thank you this case presents a series of eight the many claims that were raised in two complaints in the original complaint raising conditions of confining claims based on the repeated sow the cherry confinement of brain plaque adik despite his having but potentially would be more than that there were claims against officers cushion to stall same greed and they were as i recall bomb terribly dismissed is that right correct amended complaint supersedes your compare regional complaint and therefore leave you without an opportunity to preserve that while the amended complaint was the operative complaint in the district court below we could not appeal judge g even though you don't know the answer on it and there's precedent from this circuit that supports that i would like to but supports what notion that from it appeals from a final judgment draws in question our prior non final orders and rulings that is to drink water vs union carbide nine zero four f two d eight five three and it is quoted from the case open borders incorporated versus chrysler corporation but i think that we judge jordan's  the original complaint and that is because it was our efforts to comply with the court's ruling as to what standard applied that permitted us to bring vulnerability to suicide claims in an amended complaint that precluded consideration of the other on a on a factual basis you had played enough with the saying we just can't make this claim and making our legal statement you've got the you can't make this kind of claim for some legal reason you have an understanding of that i believe that the problem was in the first instance it was legal in that he objected elements that must be adequately played for of on ability to suicide claim is that the plaintiff in this case the deceit and had  own ability to suicide it showed a strong likelihood that it's reasonable measures were taking self harm but a tent itself harm would occur under the conditions of confinement claim the standard is different you look at whether or not a condition or series of conditions acting together deprives an individual of basic human needs so i do think there's a legal problem but to the extent that the court said that the facts were insufficient to make out that claim i would simply disagree that those facts are insufficient  mind is you think it's in front of us and we can run with those right correct ok that but so it probably would be helpful for you to take this through both of the complaints i realize that all of this is well were in the briefing and we have two opinions from judge gibson but let's start with a recognition of the principle we all acknowledge and that is the plaintiff is master of his complaint now you choose to set forth to cleans here initially in the original complaint neither lose complete neither of those claims being vulnerability to suicide am i correct that shows to pursue the claims that way because the bomber ability the suicide cases been out there for a while albeit only pursued to t he fourteenth amendment pretrial detainee cases yes that would have been too that was a deliberate choice and the reason we sued the conditions of confinement claim was because we felt that the line of cases that focus on conditions of confinement and whether or not they pose a substantial risk of serious harm to the plane to the ceded to somebody such as mr black and it's taken into account his psychological vulnerabilities in this case we thought was a that area really are a subset of deliberate indifference cases are they are they not i would say this subset more specifically is as still the gamble medical care  be your position that especially in view of the way you play these cases initially that the vulnerability to suicide cleans have i don't want to use the word some kind of heightened burden to them but some additional showing required that is not required where you're simply trying to show it with medical slash's psychiatric care were general prison conditions cases yes i believe that there is a showing under the vulnerabilities suicide cases that has its own set of elements and the language that judge hips in own down on and that the adversary's did was that something about if there's some medical care extended things are ok and of course they say we need to get some medical care how how do you respond to that how do we get around that process that president is it's a truism that inadequate inadequacy or impropriety admit it medical care is insufficient for showing deliberate indifference but that's not the end of the the question some medical care does not mean that that care was constitutionally adequate the question is whether the defendants provided knowingly inferior care or whether the care was provided so that a substantial risk of serious harm was still present ted is it your position the judge  deliberate indifference yes that is our position of believe that's what he did let me ask you also if if it is you were reading of judge gibson's opinion with respect to the yes we believe i believe that is our position that that is what judge gibson held because he said that the vulnerability to suicide standard must be applied because of the ultimate harm and the ultimate harm from a constitutional violation is not itself an element of that constitutional violation and we think that's where the legal error was in holding that that must be the standard that applies in this case in my correct that there really would be no difference in terms of the showing that would need to be made in placing it plus anything else you could that would be within bounds to add or would you abandon that rather not take that theory we would like to proceed on all of the claims from both of the original complaints and those from him in the complaint that  been challenged and we think only have to discovery will it be sorted out as to whether or not all of them apply or whether at some point had more appropriately another housekeeping question as between the original complaint of the many complain please the court my name is howard hopkirk i am a senior deputy attorney general with the pennsylvania office of attorney general i represent john what's all the secretary of the pennsylvania department of corrections and othe are private health care providers she will be using five minutes of our time we just got a great in and have you explain to us how a circumstance where we've got in the record an independent evaluation from the united states department of justice which is to put it mildly very very clear the record in a case where somebody who's been evaluated by a good part of corrections itself on multiple occasions as being a risk of suicide should be able to make a claim for vulnerability to suicide and if this if this case can't make it to discovery is there any case that can make it to discovery your honor i think this is a timing question and what i would tell you is that when this report came out that was actually after sure sure the buzz so that's a that's a kind of a so what right i mean the fact that the independent valuation happens after doesn't change the fact that before and the complaint is a whole series of allegations as to which the department of justice evaluation is merely but this was a guy with serious mental health problems that the party questions knew he had serious health problems he told them i got serious no i'll problems his nickname in prison was suicide and yet and yet they put him in solitary confinement and three days later he saw himself i mean how i repeat if this case doesn't get you past motion to dismiss is there any set of facts that will be does it have to be a court in our vulnerability to suicide cases were any similar case factually that was disposed of at the motion to dismiss stage as opposed to s question but if you're talking about individual liability and not just making do