case with respect to deliver to indifference this circuit has held that it is an extremely high burden of proof and that's important when looking at the facts of this case and that burden is placed on the plaintiff in this case with respect to deliberate indifference there has to be the knowledge and it's subjective knowledge of the individual official that there is a risk of substantial harm and then that official has to disregard that risk in order for there to be a finding of deliberate indifference and so this court need only look at the conduct of the nurses in this case to make a determination as to whether there was a disregard for a risk of substantial injury in this a substantial harm in the case and the court in this visit in numerous cases has delineated what is how do you disregard a known risk and the court has looked at you need to refuse treatment you need to ignore complaints or you need to intentionally mistreat the patients so those are the three things that this court would be looking at for a determination are those factors present in this case didn't the district court say that both nurses acknowledged the nor the complaints that were written down they didn't read the complaint i think that that's one of the decor it said that but if you look at actually what occurred in this case there is a form that filled out by the inmate itself that says nature of complaints but that form is always done the day prior to the nurses seeing the individual patients so what the nurses testified to is when they see the patients those complaints often change so they use the health care practitioner and patient relationship to determine that day what are those complaints and so if you look through the record in this matter you'll see so for a book take nurse robin reshut for example she gets a intake form from the the from  inmate which says that i'm having i need ibuprofen i have back pain can you fill it a set she receives that the next day and he is in court that day which is why she doesn't see them but nevertheless she still fills the ibuprofen which  requested so clearly she's reviewed that complaint and she's treated so the very fact that she feels that shows that this cannot be delivered difference and serve a case that stands for if you give any treatment there can't be deliberative it's your view that more below i do and if you look at i can tell you that it's not it doesn't say it in those terms but if you look at the precedents in this circuit the facts delineate such meaning that all the courts are looking at is if you're going forward and you're actually providing treatment the decision of whether that treatment is appropriate or wrong is what this court has said that's the optimal standard of care and cannot be delivered in difference so i what i'm presenting to you is that the record even if it's a horribly misguided response medically as long as they give it you're not in a world of wanton disregard the wreck because the plaintiff would have what's the best case for that the opportunity to go bare decision versus caldwell is a case which involved a leg injury where the court found there that the doctor actually knew of the substantial risk and did didn't disregard it because there was no purposeful neglect and that's what i think that this court needs to look at is did the nurses do anything for them to meet that high high burden of egregious intentional where did the district court in your mind go wrong i think they went wrong your honor to be honest with you i think that the court looked at the unfortunate and admitted the tragic end result and applied what would be a negligence standard using hindsight to get the diagnosis of diverticulitis in the mind and mens rea of these nurses which is undisputed they did not have so if you look at the substantial risk of harm here that pain is not something that a nurse is going to believe is going to result in the death of an individual also constipation is not going to do that there was a reference though to toxicity there was a reference to toxicity and again that was a complaint that was addressed by the nurse if you look at the record evidence in here that toxic it was in the complaint but the nurse actually wrote that in on the document itself which indicates that she had that patient discourse with  with the patient so that was addressed by her providing that this would all which was the laxative for the individual and allowing him to follow appointment at a later time with the nurse practitioner so they may argue that that was not good enough that she missed the signs and symptoms but those south and in medical negligence and not and deliberate indifference moreover that was just one isolated incident with robbery charge it's not as if that was the last conduct that a health care provider had with this patient the next day michelle gaudin saw the patient and again received a report that he was vomiting that he had constipation it's important for this court to know if you're looking at the substantial degree of harm that prisoners often times as was testified to it's one of the most common  prisoners typically very starchy foods and they're not moving around there with relatively immobile so it's not something that's going to in a prison rise to the level of believe believing that it's going to be honest and substantial risk of death at a later and are throwing up that's the tip off something bad is going on it's possible and and i think that the nurse in here testified in her deposition that once he threw up he had indicated it was her believe that that throat was due to the taste of the magnesium site rate that she had administered to him so again what we've got is