good morning judge jones judge judge really and thank you for announcing my name correctly your honor it doesn't always happen that way on behalf of my clients williams stevenson rick failer and  honor i read an investment guy once that starts stated that one way to succeed was to find an enterprise whose basic premise was false and that against it so not surprisingly this this theory applies to court cases generally and apply specifically to this case the false premise on which this lawsuit against my clients rest can be found in the record in the very complaint that is the vehicle for bringing us lawsuit there are three areas in the complaint starting on page thirty four ending on page forty one the demonstrate the false premise before i get to that i have to preface i have to lay the foundations of the court understand why the false the premise is false by telling the court what i think this lawsuit is about and i will tell the sport what this lawsuit is about not in my words but in the complaints words let's first look at page thirty five of the complaint which states and this is a direct quote from the complaint in the holsters argument is not the air conditioning is required for all prisoners but that thank prisoners with heat sensitive medical conditions defendants knew him the hosts are and were directly aware of his specific situation and finally the third call that contains the false premises can be for also be found on page thirty four and this is quote the defendant facilities would not undergo a physical for up to ten days after their arrival and quote this is in the plaintiff's words what their complaints about frank as an issue the court would probably  understand it maybe more clearly here's how i framed that those quotations an issue and this these are my words on the long recording from the complaint i think the issue before this court is does clearly establish rott law require the top three prison security administrators who have no medical qualifications or medical responsibilities to have a policy requiring that each inmate arriving in a prison unit must be mediately given i diagnosed the medical physical prior to signing you put another way did albert in a host on august twenty seventh of two thousand and twelve have a constitutional right to a pre admission physical before he was assigned the prison dormitory at the garza west unit eighty quote we do not think it necessary to require that all incoming prisoners the given a medical examination within thirty six hours of incarceration in the absence of reasonable grounds to suspect take judicial notice of we have invited to do on page four of our brief that the garza west unit has fifty seven medical staff assigned to suit forty seven medical staff forty two medical and enter injunctive relief as far as personal liability with a qualified immunity standard i do not know of any case that a set of p c b a director is supposed to provide water make housing assignments or take into consideration on  when you also allege that the medical staff is available to attend to his needs nine to six pm and you also cannot lose that after six pm there is available the local hospital system and local emergency room system that prison units use when they do not have twenty four seven care and that's why i say those are some of the reasons why i say that premises false not providing an inmate physically take physical is not the same or equivalent as  i submit to the court that it doesn't matter your honor whether they knew a particular inmate had a medical issue or whether inmates as a rule had medical issues if they have a medical system in place that is designed by by law to deal with those issues there's no constitutional requirement that i'm aware of that requires a security administrators know medical qualifications to look behind what doctors assess fail to do or do and say i don't think that's right we need to handle things differently than what our medical staff is doing sought to be attributed to the very highest level of a prison system that contains one hundred fifty three thousand inmates forty thousand officers and one hundred eleven units throughout a large state in texas the largest population as we've pointed out in our brief are a number of people within the system that can be really reasonably believed to have a medical deficiency of say takes ten percent and the question i would have is you you know the complaint the fires ten or eleven plight of other inmates other than mr in the whole stock there they are not supporting their case because this isn't about a class action involving entire t v c j system it's involves one specific inmate with a particular set of medical needs emotional argument as attractive as that might be the basic facts of this case involve who has responsibility for medical care and who has responsibility for other issues yes you're on the there's no u t m the system the designed to protect pigs if there was a you can be system designed and monitored to protect pigs then it would be that system that would be making the authorization for those pigs to be protected under the system as it works now and now again i'll quote from the complaint which they admit that it's not the d c gay security staff that has the responsibility for medical needs here's what they say in their own complaint page forty two you t m b m legislature removed all supervisory responsibility over the medical system from the t t c j officials and transferred it to our committee of managed health care consisting of nine members appointed by the governor seven of which were required to be medical doctors licensed in texas or otherwise medical professionals so we say if any consideration needs to be given i still meant medical history psychotropic drugs inmate needs  for an environment that's cooler than another inmate's those decisions are not made at the security administrator level because it would it would violate common sense to have a non medical person make a decision of what an inmate's medical needs is and that's and that's exactly your honor and the texas government government called five on going on three nine specifically states policy