o of the district courts granting of summary judgment motions and a motion to dismiss in favor of the various apple leaves we're asking this honorable court to please review the district court's decision and reverse it in all regards donnelly's does present a credible medical evidence that the defendants in this case were deliberately indifferent to a serious medical needs that evidence includes those defendant's own progress notes reports and other medical records east is established genuine issues of material fact as to whether his constitutional rights guaranteed under the th and th amendments were violated there are various solutions is an agency that i have a contract with many haha county to offer medical care at the many howard county jail where mr east was incarcerated mr east has had east was suffering serious wounds or blisters to his right foot he repeatedly sought medical attention for these despite the persistence of these serious wounds the efforts that were persistent these wounds were and the fact that they were not healing despite the attention that was being paid to them dr hiser did not refer mr east to wound care outside of the hoss or outside of the jail to the local to how do you how do we find the line between a let's say the now practiced suit our negligence and deliberate indifference in this case because it seems that the record and i think that mr aris does not contest the number of times he was seen by the medical folks there and that type of care the wound care the attention and several trips to a hospital how do we material facts and statements of disputed material facts from the parties but i think that the record is very clear here that dr high's layer in correct care solutions downplayed just how serious  the condition of the split was there are a number of instances in the record where'd dr highs learn correct care solutions assert make assertions about the condition of his foot that differ from what they recorded in their own notes and their medical records and i think that that illustrates the difference between a simple medical malpractise claim and the deliberate indifference standard here i also think that just the fact that he was in inmate in the county jail and was being treated by dr hives lawyer and he was as a result he was in a more vulnerable position than a number of patien would be reflects the fact that she was deliberately indifferent and primarily it's the circumstantial evidence particularly the records where he continuously points out that their issues with his foot the infection appears to be proceeding there are other medical professionals who are examining him dr list and dr smith and various nurses who are pointing out that there's an infection and that spreading and then never the less solutions decline to refer him outside of the hospital for additional care so so it's really a factual issue i think and i think that's one that's right for a finder of fact rule on and was inappropriate for summary judgment e pick line that was in order to avoid additional infection mystery's documented extensive instances of not receiving proper here via that  point one of the correct care solutions nurses actually dislodged it resulting in considerable pain there was an infection that resulted because of the unsanitary conditions surrounding  the administration of the medication medication was administered in the wrong fashion the pic line was set up so that medication could only be administered at a certain speed but at one point or an actually administered the medication in just a few minutes rather than over the half hour that it was supposed to be the pic line had to one point be removed and replaced and mystery suffered considerably he made a number of complaints at one point was actually scolded by a nurse as warrant for making complaints after returning to the house after returning from the hospital when the pick line was replaced so there were a number of instances and we believe that there is a genuine issue of material fact a nurse i was born was dismissed for failure to serve her is that correct that's correct we were unable to locate her after we made several attempts to locate her and serve  moving on to our claims against the staff at mike duffy state prison shortly after a stay of maker of the state prison mysteries began began suffering problems and severe pain in the same two fractures in that right foot put a cast on mystery east and left instructions for the penitentiary that he was to be not weight bearing for two months and was to be confined to a wheelchair contrary to the claims of the apple levy's it was not a recommendation but it's very clear from dr pedersen's no that he was to be non weight bearing in was to be transported around the grounds in a wheelchair nevertheless when mysteries returned to the penitentiary physicians assistant and v and other penitentiary staff denied him the use of the wheelchair for most of the time particularly when it was on his baker and goings at the ticket lee the standard we should apply and why that standard favors you absolutely your honor i believe that the standard that should apply  well it simply simplifies the analysis  i'm sorry please applied to this case that's what i'm driving at i stand thank you your honor in this case we believe that the one step analysis permits mr east to bring his claim despite the fact that he did not exhausted ministry of remedies because a similarly situated inmate of ordinary firmness would have known under those circumstances that if he brought an administrative complaint against baker and go ins through their conduct that there would have been retaliation and we believe this argument is bolstered by the fact that other inmates in the penitentiary related to him that he would be subject to retaliation s are the threats to vague to general to normal prison talk no i don't think so because they reflect the reality of the prison quite frankly and a person in a mystery situation isn't going to distinguish between vaguer ambiguous threats in direct in your face threats right frankly that somebody in mr east position is going to be quite sensibly aware of the context of the of the context of the threats the environment and the circumstances is there is there a is it your position that that the step steps two and the two step and alice's and the solo step in the other line are those different the reasonable inmate of ordinary firmness versus the similarly situated