we've got an individual that is responding to the complaints whether that they don't like the response that's negligence but we have somebody here that complained of constipation and she went to the nurse practitioner to get an order for a stronger lax this individual that shows due diligence that shows a course of conduct that cannot be deliberate indifference i think with the trial court did here is that they looked at the end result and said if this patient this patient obviously was much worse off but at the time that the president to my health care providers at the hospital for the at the clinic for the physical presentation those symptoms were not there and it's important to note that the individual had a bowel movement and that's very very important in this case because it shows that the complaints of constipation had not risen to the level where there was an obstruction where a nurse would be in a position to believe that substantial risk of harm could happen he had come back he had a bowel movement she said go ahead and take the man newseum site rate over the weekend anyway take it now and it will be available to you over the again that was the last time that my nurses had the opportunity pursuant to protocol to treat this particular patient while on the facility the next interaction that they had and again robin restart is now out of picture and i would submit to you that there is zero evidence that her prescribing of the big disk adult to the individual can constitute deliberate indifference she is the court i think just was was wrong on that and it doesn't live rise to the heightened level the next day there's a phone call that's placed to michelle gaudin and there is a discrepancy here in regards to whether she received that phone call and when there she returned it back but i would submit to this court that that that that's not material to this case because if you look at the testimony you take even what they say is true that when michele she did return the call back and she says she doesn't remember talking about this particular patient that the patient had been addressed by another nurse we know that that other nurse testified that she in fact said continue to monitor if it gets worse call me that's exactly what happened the with the district court had done here is is they said well there's other things that should have been done in this case they should have been monitoring that that she should have ordered that the officers monitor them while in fact that's not a material  issue of fact here because in fact the patient was monitored we know he was monitored because all of the officers had testified that the individual was placed in a segregated room and he was he was watched and then obviously he was monitored because the nurses then were contacted for determination as to what to do it's also important for this court to know that under the protocols of the hospital out of the prison that the officers themselves are vested with the authority at any point in time to send the individual that they believe that they are in need of a emergent immediate medical assistance to a hospital they could have done that you've got the testimony of lieutenant choi meyer that in fact said if you could not have gotten in touch with the off with one of the nurses on sunday he would have gone ahead and said the patient there anyway so we've got the nurses who or do not have a duty to the patient once they leave that individual facility but as a courtesy they didn't go to the hospital before the final fatal visit in fact he had which goes to sort of the motivation in this is that he had been to the hospital by prison staff including the nurses in this case for glucose for very high glucose levels so if you look at the context of this lawsuit and why would there why would these nurses ignore the symptoms why would they refuse to treat them the facts just don't he had been sent to the provost medical emergency center twice prior point twice for for high glucose levels and then we have obviously this was an acute injury that had gotten much worse over the weekend when my mother where my practitioners didn't have the ability to see the patient it's important to know that i think the only way in which a district court in this appellate court could reach the level of deliberate indifference would be to a finding that minor said do not not over him if that were the case maybe or do not send him to the hospital or do not give him the biscuit all or do not some affirmative action where they get to the level of say of rising to that egregious conduct here we have monitor him by one of the nurses we have continued the medication of giving trade that was in order that was continued prescribed and we've got if he gets worse call us back all of those are issues that can sound a negligence they can bring in their experts at trial and say she should have done this she should've contacted t dry if you look at and it was very hard pressed to find and i can't think of one off the top of my head where this court has looked at medical practitioners in a scenario like this and actually found deliberate indifference the cases that have come out there was one in july bronner versus  was another paraplegic inmate that sued over to cuba is also and in that case that this court reversed the decision and there again finding that that burden is heightened it has to be a culpable conduct which rises to the level of a purposeful had acute peritonitis when is about was obstructed which could not have been the case on friday when my nurse had the last opportunity to see him because he had reported that he had the bowel movement so clearly he had got wrong he had done he