question is whether there are disputed issues of material fact the record construed in the light most favorable to mr swartz shows that he waited over a year to obtain an ablation procedure that the records indicate was medically necessary to treat his symptoms during that delay mr swartz suffered unnecessarily from worsening and recurrent symptoms associated with his thigh which issues in addition for nearly a year mr schwartz was denied to present his claims to a jury may evaluate the credibility of his testimony and the weight of the evidence i'd like to focus the balance of my time on the summary judgment issues discussed the dismissed dependence of time permits summary judgment here was inappropriate it seemed to me that the facts just speaking for myself that the facts regarding i missed the time are very strongly in your client's favor but i had some difficulty understanding your best argument as to why longfellow wasn't merely negligent rather than meeting the higher standard the best argument  responsible for ensuring that these procedures are carried out in a timely fashion is providing constitutionally deficient care to a patient and fails to take action that is sufficient to even know that this is an unusual  in terms of how the outside world operates i mean i have you know we all have enough experience with medical care to know that even when serious things are happening it takes time to get things done certainly your honor and we're we're not asking this court for example to draw a bright that says four months to a longer or one week is too long but we do think that this case in particular fits comfortably in this sort of i'm not sure how comfortable i am so going back to you know we have you know when your comment about what the law is supervisor liability we also have more recently with a month decision and with a very different result and you said you know the key is whether the supervisor knows right at the other coworker or the subordinate coworker is for lack of a least by then that dr longfellow knows that there's been by that point not just a month and a half the way from when he approved it but two and a half months away from when it was originally deemed by dr ash to be medically necessary right sure she requested in april dr longfellow doesn't approve it for another month and then a month and a half later is requested so we know for certain at this stage that he's aware that there is a two and a half it's often the case a scientist and that this delay and it would have solved in any better or worse from anything that we've been told haven't been for months earlier so the promise to for much that's correct your honor and what the record shows with respect to that four month the gap is not just that mr swartz's symptoms with respect  condition is affecting your entire body it's affecting your cardiovascular system this is an important procedure and we know that the any and you know it's in the record worsening hyperthyroidism so it's not just that the symptoms are continuing during this delay it's that they're one of the things that was just speaking for myself was really striking to me from this record unlike other at the moment kinds of cases that we see are this person recede a lot of care yes mr schwartz did receive care and his deposition and his complaint  he explains that he is not alleging that there was a complete lack of care in this letter strongest argument and for dealing with the what's your very strongest argument the very strongest argument is the four month delay that we know we know that the record shows that there is not disagreement all the way if you would back to that question yes you think that that delay cross your client harm and maybe even continuing worsening of his condition and that that's that is dr longfellow was deliberately indifferent to that because with is whether his physical condition during that period was sufficient term it's wasn't paying exactly right pain is one thing this wasn't pain  what did this it's tell reach the threshold by itself i e isolated from before and after and everything else of a medical condition that include stroke like symptoms they include wasa control about movement which it happened three times it happened i think at least twice that we pointed to in the record in that time unless there was shaky we know that he also had tack a cardio which is fellow was aware that these issues were related to hyperthyroidism and in that report that comes from an outside specialist it documents at least some of this and times that mr schwartz was suffering up until that time we also know from th else in this thing and this case i think it would be can you pronounce her name to todd to talk to todd was providing constitutionally inadequate care but what you just mentioned and for these symptoms you indicated that they though these are symptoms that she had recorded relying on circumstantial evidence and that's a fact but what the circumstantial evidence here is a long felt of a sitting up here he is a him and he is told that this person is hyperthyroidism and then it's been his doctors are suggesting that he have an obligation he says ok but what does that prove about what he knew about his day to day functioning that during the relevant time period again if we're looking back at the january hyperthyroid report itself contains recitation which again this is an outside specialist that we're talking about it itself contains evidence about mr swartz as symptoms by by the time he goes to the outside specialist in january twenty three he's already had two very violent me that is that we are one dollar to seven dollars to judge christians question about mr todd if i may i think it's important to while these issues are related they're really are distinct in some ways and i or we don't know much about this or the paper trail it we're not and we're not saying that dr longfellow was responsible at that moment in time precisely for the reason you pointed out we know that there were tests