never he had the st symptom that he might have had regarding that was on june th of two thousand and fourteen at least he started displaying some symptoms of withdrawal on that date there is no evidence in the record that there was any symptoms prior to that and it was a deputy rat line and who discovered that when he was in the unit of isolation section of the jail that person was a defendant the plaine voluntarily dismissed mr lyman so there is no evidence that mr johnson heard about any symptoms whatsoever prior to the th there's two windows here at the district court based upon her lower courts it's a similar medical provider nonetheless he is also in charge of mental health but he's also in charge of the medical ministration of the jail he is there i day of the week and he apparently did not get that instantly mr or whether he got it out we don't know he said in his deposition mr alton that he usually would not see somebody if they're still withdrawing from to just honestly say that has nothing to do with mr johnson's liability whatsoever because here we do that referral in the medical system and he's not the scheduler there it was also world turns testimony that there was a scheduler unit also the entire medical unit he's in charge but what he let me ask in this specific case to randal and render a physical medical opinion it was a psychological opinion rue who would have been the person to do the medical was not notified qur'an would have been one person to the medical yes but i will say that us that this is very important what are the symptoms that johnson actually hass that he's  lethargic that he's not quite as energetic as he normally is apparent because he's been in the jail before and three there is memory loss issues even if they even pull in that one of the officers who there's no evidence that he ever talked to johnson about putting the underwear on his head but in any event what he has is memory loss can't remember the job he had before he came to the jail it also been to the hospital a couple weeks before because of heroin overdose issues so this person has a substance abuse issue but whatever the fact does is this is the symptoms he has lethargy he's not quite as energetic and he's has some memory loss it made sense at that point to do a mental health evaluation and it isn't deliberate indifference for him to make that wrong distinction between dr roux versus a war option so that actually completely exonerates him under any of the especially mater and ceroc i think that's the one window they say he left the jail without any follow what they forget to say is and and this is important because plaintiffs in their brief claim that this thirty every thirty minutes by officers he seemed twice a day by the morning the day shift nurse and the evening shift nurse so that's where he is moved to he can rely on those policies that was never  that's the policy he's been gone for two days i have never seen any case that says a line staff person or a line staff nurse is somehow liable for days that he is not actually at the jail he comes back to the jail and is the other fault of the district court finds in mr johnson they say well he didn't tell how long he had been in medical and he didn't tell dr libro how long he had been on punitive isolation those are irrelevant because what he did tell and it's undisputed he told about all of the symptoms that he had and based upon their symptoms he got some diagnostic testing ord irrelevant i was with you until you said it was irrelevant because it seems quite relevant to say that doctorow's was going to make these diagnostic decisions including not to follow up with the testing of the blood when he didn't when he had every reason to think that mr prosser was was withdrawing from opiates s was that there is sometimes substances that they do yes even in different parts of the jail so this isn't like something like i still a to spar with there's no other cells there's other inmates all around him  other cells there's there's there's actually a science time there's these kinds of things that do happen and so it's incorrect to make this assumption that's not on the record that he could not be detoxing somehow just because he was on tell the doctor and they did not tell the nurse practitioner that he had chest pains now which is more important that he gave all the symptoms that he was having or he didn't tell about his cell assignments i would say that it's far worse in ma to n c lock not to tell that this person has chest pains and so what we're really equivocating here is housing assignment is irrelevant because the st the st symptom was on the th of june and then he was giving those symptoms he said he had a complete history that's what was undisputed and a complete history already from him and so i thought that you're almost nine burke vs regular lotto support the nihil summary judgment to the county here you can ask two cases so this is not and i'm not exactly completely front of the case but this is not a case where there is an unconstitutional policy it's not a case where they're saying we're not going to provide medical attention to these types of people or something like that there's no written policy that says that that's that that this what that would have just report found was there wasn't a written policy for diagnosis treatment and when to send someone to the hospital those can't be in policy they cannot be in policy because we're not a medical facility the jail jail has to rely on professionals that's