had gotten worse and also if you look at this in terms of the diverticulitis when the warden had called the next of kin to inform them of the death of the patient that the sister had said well the diverticulitis must to finally got him and everybody was surprised because we had never known that if you look  at the record and it's in this case as well even when he was sent to the emergency room he never reported that in a sister indicated that he didn't report that because he did not want to have surgery because he did not want to have a scar and so that information the record that is in the record and it was never relayed to due to diverticulitis clearly this patient had a previous bout of in issue with diverticulitis that was never reported to us and so it's our submission that if you look at the mens rea of which this court has to place themselves in because the supreme court in the farmer decision has been cited by goldberg and the progeny after that says that you have to look not only at the the facts that draw the inference but that the individual did in fact draw that inference and here we do not have our nurse thinking that his back complains which is a very common given the betting that the inmates are on could cause the death of this patient with substantial harm additionally constipation when you then have a bowel movement and you're giving a laxative does not make you believe that this individual is going to progress to the point where they're going to need emergent medical help and again the officers are in the facility with him over the weekend to make that decision as to whether he needs to be transported and then even more indicative as we get to the end of the end of the treatment of i'm sorry the end of the case on on sunday february twenty fourth it's dispositive that when they in fact call my nurse go down again and say he's not doing well he's got no pride pressure she doesn't say i don't care about him refuse treatment don't do anything what is she telling she says take him to the hospital so that shows that there again that there is not a refusal there is not annoying as soon as his vitals look bad take him to the hospital that's the first time t vitals were the first time that the vitals were reported to the level that the nurse felt that he needed to go to the hospital he says you know you've you've covered you you have command of this area and it's a seamless sort of presentation but what we are seeing like in the hanssen case which you stressed in the reply brief these institutional situations where we have officers and nurses only and nurses by phone and then negligence or gross negligence occurs because diagnoses can't be made but your answer would be but it's a c focus there's got to be intentionality purposeful in those institutional vulnerabilities there isn't deliberate indifference erect because they don't have that mens rea of intending intending to do it a failure to diagnose is a classic scenario of negligence and medical malpractise i think that even that is stuart decision which is one that was recently cited in july there you had an individual that was very ill the doctor even testified that i thought he would that he might die and he didn't transfer the patient to the facility but even then the court said this court said that that sounds in negligence and doesn't rise to that level because they didn't believe that he didn't transfer him on purpose in order cause harm to the middle and i think it's that intent there that is missing in this case both from the testimony as well as the record evidence that's within the medical records in this case and for those reasons i'd like to reserve the remainder of my time that they also to they they say that the plaintiff focuses on a very unfortunate end but they disregard what happens from the eight hundred to the twenty four so let me let me suggest this to the court on february eighteenth ok and these facts are relevant to the organs of february eighteenth when mr saul make a completes a form which is the process to receive medical treatment is a part of that form that you can identify for them the health care provider or the nature in whether it's an emergency condition or not on the eighteenth he notes to them emergency condition rather than just i need an aspirin or the fever emergency condition when i question nurse resort about that i said let me ask you in the course of your time with this particular individual was he a whiner in other words was he someone that you would take that complaint seriously and she said he was not a whiner and that yes they were put on notice on the a team that this man was cleaning his pain was so severe it was an emergency condition and he was seeking treatment at the hospital with a physician you heard mr watson the process is he doesn't even get treatment till the nineteenth he doesn't see anybody till the one nine hundred because that's the process but nurse reshot had notice of that only eighteen and and the reason i bring that up is because remember they're focusing on the in the case law  standard says that any deliberate indifference that makes the inmate suffer pain under the criteria is a violation of constitute deliberate indifference a violation of the eighth amendment so what i would ask the court to also keep in mind is that if and of course almost to me this argument oh if the court were to say ok well they didn't really know at the end of the day that he would die but they didn't know that he would could suffer substantial on the pain that occurred throughout from the eight to the twenty four if that makes sense organ there would increment of deliberate indifference absolutely your own i'm arguing that