at the medical record which obviously the medical record is not necessarily accurate is not necessarily fully capture his situation but even if you just take a look at the medical records well you see something where he may two thousand and one notes constant pain and then april one two thousand and were low but they were consistent with our class and that's i mean this is me that they were responding to his presentation well there's some treatment that he receives there's no question about that but the issue is whether i mean that's not the end of the story because you can have to liberate indifference where there's a delay in providing needed medical treatment or where there's a deliberate attempt to apply a less education is mode of treatment with the result being that such the pain and suffering of the that are on the record so there the statements by the by the defendants that they would not provide the surgery regardless of his of his health condition and then we have a recommendation for surgery as of april of two thousand and two  were said they wouldn't provide surgery regardless of his health condition or given the medical history in the fact that it still appeared to them to be producible five minute manipulation they were going to provide surgery because they didn't do that kind of surgery in the institution well i think what they said was that to to mr custer was you would have to you have to wait until you're released from the prison and what that means is that the fair inference from that is that regardless of the condition of his hernia he would not be approved for be pretty attractive in deliberate indifferent the way yes around and i'd also point out i mean there was the initial surgery recommendation in april in may of two thousand and two it indicates hernia belt is is not providing effective relief then in august of two thousand and two the second doctor on the committee of the only two doctors he recommends surgery and yet when the doctors are at the utilization review committee the same three doctors deny the surgery there's no explanation for why they're telling castor one thing and doing something else when they get to the utilization review committee and i would submit as well that at that point it's also indicated in the in the notes of the utilization review committee which is j one fifty two tried conservative treatment and it's so it's clear by by the latest of august of two thousand and two they've tried the conservative treatment the conservative treatment is not working he was just there in may of two thousand and two and there was an indication of pain that averages seven on a one to ten scale and yet not only was not right at that time but the circumstances under which the state surgery ultimately was provided were highly suspicious because even as of november two thousand and two by that point the search the hernia is no longer easily reducible it continues to grow and yet no surgery is provided it's only immediately after he files a district court complaint in january in the latter part of january of two thousand and three that suddenly and that suddenly in early february two thousand and three he sent to an outside surgical consultant and not only that but there's no explanation in the record of why it just there's there's no prior approval from utilization of you committee dr beem doesn't say due to the change conditions of his hernia we now concluded as a matter of medical judgment that he deserved the surgery it simply happened so i think if you put all of these things together the fact that they said they weren't going to provide the surgery the fact that the conservative treatment was clearly not working you have a background of numerous complaints of pain that are both in his complaint and in the medical records and then also you have the clear growth of his hernia i mean it starts out there's no mass reported in early two thousand and one in the latter part of two thousand and one it's a golf ball size shape in april of two thousand and two it's fairly large in may of two thousand and two it's a large hernia at the end of november of two thousand and two it's down into his scrotum and then he's goes in for surgery and they discover the he has a tumor that's covering fifty percent of his abdominal cavity everything you just described sounds like they tried conservative treatment it didn't work and then they perform surgery are we dealing with that worst medical malpracti no because i think what you see it as of august of two thousand and two that they know the conservative treatment is not working and he gets surgery six months later and that big but not only don't sometimes a lot of people on the outside have to wait six months to get surgery  it's it's obviously circumstances may vary but the question is does it indicate an exercise of medical judgment or is this consistent with a determination that they weren't going to provide him the surgery and if you put together the fact that they told him they weren't going to do it then you have that the two doctors who are on the committee have both recommended surgery and yet in august of two thousand and two they deny it and then they only provide the surgery then i do provided they do but it's only it's only in response it's high it's highly suspicious that he's basically rushed to a surgical consultant from could i run choir you say it's highly suspicious with the recognition that they were at fault or simply a recognition somebody might think they were at four and it would be better if you clean this up right now if there had not filed it goes to show that what was being done before were just stalling tactics and because the evidence calls into question the intent of the doctors in performing the treatment that they performed and ir nelson the purported representative of mr coaster the problem that we have with that is that there's been no proof at this time that mr nelson is in fact mr coaster son or that he is even a representative of mr coasters the state if there need to illustrate the problems that we have with allowing any substitution at this late stage i'd like to go through a brief timeline of what's happened given you notice of this fire that you did i miss something you might have your honor because this what happened was last summer i learned for the first time