individual is it is jim position that that's in any meaningful way different what i think it is different in so far is the st step reflects the current state of the law and what we believe the law should be the nd step just simply replace is an additional burden on the inmate that's really quite frankly unnecessary and has already connected to the st steps well well i guess my point is that the st the st analysis the one from the rd the night the th talks about whether the threat would deter a reasonable inmate of ordinary farmer ness and if i understand correctly the test that you would prefer that we apply is just whether the threats are serious enough to deter a similarly situated individual i do think that they set out difference to interests because they think that the test that we prefer allows more leeway for facts to be presented in order for the inmate to establish their position at i just have one question if you had to point to the evidence in the case and pick out your best evidence of a threat that's related to the potential filing are compliant what would it be well i think that there would be the fact that the guards to mysteries to a less isolated place when they made the threats and then actually meet the threats and taunted him in an isolated place where he wouldn't be observed by other staff or anybody else i think a reasonable person under those in that situation would know that these guards don't want anybody else to know that they're doing this they did in a for they did it in an isolated place and then they did it again at the hospital off of penitentiary grounds that well i guess i'm asking what's the what are the words that were used what what what were the threats that she would point not use explicit words but in them or make right to say i think it's made very clear that if the threats aren't explicit they don't have to be explicit is long is a reasonable person of ordinary firmness would understand that retaliation for  a complaint is a possibility so they did not use explicit words to dissuade him from making administrative remedy but their actions certainly would have done that ok so they took it to an isolated place what's what's the what's the non explicit words or conduct that you would they you would point to is that is that he at that taking him to an oscillator place and then threatening him with violence which an ordinary person would understand that they would not want reported to their superiors i think you're muted i think if you're talking at least i don't hear you thank you for that i'm sorry i forsee it please the court counsel my name's matthew murphy i'm here representing dr gene heisler one of the apple e's in this  matter this is my st opportunity to have oral argument before this court and i'm very honored to be year dr jean heisler is a veteran of the medical community in south dakota has been practicing for about forty years in relevant d part to this case  a center for family medicine employee where she was contracted to provide care to many county jail inmates for about four to five hours a week and in that role is where she crossed paths with mr east  the appleby's in this case have fifteen minutes total i get four i'm going st because my clients care timeline was at the beginning and we tried to switch to split the sub chronologically so i'm going to kind of dive right into things judge lang made a very thorough review of the record at the district court level and you issued a very extensive and reasonable and well thought out decision on this issue his ultimate determination with regard to my heisler was that the evidence even taken in a favor in a light most favorable to the nonmoving part of the plaintiff did not display the level of deliberate indifference or criminal recklessness that needs to be shown to demonstrate that she it acted that way towards a serious medical condition that mystery's had this court could affirm is decision based on those grounds and we would ask that you do so this court could also affirm his decision on other arguments i've made in the brief namely that the claim against dr heisler is barred by the statute of limitations the claim against dr hiser does not pass the subjective slash objective test for deliberate indifference in that dr hiser did not have a subjective awareness of an objective least serious medical need and i think the evidence bears that out in the way she reacted to what she saw during this treatment timeline and the plaintiff has failed to put forth any medical expert testimony to support the causation or the standard of care elements that should be in this record to demonstrate that my client dr hiser acted with deliber a two to three times in her forty year career you're in a non diabetic inmate non diabetic patient it's a rare rare occurrence certainly had a blister and it was slow healing the medical records demonstrate that what they also demonstrate is a care team which included multiple physicians multiple nurse practitioner and nurses seeing him almost every day where they were treating what they saw and  receiving changing the type of gaza that was being used allowing antibiotics time to work and the care team actually used three different types of antibiotics on five different treatment courses this is not the type of case that your honour's have been involved d with in the in the past where there's a clear medical need that's completely ignored it's not like the dad versus a no case that you wrote judge kelly or the williams versus york case it's more thank you may please the court traveston boren on behalf of the absolutely d correct care solutions the district court's order granting said judgment in favor of correct care solutions should be affirmed because the court properly concluded that the facts of mysteries of medical treatment at the county jail did not meet the well established standard for deliver and difference under the th amendment c c s did employ the nurses who were providing medical and treatment to mr east each day at the county jail as it concerns the nurses there are a few material facts that i'd like to emphasize in my limited time that support the district court's determination under subtle principles in the circuit as it concerns the pre surgery timeline the record establishes there was no initial delay in east undergoing evaluation by a physician he st complained of an issue with his right foot on a saturday he was seen in that same day by a c c s nurse and he was