because it involves a non medical officer interfering with a prescribed course of care in this case a scheduled surgery and the second case in its canal v bradshaw i'd like to clarify the procedural history and factual history in that case and in that regard we have provided courtesy call thieves to counsel and the court of the ninth circuit briefing in that case which explains the procedural and factual history and why  he with out just legitimate justification on prevented a schedule surgery for going forward based on a policy that he had every reason in the world to know violated the constitution in fact at least i'm just trying to parse out what the claim of deliberate indifference is he gets out of the picture once he permits the transfer to go forward is that correct so is if we're looking at deliberate indifference do we look so lely at his failure to either follow up or at least make further inquiries to prevent the transfer or do we look at the consequence of the transfer which was of course that he didn't even get is emergency surgery for a couple of weeks i think when you when you're looking at his just state of mind you deal with what the facts he was facing there and when i knew what he was thinking at the time when he was deliberately indifference with knowledge that there was a scheduled surgery and it appears he received a six hundred milligrams by the pope and he was treated you know as best he could be created so that means a bright follow your logic that any transportation order could be held up even an hour we do this an emergency or non emergency situation and this certainly isn't the kind of case i've had before where a job that those who have really left in a person's job he's treated with in thirteen days so i'm just curious how you rationalize transportation orders because prisoners could would prey upon them so they could come up with all sorts of reasons for transportation not taking place in a timely fashion here it doesn't appear that the prison authorities were acting with any subterfuge or animosity and if i made the difference here is that he had obtained there was not a cool verification that this was a real issue and he was scheduled for an emergency surgery and that really differentiates it from his from a case in which  manufacturing or trying to avoid and water and this is just really goes back to the point of that judge klein hart was making with the house right because you have a non medical official essentially substituting his hero and the reality of prison life as judge reinhardt noted in the news mind he was speaking the majority it doesn't look now there is whether this was a serious medical issue and that goes back to having verification by the medical authorities that he needed treatment he needed surgery the worst deliberate indifference there's the key as far as i'm concerned judge mccune raised and that is he's being treated it may not be you know the cure you and i would hope to have on the outside that there certainly isn't neglect on on the deliberate indifference point there is the statement and here we have no trend as well another over the counter pain reliever and again there are cases that really are instructive and there's a policy that is instructive because if lean left prison officials substitute their judgment based on objective evidence on which they've just had years of experience as a pressure on me it seems to me that this case is a little different because even even if he had a good faith belief that you would get care it's seems to me that there's quite a gap between getting care and having emergency surgery i mean emergency surgeries scheduled for tomorrow morning and he doesn't say anything about well i know he would be able to just get on the bus and drive over there and get emergency surgery at the next place i mean it's one thing to say well when you get there you'll get some medical care but doesn't the emergency nature of this the fact that you had a medical doctor that gives emergency surgery which in this system you know it's not all that easy to get isn't doesn't that kind of pump up the stakes a little bit in terms of the officers awareness and knowledge no your honor because all we have in this case is the plain of mr hughes the assertion that he had emergency surgery scheduled facility could possibly be better than the facilities that sank clinton so he didn't have that to me is an amazing thing so he has emerged as the surgery scheduled and then the officer makes non medical subjective judgment maybe he'll be better off to get on the bus that's what you're basically telling us yes because he knew that he had pain medication when he got on the bus he also knew that he would receive treatment immediately upon his arrival and mr president actually thought whether or not he was going back to  i have this to thank and presumably upon mr president of mind he thought that once he got there told the people that he had to to think that he would get treated in this record i don't see any indication and please refresh my recollection the subjective beliefs of the lieutenant involved because i think what you're hearing at least from my perspective is we may recognize that on intake into corkran that there is a level process where you're going to be once again we evaluated in terms of level one two three or four and you're going to be asked do you have any medical problems i think the concern you may be hearing from us as the reality of the follow up in light of what's perceived to be the very poor treatment it's one thing to say i have a tooth ache it's another thing to be treated when you get into corcoran when you have that scheduled treatment already arranged at san quentin and that's what's disturbing me right and rightly so  thought that use would actually get quicker treatment but or better facilities possibly better care and he knew that he had pain medication to take care of him until he got that treatment so you didn't have the state of mind did he know which we know from the record that i had the problem was given to hold him over from february eighteenth to the nineteenth i don't see any place in the record and correct me if i'm wrong that he had medications he was able to carry with him that would last him some period of time and that's his complaint thirty day period of time without treatment right i don't think there's anything saying that he you know how to supply but there is in the record information that he had much until he received the surgery on march third you put i think  you know slightly more elegant approach to it than perhaps officer and i appreciate that but it did seem from the record that what he was saying was you know i've got this order you're on board and i'm executing the order and you know i have a little piece of paper and you're out of here i mean the question is whether you know maybe not whether he's had thought corkran was going to be a better option but i question of the reasonable lobster given knowledge of emergency surgery would basically say you're on the fast no if ands or buts about it you're on the bus doesn't that really fly in the face of our that if you need medical attention and you're not given it that that is deliberate indifference no because i think that for qualified immunity we need to take into consideration and clearly established case law and the information that the officer had in their possession at that time so it's to mean that what use does is correct that he had emergency surgery scheduled for so taking that information that present knew we had an emergency scheduled there still was no clear really established case law just showed that by sending him off with not the case then knowing that he would get through did upon his arrival are these medically seen and referred to the right person for treatment and that the facilities were better there's no case law to show that you know somebody with that kind of state of mind was being deliberately indifferent so if you're honest have no further questions or peter's not thank you thank you additional questions thank you tony thank both counsel for your arguments this morning the case of fused versus paris is submitted