that mr coster had been deceased during the entire representation by pro bono counsel and i informed them that they evidently did not know it and when i informed them of that i have filed a suggestion of death on little bit in march two thousand and five mr coaster is still alive and he files this appeal this appeals docketed pro se in january of two thousand and six mr coaster seeks appointment of counsel on appeal for the first time he's never asked for that in  district court but he asked for it on appeal in october two thousand and six mr coaster is he's been convalescing from his cancer up in a prison medical center in rochester minnesota he obtains compassionate release and in november two thousand northern just it of ohio notes his death on the record that means as of march of zero seven anyone with a pacer account and forty cents and a reason to look can find out mr costers dead on october twelfth two thousand and seven this court unaware that mr automatically his attorney yet so he's given sixty days to review the file and i submit also at least try to contact mr coster to see if he still wants him to represent him or if he even wants to go forward with the appeal evidently that's never done because we don't hear from counsel until november two thousand and eight when mr white when asked for two months extension time to file the opening brief in appendix we don't oppose that believing the tacit representation that there's a live client behind all this is that time in november of release so they don't know if you look on the v o p locator it just says released so and anyway as of october of zero seven i couldn't contact mr coaster directly even if i wanted to is represented by counsel theoretically so february of two thousand and nine mr roberts comes on the case for the first time files a motion to substitute himself for mr white i'm in and ask for another extension of time to file the opening brief again we don't oppose these things at march two thousand and nine i enter my appearance and i do what mr white and should've done in the first place according to this court's letter which is i try to verify from the b o p whether i have the entire medical record in the course of making those inquiries and it takes a couple weeks because the records archive the  yes you have the medical record but then the day after i file my brief somebody who is on this e mail chain says by the way we're curious why you want to know mr costers been dead for years so then i go to pacer and within sixty seconds i find out he's been deceased all this time substitutions proper i think it provisionally allowed it to go forward but the caption still remains tony coaster versus the apple lease so that's how we got where we are today well that's all very helpful mr probus i made a note here that the case is moot at lest the state prove pursues the claim and we looked into this and i thought perhaps i'm mistaken but i thought that some notice was filed or some substitution of party was filed in the record on behalf of the season is that not correct that is correct except there was no proof offered that mr jimmy or nelson is in fact the representative of mr coasters well that is assuming we can't have an evidentiary hearing on that right i mean that doesn't that need to be taken at face value unless there's some sort of hearing held on that on that particular claim that would need to be evidence taken wouldn't well that's why we're all we asked for was a copy of a notarized purse or to figure something because i have individual clients on the hook for bivins damages and the issue does go to standing so unless it's demonstrated and i would submit positively demonstrated that he is who he says he is there's no one was standing to pilot this thing you have to be relative to it wouldn't answer having to be know it just needs to be some proof that he's represented he was offered to me as mr coaster son so that's why i asked her birth certificate but any proof would would suffice though there isn't where was the representation made that he was son in a telephone no it's in it's in a pleading that was filed in this court last summer when we were hashing out the substitution issue so we have that objection and i can't i would waive it except i think it goes to standing so i can't and i have individual clients on the hook the other issue too is there's been no showing that mr nelson even if he is who he says he is is indigent for purposes of an one thousand nine hundred eighteen appointment that's in the rule so i understand the court could look the other way on that if it wants to but i just like that issue and the last thing is that the entire substitution is way on timely if mr white i'm in had done with this court asked him to do back in october of zero seven and look at the record he was found out within that sixty days that mr costard passed away and three in federal the civil procedure to a proper substitute that would have given so much eleven two thousand and eight now contrast that to the first time a substitute was proposed was july of zero nine and i submit to the court the only reason that happened was i found out that they didn't have a client if i hadn't found that out we would all be here living this appeal as though mr coaster were in this world and not the next so it's i submit that this is a very rowsley over link substitution and i'd ask the court in its discretion to deny a substitution assuming that the court does reach the merits however i propose that we can take this case apart into three roughly co equal bites coaster made in the district court against the eight defendants he made them and then apply the legal standard and we can see how this comes apart due to claims that he made one the main one was deliberate indifference in the form of failure to treat aggressively his hernia condition with surgery and the other claim sort of flows from the first one which is his thinking that had aggressive treatment in the form of surgery been performed sooner they would have discovered the cancer sooner and those claims  against for medical defendants and for non medical administrators at the prison now applying the legal standard the objective problem requires a showing of a serious medical need and this court in its monmouth county case hundred seven defined that among other ways