run but what we do know is that mr schwartz was continuing to suffer from these stroke like symptoms he was continuing to present himself to mr todd a sick call and she was simply refusing to not just see him but even record the fact of his visit and he kept saying watch the call out does that mean he's already on a waiting list to see a care provider i don't know what that means that that is the suggestion made by that statement we don't know if that's actually the case what eventually happened was mr schwarz himself filed a request yes with the person say i need to be seen and they said you're dog but also the particular timeframe in which these issues were rising and why this all matters is because we know that mr schwartz was not seen by a physician at all until november th the complaint doesn't tell me when he alleges she took him off the list but it's the record about that i don't think we have a clear record on the taking off the list but i don't think that that is a fact that this court needs to sort out in order to rule in our favor i think the fact that he's presenting some terms and you know when  dr atkins finally sees him on november th she has an incomplete record of this patient's serious medical issues and you know we can't say it's we don't know what would have happened if dr atkins knew at this time dr bombshell gets it but do we know he looked at it we know he should have looked at it we don't know whether he looked at it but i think if a good if were if were working under the law a framework of what inferences can a jury draw i think if the jury could infer that if been given leave to amend have you told us anywhere what an amendment might look like that would matter i think what we point to in our brief is the evidence that's been developed in the course of discovery here so we have now not just allegations but we have evidence of these specific instances we have emails for example between mr schwartz and the warden telling him i'm not getting treated not being seen by doctors my symptoms are getting worse we have deposition test recounting those same interactions we have medical records that show his course of treatment as between dr atkins and dr so there's plenty of trash cans dr ash and some way seem like the heroin is here now well i mean obviously there's go asking about how the amendments would happen it was also a dismissal without prejudice so it's a question on that front in any event the critical issue for defendants in this case is that this is not a medical malpracti case it is an amendment case and that's dealing with cruel and unusual punishment and the question here is whether either of these defendants have made a conscious disregard of the substantial different matter but it seems to me quite significant for their allegations that she charged him the way that she failed to record again of coming and that she failed to record his experiences so at least with respect to her why isn't that a potential i am from and my client the biggest issue with mr tutt your honor problem he had a serious problem but there's no what it was evidence that it was a fire storm and he's put no record of this in there but regardless in september he goes to see a nurse they take a check his what sugar indicating they think maybe a typo i see mia issue which is something that he had previously suffered for the next two months he sees mr todd and similarly she says you know  real defined issues as she's tricking him out on his that i'll give you that that's the st month and then she orders some laps right right then right so then it starts to get dicey so that if you could focus on that i don't know what those labs when or if there was any follow up he he says he kept nobody defines call is that a list of where the guards are going to take you out of your cell and take you to some place if there's actually a list posted i think and in the mornings where to say that you have an appointment  he never did get an appointment in chile is specifically the main main complaint about not getting it right he never did get an appointment as a result of whatever she was doing instead and in mid november he made a request to the staff complaining about serious medical issues no follow up and symptoms and then when you place your schedule sort of but not as a result of her doing that well your honor there's no evidence that he wasn't on the be medical labs that she requested in october or indicated that they are to be reviewed by dr atkins ok so what i'm asking is a different question it's a it's important for visa need question during this period of time where he says he's coming back and she's saying watch  out watch the call outs and i think i get that that's a list that he's going to be called out if he has an appointment my question is did she have the ability to make an appointment for him to put him in line or is there some others you know indeed some other care provider who's going to about if in fact we have to take this is true right now he says twice a week between october and december i went to sick call none of this was recorded i was  she ordered labs when she saw him in at the end of november and then reviewed them in early december so there's no indication that she ever did see those earlier and i thought the notes did  and i agree it is unclear at what point she sees that there is an indication in the december notes that talking about urine and even in those october lab tests mr todd notes that he has other having the ability to make an appointment for him and saying watch the cala my understanding is that mr tucker signed him to watch the call outs as soon that's what was occurring because he had scheduled appointment coming up and from her right and i'm just going to get some going to end with this is important to me would that have been because to todd scheduled appointment for him or because dr atkins perhaps is the one who seems to be scheduling and doesn't feel the need to see him is that your position i'm trying to figure what