the evidence suggests that on the eighteenth he reports i've got a condition that requires emergency treatment i'm in that time nurse resort is unable she says she's own able to see him at the time of his appointment because he is in court ok she says oh well he returns i don't know why he didn't come back when he was b cell sometime later in that evening on the following day that so he doesn't receive she prescribe ibuprofen which is mr watson said was indicative that at least she she she's acknowledging that she's getting some forms of complaint that he's in  on the twentieth he follows a nother requests for treatment and he again doesn't get medical treatment he's not seen he's not exam there's no treatment provided so as you know as you asked oh yeah there's a commit so even if you don't see th records too is that the initial complete comes on the eighteen but the complaints that he's telling them about saying this is been going on in other words prior to the eighteenth he started experiencing problems he didn't go ront whine and moan and complain and say oh move hurry up and get me when he got to a point where he was in such a dripping on the eighteenth you saying i'm hurting i need a doctor but he doesn't seem out on the on the one thousand he doesn't see anybody to give him some ibuprofen on the twentieth he doesn't seem odd is there anything in the record inconsistent with the view that they would think he's in severe pain cuz of constipation so they just make a mistake gnosis is there anything in the record suggesting what your arms are to jesting that these nurses didn't think throughout that it was constipation thinking that it was something other than that or anything to say that they i mean it could have been a tragic missed diagnosis but this is i guess  factual question a legal question let me make the legal question first then do you know of any case where a court found deliberate indifference when the patient didn't acknowledge the condition that is found to be the cause of death they point out they said in that case he advised them that he had a pulmonary disorder and then he needed treatment ok in this particular case and i'd like to point something off of court because it's also in the record even though it was ongoing problem with diverticulitis so in other words it's misleading to suggest if you're diagnosed with diverticulitis or if you have some bought with diverticulitis years in the past and it's not actively you had any problem that that you you were experiencing  or when you were of course rated you had diverticulitis and you failed to tell them ok that's number one number two is when they say about all the other conditions he reports i went through with the nurses the intake form so the reason they get all of that other information is because the intake form it consists of a bunch of boxes yeah hort disease if you had this have you had that and he fills out the boxes accordingly based the point his history fortunately the boxes don't say have you had an abdominal disorder have you had you don't say that so it's not equate it's in of course under these circumstances we're not dealing with a personal injury case like let's say was somebody is injured and they had a prior back injury and they failed to disclose because i hope nobody finds out of a this is a situation this plant there's no reason for him to hide that information sum up when he is that a he's not experiencing any experience at any point time immediately prior where that it was even on his mind but b is that it's it's not a it's not like when you and i go to a physician and they sit down with you and they are going deaf the but your medical history it's a form fill it out to process and unfortunately the form is not complete so the reason i raise that is is that what i actually i look at it a different way i say when you've got somebody who says they had had a bomb movement in over four days when they tell you that the medication you're given isn't working for them when they talk about the ball moving they have that's the point and yes i will admit maybe more than negligence with respect to that when they said well he said he had a bomb that in itself is not evidence that he's doesn't have an obstruction obstruction and the issue really the whole the medical issue is whether he had an obstruction right as that's what  kill you right there so but what i would suggest to this to you when you've got that when we talk about because deliberate indifference is a state of mind but what we have to make the determination of on is the facts that we see right so the facts or as a complaints that he's making that he's writing down and asking again for murder it's a treatment is he's got abdominal pain he's got back pain ok he's got constipation when he complains of four days then he's was and did probably was the blockage was a blockage and when he said that he had had a power movement they then thought well so whatever his blockage is it's three thousand at and that's fair conclusion well let let him and i understand we're on his going so let me address that specifically ok so what happened after that then after that she had contact with him again in the form of the complaint he vom ok that's where she drew a conclusion that ok well it's the magnesium side trade ok all right so you say under those circumstances maybe you can put trade that is reasonable i don't think so when you take into consideration which happened in the past now on the twenty third which is a sad thing he's complaining to the jail personal getting medical treatment they're calling is to nurse go in there is go to and says i called i talked to somebody and they said somebody else were now