as a need that has been diagnosed by a doctor now based on the object upon the loan the cancer is out of the case because there is no showing that these defendants are subjectively aware that he even has cancer so march two thousand and three mr coaster is sent out for surgery and the doctor who opens him up to repair his search his heart which he does have then discovers this rare cancer growing inside him so that aspect of it is out of the case the next essentially the doctors come in with a stack of case file that they need to discuss for more aggressive treatment than the prison can provide they sit down and they say ok we have this patient what do we think about the course of his progress and some consensus is reached so even if you as e as i would that let's give mr kushner the benefit of doubt and the doctor who saying or writing in the chart that particular day i'm going to recommend surgery assuming he believes that he goes to the hearing but then the other doctor there says no i  disagree i don't think it's i don't think it's time yet what you have at most is a disk and medical disagreement about the proper course of treatment in this court in white versus napoleon and dearmer has said certainly a medical disagreement doesn't arrive to rise to the level of indifference what do you make of opposing counsel so the emphasis on the statement well you can't have surgery until you're released i well first of all i would assume let's assume for the sake of argument that that was stated to him i think that was stated i'm sorry we have to write we have to the problem is that's inconsistent with what we know in the record which is that they did consider him for surgery multiple times and they did in fact go perform surgery on him before he was released so i mean it's and on top of that he subjectively did not believe he couldn't have surgery until his release because he cited all these cases where he claimed other inmates got surgeries so and you'll have ideas about how the case should be decided but then it could be you'd be talked out of those ideas by your colleagues and i think that's how the u r c works in these cases and it's after you have multiple sets of eyes looking at the patient's case file the contemplated surgery we don't know what was said but we know alternately they concluded to stay the course with conservative treatment and we also know looking at the twenty two month record i was able to count five times where mr coster had complained of pain and each of those times i could find areas where they treated it someway via manual production and i would submit manual production must have been performed because you don't know it's easy to reduce something unless you're actually reducing i would say more like if you go to your chiropractor and he says oh your shoulders dislocated that's easy to put back in i don't think he knows how easy it is until he tries nether implication is he goes really that's reduced i'm sorry all that but it was never reduced it may have been he's lead to civil but  the hernia can still reduce for a period of time and sometimes it can heal over that's why conservative treatment is attempted at all and it seems that in this case that gave them some relief because you he would you know not show up to sick all for months on end and then necessary but on the other hand nine him the treatment which they said was necessary why would that be enough for a jury to conclude that i'm different i don't think it would in this case your honor because it's one time you have one of the doctors recommending surgery and it on the second time you have the other doctor recommending surgery but you don't have them recommending that at the same time so i don't think you can draw the inference that at any point in time both the doctors look each other and i and said yes the surgery was required here but we're not going to give it away why couldn't they because of tha end they're talking about this in terms of recommending surgeries and b are p policy which was cited to mr coaster in the in his exhaustion papers is that surgery wasn't provided until for elective purposes on a hernia until it becomes you know conservatively these methods the treatment or the same types of conservative treatment chris cried to people on the outside of prisons every day for hernia as and given the sparsity of the number of complaints of pain and discomfort in the record u p until the very end when they went out for surgery there was no reason to think that they had the subjective knowledge required for deliberate indifference this isn't just negligence this is they actually have to know that he's suffering draw the inference and choose not to do i may i would just like to immediately respond to what was last seen by counsel which is the notion that there somehow not enough evidence in the record of complaints of pain and i think when you put what's in the medical record can you deal with the threshold issue first yes your honor with us with mr nelson standing and well i think be ultimately the state here has standing so i don't think there's a standing issue in this case the question really is whether there's an issue in other words whether they're someone who is ready to take this case fierce you stood up and city representing mr nelson yes is he the estate he is not the estate what's his relationship with the estate he is he is the son you see you've seen his birth certificate i have not your honor have you asked for i have not but opposing counsel represented that they made a request for an easily attainable proof that he's the son of you not what happened i was i was i filed him i did the due diligence on locating next of kin and locating his son i presented a motion to this court explain what i did and explain that you're nelson should be appointed as the representative the government opposed that motion and said they wanted to dish and approve it cetera and at that point the motions panel appointed you're nelson as the representative and so at that point i didn't feel that there was more that i needed to do he had been appointed as the representative going forward and obviously i'm willing to cooperate with opposing counsel with this court to  his brother and then his mother and then his niece who had been basically kind of working with mr coster on the case as i