you see officials strictly riaa bill for for suicide that happened on the r h not that that's not the question what's the deficiency in that complaint that points to individual responsibility given some of the edition of conditions that judge jordan's question this is a state prison case and about thirty years ago i was a state court judge who sentenced people like mr pollock overture a plaque of rich to state prisons and the  kooris wise as it was here this apparently has not changed you sensed someone and it was first directed to the diagnostic and classification center at camp pennsylvania which is where this gentleman went and the who purpose of that ultimately is determine where that prisoner will be a son but in the course of that determination interviews or gun valuations are done information's taken certainly information concerning the fact that deceit had mental illness problems problems with this family and even suicide attempts must have been revealed of course we don't know that specificity because we've never gotten  had a particular verbal you say what's next that's alleged with specificity isn't it well it's generally alleged but i think but it's generally alleged i mean i don't think at former ability could suicide at that point were i mean obviously anyone in that condition has some vulnerability to suicide but it and what you're going to need to move ahead anybody who has mental suicidal thoughts and been listed approximately i mean now maybe maybe it's ok i think state wants to take the position of the commonwealth is going to come in and say it's true that the records came the question all those things came with him but you know n it's true that the even the intermediate evaluation showed a multitude of serious no health i hope issues but on the night of the decision to put him in the r h you there wasn't an evaluation so there can't be a showing of suicide risk if that's the commonwealth's position then i guess we all wish you that straight up otherwise i'm not sure why that's the ground you're fighting on i thought you were fighting on the deliberate indifference ground but if you're fighting on that this complaint doesn't show risk of suicide ground that's the second i was just trying to maybe this is not a proof the likes of size was trying to find out exactly where the fight is right i thought going into that set of questions that everybody was going to be able to agree that yeah brandon maybe half of the population is tag that way but it seems highly doubtful but she was right this isn't this is from i mean it doesn't help you say this is just sort of generalized complaining this was a very specific set go on to discuss or allege the nature of solitary confinement can read the complaint to suggest that there is a heightened solitary and some of what the data shows about it if we were sure there would seem to be even a stronger case than being made for this particular defendant then placed in solitary to be perhaps you can solve for me the great mystery of what is no record of this case other than the bare allegations of an amended complaint and a predecessor original complaint that with the night before he committed suicide any time within the weeks or months prior to that all month all of the allegations are general about mr polacca vic's really is or is it general to say he was evaluated this cia camp hill he was a rating for for what was possible for the worse possible when you can have a mental stability he was a suicide risk that's not the precise darn specific he was really value rated after that initial evaluation and it was confirmed that he had those problems and that he in fact had other serious problems and was accessed from diagnosis as unstable person right he was a subsequent us here it unless you're diagnosed or evaluated the day before you try to kill yourself all bets are off the medical personnel who are responsible have no responsibility because it just wasn't soon enough that a fact question is that a fact question for a fact finder to say you know what they were in good enough notice they knew this within a period of x months and we don't know what was judgement this pointed out the record isn't developed all we've got is a complaint but isn't there enough in that complaint to tee up the idea that there might be in the records of the provider anough to show that yeah bay knew he had ongoing mill health problems right up until a few weeks or days before this happened that question i think is directed towards whether or not the defendant in you really taking the position that there's just not enough in the complaint to show that this war was a suicide i am taking the position that there's not enough in the complaint related to the time prior to and that tightening but tightening that's really got to be a factual issue right i mean they've they've alleged he had these problems and you knew about it and they were waged he continued to have these problems now you're saying  we did not i guess your argument is that it's a legal matter there has to be some corroborating proof in the complaint but he was having these problems within what you assert is a quote reasonable time i quote your honor is that there are not enough facts to show that this individual had a particular vulnerability to suicide around the time of his suicide certainly he attempted suicide in august of two thousand time which is was saying a tick killer set of conditions we're not saying that we're not saying that this broad brush people who have mental health issues are necessarily suffer of vulnerability that the president should officials  inmate attempted suicide in two thousand and almost two years prior to the time of his death that he had a history of depression that he had mental illness that was diagnosed and recognized by the department of corrections upon his incarceration in two thousand and eleven a year time goes by and there's no specificity with the complaints that he made the problems he was experiencing at that time so in addition to fail him to read enough facts to show this is in the heart of particular vulnerability there's no facts that the defendants in this case were aware of them at any time during this incarceration is suggestible assertion that these individuals had access to his medical records that he attempted to commit suicide had an interaction with him on so and with respect to judgments and that at round was in his opinion with respect to your original complaint that he chose to plead the matter is you neal's arguments and that is in effect even if one except that there's enough in the amended complaint to indicate that he had a particular vulnerability suicide conditions are bad wa you know a year or two earlier that's just like can't be enough to deal with the problem that developed when it developed and you didn't put a finger complaint that would indicate a problem there there's a deficiency there can you really having your either in your legal kid or in your amended complaint as factual allegations that would make that argument that this is just a lack of it's condition of being vulnerable to suicide of suicide of the haitian etc it was an ongoing condition that was present throughout his entire time while he was in the department of corrections and  yes i mean just by looking at the totality of the factual allegations that he had the severe psychiatric diagnosis several of the nexus one diagnosis that were linked to suicidality but he had a history of suicide attempts which is part of the analysis of original complaint that the mental health care was deficient that he was not getting the one on one counseling and that the encounters he had were infrequent and they were not in clinically appropriate settings so if the defen understand your causes of action to be seeking among other things damages for the death of mr parker right correct