making authority as to medical needs of inmates in a prison system are the responsibility of this nine member committee not anyone th for protective order asking the court to do exactly that your honor that motion was was denied in the what the court went ahead and her discovery not only on the issues in this case but even went to the issues as to whether inmates should be transported in a cooler environment  alleges that people who don't have responsibility over medical ought to be making medically based the citizens as to what inmate has a need and where they're supposed to go based on that medical need transferring security administrators are sponsible for safety risks been made based on violence as to other inmates not the medical issues they can sure transfer an inmate if he's being threatened because they have security expertise as to whether an inmate should be protected from violence they have no such expertise on medical issues so when you talk about transferring him or his right those of the medical need you get to the five one point one four nine which says those type of decisions are made by policy by people denial of defendants rule twelve b six motion is appropriate which does not give the defendant's license to seek an immediate appeal judge or ominous follow we're back to decision to the letter your hon texas prison administrators because they knew because they actually knew that the people like mr in a host were in danger of a substantial risk not knew about and disregarding mr in a host is the poster child for the person at risk he had diabetes he was obese he had hypertension he was a schizophrenia and he was just under sixteen years old  very significant question because as a factual matter if i am obese if i madi mass index above a thirty five and it very well could be i'm not as young as i used to be that's for sure if i am i am at risk in the texas prison and you don't we have no and clearly you wouldn't disagree that the top officials knew nothing about me to horses it would that's a really important point there are no of course not i'm not saying that brad livingston who was the law and you argue this is the flaw in your argument heatstroke is completely preventable completely preventable with a simple housing restriction none of these deaths had to have conditions which placed them at risk of substantial harm according to t d sieges internal policies what that means is that let's say fifteen thousand people are at risk when the because he could not get a cup he did not have access to cold water which is what gates would require he did not have access to a personal failure so even under gates  i don't know if he had a sense frankly it's not part of the is any responsibility for medical decisions that the unit is a separate and distinct part from whether or not an administrator of a housing system has to provide safe housing and not to regurgitate hornbook law but that is that is the criterion shelter the most basic thing once you take away somebody's celebrity and they do not have the ability to go on this but in so you're making  b that that co manage the housing units in the prison people in housing and they have formulated policies that have specific heat related policies for work but have chosen not to do that for housing despite the fact that distortion of the facts to suggest that u t m b which may also have responsibility in this case depending on the factual circumstances there is a limited amount of air conditioned beds or cells they maintain responsibility for housing decisions and the conditions in the in the garza west you know it is is certainly pled there and there's been subsequently an amended pleading which delves into much more of the factual detail plausible basis a plausible factual basis for the claim what we've said here is that the prison officials have a responsibility to monitor and control the housing areas they knew that eleven people had died and they knew that there was a danger here we fled that through knowledge of their deaths through knowledge of policies through their own internal policies through descriptions of internal meetings that they had on  yes i mean we would we would suggest the factual matter that judge ramos found does in fact satisfy the law under under it ball with regard to supervisory live well i'm sorry with regard to specific in terms of do they have a supervisory responsibility he would say they absolutely do and we've pledged that they do with the top the senior three most that they're the three people who are responsible for making sure that the policies are  what distinguishes those cases that episodic case versus the condition of confinement case in a in a in a prison setting is here there is a policy that they have made to not mechanically lower the temperature in prison they have made policies to specific and in what i say they i mean the three people that we're talking about who are never regularly involved but again all of them the question is the difference between medical  county air conditioned jail had medical conditions which rendered him vulnerable which t d c j c through the three people that we've sued provides policies geared towards protecting those people and he died within a day based on yes with regard to baccy it would be our position that there is not your stiction ever this particular appeal because judge around this made the appropriate factual findings and then issued a and then chose to defer fighting of whether to us now three or four of them are on appeal not the one where the deposition took place and my it but my issue with that it i think had had there been kind of a did an agreement  this was going to be the deposition for all the cases that's one thing but those cases were operating under different tracks with different ideas those were voluntarily produced they're not even defendants in that in that particular case have judge did judge not or have most of those were words that were these cases pretty well they're all currently pending before judge ellis and currently because the parties have agreed to transfer agreed to a transfer of all of them they  eastern district yes all of the cases are now