scheduled to be seen by the physician the following monday provided and documented providing daily wound care which included unwrapping unwrapping the covering for the wound observing the wound cleaning the  contends in his briefing that there are three days out of by my count a one hundred and sixty three day period in which daily wound care is not documented and therefore it did not occur days of daily observation and wound care treatment does not resolve the tiriel question of fact as to whether the nurses were deliberately indifferent to the condition of mr east right foot pre surgery concerning the post surgery timeline when mr east returned from his six day hospitalization she was placed in medical observation housing where he was able to be seen by the nurses each day and they were able to administer his daily dose of intravenous antibiotics which included two antibiotics dept of mice and set triacs own or commonly known as were suffering because pick like they did this once daily he received the doses as ordered over the course of six weeks mr east was prescribed pain medication initially three times a day and that prescription changed as his complaints changed over the course of the six weeks m given weekly lab draws on every monday over the course of the six weeks which were altered in accordance with the orders from the specialist that he saw the local hospital he was sent to his surgical follow up appointments as ordered by specialists and he was at the local emergency department three times in the six week period in response to his various complaint over all i don't propose to go into detail as to the specific medical care provided to in mid east fungus transfer to the m d s be in april two thousand and fourteen it seems perhaps month period when his foot was in the cast counsel you have so little time because the way you've done this argument which i've never seen in sixteen years you have so little time would you please address the task here as to baker ongoings yes i  threat or alleged threat of retaliation has to be shown under circumstances to be reasonable and it's perjury case to state with smith that mr east cannot satisfy that burden i would point out that there is no credible cases go ahead right but the fact of matter is alleges that one of the reasons that he didn't report the alleged threats was out of fear that the institution would  delete or destroy the video evidence i would like to stay alive to simply point out that by failing to bring the alleged threats to the attention prison ministry of yours is denied them the opportunity to either review said video tape and or to preserve the same under the objective test the state would argue that the district court probably found that inmate is failed to offer any justification for so you are in kind of a causation goin itself there's no way under the circumstances a reasonable inmate could perceive the alleged statements as a threat not to file a grievance there's simply no credit connection between th and we're not judging credibility here again but i will toil with you on that your time is expired mr nagin and so then we're to ms cook thank you your honor guard just waiting for them the clock is not cooperating we'll spend more than a minute thirty on that but don't you worry about it we'll give you the minute thirty somehow some way we'll give we'll give the people in st louis one second to get one hundred and thirty up there doesn't work we'll do a minute and we'll guess after that i even have a cell phone so it's not impossible for us to do this close but not impossible i'm not your honor i have very little to say complaint against defendant adams for failure to state a claim in the looking at complaints it's different as well from the other defendants and only has two specific factual allegations with regard to the care provided by defendant adams and even assuming these facts to be true as is required by the court in determining whether to dismiss a complaint for failure to state a claim still cannot sustain a claim for deliberate indifference against defendant adams st deliberate indifference requires that generation or extreme pain similarly even if this court were to find that the complaint states and objectively severe medical need the complaint is completely devoid of any factual allegation to support the conclusory allegation that defendant was aware of subjectively and deliberately disregarded that need and certainly not to the level of criminal recklessness necessary to sustain a claim for that without being your own or i would respectfully noted the district court conducted a lengthy and detailed examination of the course of treatment provided to mr east at the many county jail and concluded that he is here at the jail for any serious medical need failed to meet the deliberately indifferent standard in the absence of any underlying unconstitutional act of deliberate indifference to mysteries serious medical needs while incarcerated at our jail the county simply cannot be held she had a subjective awareness of the seriousness of the condition the court can take into consideration dr hiser has access to his medical records including the wound care work sheets that obviously demonstrated that the wound was not healing and the fact that she persistently ignored the clear evidence the disk condition was worsening these were things that were noted by other members of her team other doctors who who were examining mysteries the nurses one of the nurses indicated as far back as june month and a half before he had a surgery that he should have been seen at the hospital much sooner but d her superior and so there was nothing that she could do about it the circumstantial evidence certainly indicates that dr high's lawyer had to have had subjective awareness if you was doing any sort of rudimentary review of his condition the fact that she continued to treat him in persisted in the same treatment of him is not evidence that we should she was not subjectively aware of the seriousness of the condition to say otherwise would be a tautology the fact that she continued to treat him without taking the extra necessary steps is really what's what's key here that the necessary steps would have been referring him outside which he deliberately declined to do i also want to take up the baker and go ins issue very briefly we think that there is evidence that there was a connection between mr east's failure to report their conduct to to