my name is eric petrie and i represent james penny well a wisconsin citizen who was in prison for a dui and who then went blind while in the care of wisconsin corrections system on appeal today are two arguments first for the court abuse its discretion by refusing to appoint counsel for mr honeywell and second that summary judgment was inappropriate given the numerous disputes of material fact in the record below before addressing the merits i want to acknowledge that this court requested briefing on the issue of jurisdiction and that all parties agreed in their brief that score does have jurisdiction i'm happy to answer any questions on that issue if there are any but otherwise turning in my first argument because mr penny well ma reasonable attempts to obtain counsel on his own and the appointment of counsel issue really depends on whether he was competent to litigate this case on his own and under this court's standard laid out improve burst mode that requires a district court to conduct an individualized assessment based on the totality of the circumstances so the district or in this case under this court's precedent was required to consider the specific circumstances and characteristics that mr penny will face and the specific facts of the plaintive as to his inability to meet those demands now isn't this case different in that the denial came at the very early stage of litigation and the santiago versus walls and which the court found an abuse of discussion because the district court issued an order with definitive language it essentially telling the plaintiff that it to disregard did not intend to revisit the appointment of counsel issue the trial and so this court because it held that order in santiago to be in if you abuse of discretion the order here in this case which is again the functional equivalent is also an abuse of discretion and moreover this court h in the armstrong case that we cite in our brief that the pruitt inquiry applies at the treating stage as well there's simply no excuse for the district court to ignore the standard that this court laid out and proved requires an individualized assessment the district court in this case use boilerplate language that could have applied to any plaintiff in virtually any case it did not apply the legal standard that this court's precedent requires in james versus eli and  he have to show that the defendants were aware of the type of loss of the asian that would indicate retinal detachment and other it's what i'm trying to get two here is what evidence is sufficient to create an issue of fact has to deliberate indifference as opposed to mere necklet genes well in this case you effectively have a he said versus they said and mr penny was verified sworn complaint which constituted an affidavit at summary judgment mr penny well presented evidence that went to when dr victor in p a parish and nurses  video was complaining of loss of vision and flashes of light and as dr michael alter wheel's declaration which the defense themselves introduced below the doctor argued that we claimed that those two symptoms flashes of light and loss of vision are the telltale symptoms of a detached retina that requires immediate emergency treatment and so here you have in mr penny what's complaint he swore in his complaint that he told the defendants of these symptoms and yet in the defendant's self serving notes in declarations they present a different set of facts claiming that they didn't know of these symptoms until april six but that in and of itself is a dispute of material fact that detachment and there's no reason that that shouldn't have happened on march thirtieth when mr penny rolled her told nurse jackson about feeling a tear in his eye and severe pain order on march seventeenth when he told mrs jackson and bronze and others about flashes of light and loss of vision or on paper april eleventh when he told dr victor in p a parish so again this is this is a classic he said versus they said and regardless of which side it is more credible that wasn't a determination for the district court to make that should have gone to a jury and it was inappropriate for the district court in this case to to grant summary judgment for the defendants if you look at page twelve of the district court summary judgment order the district court stated that the defendant's version of the fact is quote entirely possible that is not the summary judgment standard summary judgment requires all reasonable inferences in favor of the movement which is mr pending on this case and because in his sworn verified complaint which again under this court's precedent constituted an affidavit and therefore presented evidence every claim in his complaint within his personal first hand knowledge is evidence that refutes the defendant's self serving notes and declarations and so it was think your honors are absolutely right you put your finger on the issue when you identified why this case is distinct from some of the others in which this court did find abuse of discretion and that's because this was a pleading stage decision that well he was same once a judge refuses the request twice he ferry around might have believed he would be prejudiced to be kept requesting appointed counsel i think who wants to care and multiple occasions when they did perceive him to be reporting emergency symptoms they sent him directly to u w for surgery i mean this happened on three two different occasions i think he was sent out for emergency care the same day he reported symptoms he got surgery so it i mean when they when they did perceive an emergency situation that's what they did and i think there's no evidence in the record that that they perceived emergency symptoms on any of these other could constitute deliberate indifference it could couldn't well yes i think i think what's important to keep in mind here is when he first came into custody he saw a specialist in who will be speaking next in that specialist you know listen to listen to the symptoms that he reported and simply scheduled him for a follow up