currently pending in the southern district before judge ellison judge ellison also dealt with the same issue in a case called march that is also one of the orders that we that we provided he also agreed with judge ramos and judge snyder each of issued near what we would describe as narrowly tailored discovery orders that go to the heart of deliberate indifference and was just wondering why if all the judges are agreeing on what the discovery is you know that they all agree that this is that there is potential that the thousands of documents are relevant to this query and it just seems to me if your issue is housing several inmates are your cases simple that's what you tell the jury twelve inmates the top three fellows knew about it they didn't do anything about it right that would be is this a theme that i would develop in the chaos yeah so how much discovery do you need for it to go up to two tied down that information well if they stipulate that they knew about each death and they tell me when they knew about each death and they tell me what they knew about the dangers associated with transfer facilities and people acclimating and they stipulate to all the things they're in a complaint i suppose you're right we would need a discovery  of a lot of electronic discovery i think that's a little bit beyond the scope of this particular deal well it just seems to me there was some way to tell you where discovery more rather than you know these were ten categories so we're calling for thousands and thousands of documents and i suspect that if there's you know that have the it come out the other way it was a five to four decision that's what would  required to show that donald rumsfeld you the muslims were rounded up and put in maximum security following september eleventh allegedly subjected to harsh treatment why did who were responsible for that prison you know we sued the correctional officers who are responsible for making sure that remedial measures are taken we sued dr murray who is the head of the university texas medical branch based on our pleadings there's nothing in our pleadings to suggest that he saw people at the medical unit he certainly didn't see a doctor in one of the issues is the need for an inmate physical the need for a doctor to check people out to determine hey are you at risk what do we need to do for you that didn't happen well and then suppose the livingston taylor and whoever they are non medical supervisors for the whole system i rely medical care provided to mr in the house at all and who's responsible for making sure that happens ok and here the administrators are able to if mr hosa can't see a medical provider there's a housing decision to be made and that housing decision is made by the administrators and they can decide to house him in a safe environment because they do know that he is because they learned over the course of time that people just like mr in a hosa were the ones that were dying or suffering heat exhaustion and so perhaps i'm overvaluing valid but the person who had the ability to fix the problem are the senior people and they choose and it's evidence to best by the fact that you know that pigs get misting and get cooling by and it's complicated because these cases are progressing on e track where this is not the only case in the parties are engaged in streamlining discovery and there are claims in this case which don't rely on the issue of qualified i ty and go to discrimination so discovery is going to come forward on that as well so it's hard to say but with regards to just the issue of qualified immunity judge ellison judge tonight or and judge ramos all made it clear we're going to limit it to documents or depositions which relate to these individuals personal knowledge of the dangers and what they did about it when they knew about problems and what they wanted to do about it in order to solve it so you could assess are they negligent or were they in tell this court that he's pled that the responsibility for making housing decisions is also on t v c j staff that's a half truth as i've already pointed out housing district decisions to the extent they involve security of and threaten violence which is the expertise of security administrators sure they have housing authority over that but let me just read to you his own complaint paragraph forty three page thirty nine of the complaint and you decide what who he's alleging has responsibility this is a direct quote dr murray and the practices for which he is responsible including not placing housing restrictions on the inmates vulnerable to the heat that's his own complaint have no expertise to make assessments with to attribute expertise to non medical people as to whether a new mate has a medical need that requires specificity that supplied housing not only contradicts his own complaint it also contradicts five zero one point one four six of the texas government code which states the committee the managed health committee shall development of prove them and manage health care plan for all persons confined by the department that specifies the types and general level of care to be well you would limit it to the events that happened at the garvan unit in two thousand and twelve and what the officials knew at the at s the conditions of the garza unit and also what kind of care and placement housing restrictions were provided to incoming inmates at that was certainly the c d c j minnes traders would have to consider medical staff input but in this particular case it has not been pled they ever received any medical input because nobody ever saw mr hinde also and love very clearly states there is no constitutional requirement to an income physical if there was such a constitutional requirement that would be on the basis of the medic that would be on the shoulders of the medical providers and also the requirement that they respond to whether inmates were transported in cool cool vans or buses  read i believe it would be your honor because again i would say that that a decision to transfer someone if it's alleged to be based on a medical need would not be within the scope of responsibility of the security administration a