suspect ok so the point being is that again if we would break it down i would tell you that on the date that he says that he had a bomb movement and he said well ok then that led her to believe that maybe the condition was  that that that moment in time it may have been reasonable but then when the problem persists he's fine getting better in fact his condition is deteriorating and she fails to take any action she takes none there's no action the only action it's taken when to help that particular patient there was no there was a general idea sent well keeping an eye on there was no increment of time to watch him which are what i mean it is difficult to focus on judge genesis dissent in henson because it wasn't convincing to the majority what's well i mean i see your point and it's in this is another one of these tragic cases but to focus on judge dennis is dissent he did say what you said which is monitoring isn't treatment but ultimately those facts are not too dissimilar than these and as we you and i both discuss they are of the individual did say i've got the pulmonary disorder so how with henson well i guess it's unpublished maybe your answer the majority ruling wasn't consistent with him  the if i recall correctly the the gentleman in that particular case of blood pressure was like two hundred into over one hundred in one hundred ten or something that it was pretty bad and the majority's opinion was was the way i read was they said well there was no evidence presented that that particular that aid that led to his death and b that that particular reading on vital necessity did emergency treatment and there was they there was a common own they actually said that the said this is they basically comment on the evidence they said we don't take you know is this the type of evidence you actually do judicial review one aiel website because it seemed to me that what was draw the evidence wasn't presented at trial and so just as dennis had drawn saying well look i looked at the website which you can on horde dot org and it says that if your blood pressure exceeds one eighty that on the you need emergency care and i mean zeroing in on that there are bad vitals for the whole day before he gets into the hospital where we get bad vitals the reason i asked opposing counsel and a right away they say ok now go to the hospital if well that's on an ambulance yeah that's interesting because does what they fail to mention is that it no time from the eighteenth to the twenty fourth when he bought a stake in the lease there's no records of now that's different i mean the nurses didn't know oh no vitals in both cases and in hansen still another day here right away nurses say oh this may not be constipation we're seeing you know a systolic stuff right away she said that she just didn't say in an ambulance on the right right right she said you talking about i would suggest that in light of everything and the fact it's in here took him over i think the district court pointed that out it took him over the course that was relative to other defendants including the jail but it took him over an hour to get to the hospital which is a fifteen minute drive from the facility argument with respect to that is as yet there's incremental in other words i don't think that i have to show that ultimately the end result constitutes the violation of an a from him a violation i think that you can take individual each day because the guy s suffering needlessly based upon his request for medical treatment that he's not getting so i don't know if that addresses but but i did like i said that was how i was going to distinguish that case that was pointed out in that particular case the nurse saw him on two occasions and she was said i'm singing to the doctor two more one been open the nurse and i think that's what went into it was unbent on to the nurse the doctor didn't come in and day because it was thanksgiving in the instant case and then then the next question became with respect to the vitals whether or not she should have order to send him to the hospital but on the second argument that's what i think is at least my reading of the case wasn't that the court said with the court to get a consideration was it was really no evidence presented of that and the court the chief that even if they took the like the facts most favorable to the plaintiff there was no evidence that she knew under the circumstances that what would result in this particular case there are multiple days that treatment is not rendered despite requests for emergency treatment in this particular  a desire to get around the law yet a very thorough and you're absolutely right really tragic that it seems undisputed that your client wasn't someone who complained loudly in this area of law maybe that works against him to write those are those are tough situation no you're on and you're right and that's fair and i argued a case once which is maybe i should we spend my time on them but it was the case involving someone who was poor and basically with a physician testified to me says and he was actually caring physician but he just particular case again your honor i would stress that there or multiple opportunities that he requested treatment multiple opportunities for them to provide treatment and then they did in fact refused treatment as a district court point out both resorting to go there had enough facts to draw inferences that it was a serious condition and restarts case and whether that constitutes deliberate indifference will be up to the court but yet they both admitted that they don't indifference that's not or getting you very and the reason is not is because your brief cut in pace the district court's