appointment at an eye clinic approximately i think a month and a half perhaps his medical record and saw that he had seen a specialist to discuss these problems that he had been having for for some time as as you pointed out and then when they saw you know in the record that after seeing the specialist  specialist you know didn't think that there was an a need for an emergency surgery or anything like that i think they're entitled to to defer to a specialist course of treatment i think that's clear and in my view that's that's what they did i think even accepting the veg allegations and his his in his complaint about what he said to these deals he clinicians  there and you know even accepting that is true i still don't think there's anything in the record that shows that they understood this to be an emergency situation i would also point you to the declaration of dr all too we'll who is an ophthalmologist and not a defendant in this case  and he's not an interested party he's if you're going to third party ophthalmologist at the university of wisconsin who are viewed the records so you know i think if you if you're looking at you know the evidence in the record which is which is all we can do at th stage it's a high standard deliberate indifference is a high standard it's not negligence it's not you know couldn't you have made a different decision you have to fall substantially below the standard of care to satisfy deliber indifference claim and it's and i think here the subject of prong of that claim what was inside these do you see clinicians minds when they when they saw mr pena well i think there's simply no evidence that they bury their heads in the sand which is effectively what you need to show to prove up a deliberate indifference claim against a they they knew he had seen a specialist they knew that he had an appointment upcoming for for as i problems they they saw him the day of you know he made multiple requests to be seen and in the health services unit and each time he was seen the same day or i think maybe once the day after i mean these were prompt responses to his to his requests for care and responses that did include a couple times  same day surgeries so it's not as if these defendants were simply ignoring mr panel i think the record shows and i think are pretty flays out the timeline well there's a lot of care that was given here  was he was sent out to you multiple times you follow up visits to u w so so again i think you know it's important keep in mind that negligence negligence is not the standard you have to you have to meet a high bar and it exactly what the problem was and apparently fixed and then there was a period of time and then he went back and sort of the ophthalmologist or there's a point at which it was about every marj about a two month period upon his intake to deal see before he received the surgery but again i think what it's critical to remember about that time period that two months before you first was sent out for  the nurse to see him in the coming you know in a prison setting and you know second guess effectively is what we've been requiring these nurses to do is second guess what the specialist it said and  dr out will provide a declaration which he says that mr pena will report to him that less than or less than two weeks prior he began experiencing the telltale signs of a retinal discuss the development of his retinal detachment sometimes and again state if they occur near days before his retinal detachment surgery in april these admissions affidavit however his affidavit doesn't speak to the admissions that he made to both of his treating physicians in both of those he admitted that the symptoms of his retinal detachment occurred near days before his surgery based on fees on contra uncontested facts and these admissions it cannot be that the district court improperly found that dr richter was deserving of summary judgment when no retinal detachment symptoms could have existed at the time argued that there was no evidence that any any of the defendants knew of mr penniless claims but again pointing to the complaint in this case mr penny well asserts under oath you asserted in his complaint that he told each of the defendants much earlier than they claimed much earlier than april sixth and at a minimum at least with regard to nurses jackson mr penfold nurse jackson through the health services complaint system on march thirtieth but he felt a tear in his eye and that was against the backdrop of loss of vision and flashes of light and as your honor noted this wasn't a plaintiff who is i'm a lingering this is someone who has a long history of i problems and who knew what he was talking about he understood what his i felt like and at a minimum this raises a dispute of material fact as to when the defendants move apart and what they do moreover it's not enough for a nurse jackson to have back to his cell with instructions to wash his hands mr people did not see a doctor that day and he should have he should have received a merge and see care for the symptoms he was describing regardless all of this underscores the need for counsel in this case mr penny was prejudiced by the lack of counsel and with counsel mr penny well could have built a much stronger record as to these defendants as to other defendants in with other claims something the simplest including in the record what the minimal standard of care expected in this context i could have conducted depositions all of that would have helped his position and finally briefly to judge by our suggestion that another point on remedy would be enough in this case to simply summary judgment and revert to district court pretty discovery with instructions to appoint counsel it's not necessary if the court today finds conclusively that there is evidence in the record of deliberate indifference enough to simply district court to weigh in on the credibility of mr pettengill evidence versus the defendant's of us right there for us this court to reverse thank you very much one who you were appointed and i want to thank you and i