understand it over the years and they and they told you that that the decision had a son and using his name and phone number yes they're all that he would be the person who would inherit the estate there was no surviving spouse they were not he was not married mr us so if i could i think with the questioning that we were getting to towards the end about the utilization review committee really is at the heart of this case and what i'd like to push back on in terms of what the government has said is they've basically painted a picture to you that the utilization of you committee is kind of like the three of you getting back in kind of discussing things and hashing things back and forth that's not in the record all of this is entirely his say so in terms of his characterization of the utilization review committee the question is whether on summary judge whether we can get to a jury on this issue and i think if you put together the recommendations by the two doctors and you see that they're the only two doctors on the four person committee the other two are nurses or practitioners then you have it fully entitled to an inference at least we'll get to a jury on the question of whether the utilization review committee was truly a deliberative body exercising medical judgment or was instead a means of basically stalling and delaying the surgery and i think this is symptomatic of of the government's brief in a number of ways because i'd like to get to that they try to suggest that sort of reducible hernia is just a condition that has a category can't support a deliberate indifference claim it has to be a medical emergency that you're rushed to the hospital and they set a slew of unpublished cases to try to get you to take judicial notice of this fact i mean they could have presented evidence before the district  in the form of an expert declaration where they could have had dr beams say this is what it hernia means this is how you treat it notably dr means declaration says almost nothing it just recounts what's already in the medical record it doesn't explain why decisions were made or how medical judgment was exercised and i also submit that if you look carefully at the cases cited by the government you'll see that it's actually there are grounds where kit where cases can be found that a reducible hernia can support a deliberate indifference for reasons that i don't understand the prison staff just ignores the doctors prescriptions that could have happened here when you could have had doctors unequivocally telling the prison administrators this gentleman needs surgery and the president could have ignored it and that would seem to be your classic case of deliberate indifference right yes your honor absolutely and what makes your task tougher is you've got a rather of clinical medical record well it seems that you're putting your reliance perhaps a program lee so in this the sort of mystical utilization committee where we don't really know what went on we don't really know what was said is that is the crux of your argument that the structure of this utilization review committee mandates that summary judgment can't be granted because we can't really know is did we kisa what actually happened there well i think the that the idea is looking at the course of the whole course of conduct and looking at what happened in the you know as if you focus on the utilization of you comeon august of two thousand and two you have enough there to support the inference of deliberate indifference because you have the doctors recommending the surgery to the inmate and then denying it when they're kind of back meeting and in private and then you have to couple that with the other statements about how they wouldn't provide the surgery the refusal to talk to the administrative inquiries and the the suspicious circumstances under which they finally did  provide the surgery and then the background condition that he's in his can that his that the evidence clearly shows his condition is worsening and he's in extreme pain so i think when you put all those things together and you can really focus on that utilization review committee time severe pain and having all of these difficulties in daily functioning and i think it also supports the fact that his condition was progressively worse inning i mean when you have something where ultimately fifty percent of his have dominant cavity is discovered to be occupied by a tumor that that's pretty strong evidence that there's been a progressive growth in and worsening of his condition even if it's not the condition that they had anticipated in the first instance but i think where they're where the tumor really comes out in terms of the bivins claim is probably as damages proximately caused by the deliberate indifference with respect to the hernia there is the on the f t c a claim that's really negligence in failing to diagnose the cancer and that that claim should also be brought and i we haven't had a chance to address it thus far but at the argument that essentially the district court should have permitted him to amend his complaint to bring an f action and the district court did not permit him to do so and in part part of the reason i think is that the district court didn't have before it the evidence that in fact he had exhausted his f t c a claim and that it's there was a reason for the rule he was the exhaustion and but in fact i mean that what the curious thing is that the that mr koster moved to amend in june of two thousand and four in may on may tenth two thousand and four the bureau of prisons regional council and on top of that they resubmit the same declaration in january of two thousand and five by which time it should have been self evident to both the attorneys and to the district court that there's only six months in which the bureau of prisons is supposed to have to rule on this they should have known that by that point to determination one where the other would have been made and so and i think if the government says this is you know sort of some kind of judicial advocacy that's contemplated but i don't think if it had the facts before it and that it's one that's really compelled by that this court's direction that the pleadings of pro se plaintiffs should be should be liberally construed in that the law should be applied even if the even if the