opinion and you say several times the courts written analysis cannot be improved saying to you given that most of our case of sat on a brief is more helpful to us if we had arguments he made to us in the brief for whatever benefit it is for us to pursue it you follow me we did not all argument in this case we ha the district court's opinion which we already have we would never have your argument that's the point i'm raising it's briefing is for a briefing not to cut and paste on i'm not saying whether they are into the spies of but you've sort of made my point i think case it's not simply that to broadly simply state that there was a refusal of care isn't an accurate assessment of the actual facts in this case and i would employ this court to look at the actual medical records this is not a patient that was refused treatment he was in he was in the facility for sixty days and he had countless interactions with a medical facility because he was being monitored for his glucose and taking those levels every single day in addition for his extended period of time he sent to the medical staff for rashes for various ailments throughout his course of over fifteen different occasions he see them so this is not a system where we've got an individual that says we want to see him hold in the cell forget about every time he reported an incident he came and saw us and i want to point out to the court because it's been mentioned several times by now my opposing counsel that somehow nurse richard refused to see him on the eighteenth when he had indicated that there was an emergency with respect to his backing that's not accurate there is no evidence that nursery shard knew on the eighteenth that he had that back pain what is customarily done is these forms are submitted and then the next morning which is the nineteenth she creates a sick call list based upon these individual medical records and from that individual is called here we know we don't have a refusal to treat because she doesn't come out and say i'm not seeing him she reports in the medical record that inmate is in court this morning ibuprofen refilled so she reviewed the complaint that morning and fill bit and it wasn't her fault she didn't say i don't want to see him she says he's in court and then she doesn't fact see him that the next day he fills out another one and then she sees and so we don't have a pattern of refusal to treatment at all and so i just wanted to point that up to the court in addition i want to respond to chief judge steward's a comment about an incremental a deliberate indifference because that's simply not found here i don't think you can just culminate the context look at the end result and say something must have gotten really ball here which rises to the level and is in deliberate indifference you have to look at the mindset of each individual actor on each specific incident to make that you can't pull this in nursery shark was not working with nurse gaudin at the time so you can impute that knowledge from that visit i think it's important to note that the severe back pain which many inmates complain about due to the conditions of sleeping on the hard mattresses was something that he did not complain about on friday with the nurse go down it was a completely separate and independent complaint of the belly tightening in the abdomen which was distinct from what ryszard was dealing with which was that plain back complaint which she in fact did provide treatment in the ibuprofen and again the fact that she's providing treatment it's documented in medical records gets this in the area of medical malpractise and not delivered indifference finally i'd like to just point out again to the court that in order to find deliberate indifference in this case you've got to have one of my nurses telling this patient i'm not going to see you we're telling the staff we're not going to treat you or do not take him to the hospital under any circumstances he's lying he's faking don't believe him don't you want to we don't have that in this situation we've got complaints responses and they may be upset with the end result and they may be upset with the way these responses were done but they've got their day in court under a negligence theory of liability and they can present their expert testimony and we can present doors and we can move forward on this as a negligence matter i think that the preceden circuit is routinely found in cases involving this if you look at the brown a decision that came out in july which cites to the go bare decision which cites to the stewart decision which cites to the farmer decision these are all cases where you've got conduct of nurses conduct of health care providers that are providing to best the to their abilities what they can do and if there is care involved and there isn't that person purposeful direction to not provide care you've got to find that qualified immunity applause and i think that the district court looked at the end result and he crafted the facts to fit a deliberate indifference which is not sanctioned by this court and has not been provided for in any precedents cited by opposing counsel or in fact even by the the court does is attempt to try to distinguish go there by claiming that in go bare there was several treatments and follow ups but what's important to note and the reason why that's distinguishable is it could go bare the physician treated the patient over two and a half months here run resort it was three days before this patient had the ultimate demise so there wasn't the same opportunities so in a in a three month period and go bare the court down that wasn't deliberate indifference clearly in this case with two times