your position is i'm not aware of whether mr todd or dr atkins saw those october lab results ok and that's part of the issue of deliberate indifference there isn't an indication that she saw this and she knew and she deliberately didn't schedule him didn't have him set up with a physician it's that she saw him in october and she sees a pretty records it's not in america and he keeps coming back and he says that she didn't write down all of his subsequent complaints and the and his allegation today is right that that made him it may have made a difference to dr atkins for example if she realized that he kept at most that's a one month delay in time where a plaintiff can well during that time having to show that he's during that time to see evidence symptoms that include losing control of his bowels or having the stroke likes symptoms that you know fibroids storms isn't that happening during this time he alleges that there was an instant when he sees mr todd in october where one time he wasn't able to use the visitors restroom and he lost control  but during this time he's not he's not suffering any pain by his own admission multiple times across this and even in his deposition he says you know we weren't really sure what they were dealing with when he was talking with dr atkins at the end of november rather than this being there was a deliberate choice where she knew about it plan to focus on this sort of objective lee serious symptoms well under the th amendment and not only has to be objectively serious but she actually has to make that inference that there's a what it's meant to parry is and she was telling him to drink more water and to exercise well drinking more water is actually a pretty vitally important thing if you have when was that i understand that to be from january to march which i mean i'm sure know we had problems right and that and he's coming and he says frequently and you say she's not recording it again and she's telling him to drink water and to exercise when in fact he is there are strong indications by then that he does have kidney problems and he does have thyroid problems right and during that time in that january through march period he's seen eighteen different times by medical providers so if there are times that he's alleging that he's coming in and they're not very far off from when he is actually having appointments and being busy in fact he saw a lot of carrots and usually in that way it's also unusual because some of the time he says he's not in pain but there's also these entries that indicate and we're not medical experts and that's going to be a whole nother issue whether he's going to be a medical expert for sure but some of the entries are very  over a fairly long time in may two thousand and twelve when he wasn't having any complaints wasn't having any issues he weighed about one hundred and fifty five pounds and then he lost about fifty pounds tre indicates that he she threatened to take him off the list but didn't actually provide any evidence of when that was or if it actually happened and even that he physicians eighteen times he said it happened and he said he saw her do it ok so that's his evidence known and maybe be disproven but it's percipient evidence is there a discrepancy between the complaint and his declarations that you're telling me there is a discrepancy and i believe when he actually got down to his declaration and his deposition testimony it was clarified that she had threatened to do so but there is no indication that that he actually would have removed her and especially given that during this time period he's been seen over and over and over again it's hard to say even if you believe him from the sick call not any harm would have consistent with what the e k g and so on because his his testimony says episodic methods every minute but in that when they are faced with someone who's coming in and they're saying he's having these issues ologist as being solely due to his kidney stones which is something that even that you're all in just just said he these are kidney stones let's make sure he doesn't have any other condition and which he didn't that he material was due to his not instructing kidney stones which have to pass as they go house on s c r eleven which is your motion for summary judgment it says according to him she removed his name from casa call to doesn't mean you have to be able to show that there's even though you said he's alleging it i was your position there's no genuine issue of material fact wolf because he doesn't actually have evidence that she did so as the district court pointed out but approach dr atkins or see the doctor ash at an open house and say nothing is being done to treat me and that is when dr ash looks at the record and says ok we need to get this patient in ablation for his serious die with problems and problem with mr toci is the gatekeeper she is the avenue through which mr schwartz has access to medical care and what this court said in the hunt case is that if a if the patient doesn't have the ability to report symptoms that itself is great things for patients to do but there are no treatment for a serious and recurrent thyroid problem and i would just as this court if the counsel present giving you a lot of time can you give me in one sentence what your strongest case against dr long  knew what he knew that mr schwarz had serious and recurrent problems associated with this tirade and he knew that the only treatment appropriate for the symptoms was the ablation he knew both of those and he didn't do what's the  order something he didn't he did not take action to ensure for issues that he was aware of that is supported it's time we carried out the ablation procedure and there were insurance instances in which she disapproved  treatment but you're concentrating on that yes there is also the denial of treatment with dr chavez which i'm happy to talk about i know well over time that the best case is the april to september but i think it entirely independent