exercising professional experience and they have and forty seven nursing staff they have a medical administrator there they have used as a practitioner they also have the doctors that they can call for state and the inmates and so they are getting it are reliant as they should for will collectively reserve five minutes for a bottle giving me five minutes for argument let me ask you mr why it's your report said the doctor of the row quote refused to assess or diagnose croutons condition at all close quote do we have to accept this fact on interlocutory review no you're on you don't and the reason you don't is because the nurses at the at the jail are his eyes and ears and they have to be because the way this is set up is dr rose only there one day a week maybe two days a week so he can only receive reports that he receives from the nursing undisputed that he believed that mr grossman was experiencing withdrawal from some substance which was causing his symptoms that's why on june th dr ro prescribed medication at a van which it's also undisputed calm some of mr krause and symptoms maybe making him feel better so he very much diagnosed mr costin's condition he thought it was drug withdrawal and then as to the last the last statement made by the district court that he failed to treat mr krause and that's also incorrect every day gnostic studies ordered at least one of those studies could not be completed as it was reported to dr ro because of cooperation problems laura deliberately indifferent failing to follow d up with another test when the nurse says i couldn't do the blood test but then nothing else happened by way of testing yes and the reason the reason he's not deliberately indifferent as of june th when it's reported to him that this test cannot be performed is because he is not confronted at that time with symptoms that appear to him to be a life threatening condition a life threatening condition or a condition that can cause diagnosis or what changed was the report to him your honor if the test could not be completed because of the excessive scarring and because of mr cross ans failure to cooperate here he is faced with a patient he's not at the facility he's on the phone and he's being report it's being reported to him that there is a patient who will not cooperate and that the test cannot be done so on the th when it's reported to him that these symptoms continue he moves based on based on his diagnosis what he believes mr crossness facing the drug withdrawal and because that's what he believed mr cross in was facing he then prescribe the medications and it's also very important to note those medications were effective as of the th of june and then dr ro doesn't hear anything for another few days till july st there's one other there's one other conclusion made by the district court that i think it's important to talk about here and that was the district co briefing he was only there once a week and if we wind up the days the days don't indicate that he was even supposed to be there during the time these reports are coming to him regarding mr cross and so as to the subjective prong of the deliberate indifference standard we believe that the district court relied upon visible fiction lately contradicted the record this is a doctor who at worst simply mis that they would have been able to conduct without regard to whether he cooperated or not correct at a stretch your honor so the only question is about the scoring so we hears from the nurse that he has scarring and that in combination with his other considerable factor would we're going to do for conducting the test now you say that it was continue that he had good reasons not to visit but he there is no evidence about him following of how expensive is the scar is it such that if we put him in a hospital that they too would be able to find a vein in order to test the blood and so when that you're saying that well he acted reasonably because he was not able to conduct one of the two diagnostic tests that he previously h wrong with the well i don't think it's a guess your honor this is a doctor who works at the pursue a prison facility he's very familiar with what takes place there drug withdrawal happens all the time and mr symptoms match what he sees all the time that's the undisputed testimony so it's not that in his mind there are these two competing you know drug withdrawal and stuff a lot of the he was confront show that he was not a deliberate this may not may not have been the best course of action but it was a course of action and how can that be deliberate indifference this court case  evaluation can also i mean there are psychiatry i mean they they can if they treat can diagnose in treat a psychological condition not in a vacuum but also with regard to their medical conditions so if he said if there's johnson says conduct a psychological evaluation why isn't that enough to open the gate for assuming that he was a physician's assistant qualified to provide medical care to do whatever medical care is necessary to evaluate a is a form of medical care and there's no question that this was a psychological referral and that in johnson's them declaration that this report cites at at two hundred and thirteen and he how how could the district court conclude that he made no diagnosis whatsoever and he did prescribe some medication said it is deposition but the symptoms were nonspecific at how can it be an all or nothing couple of medications in a in a kick hit and that that was enough even the knowledge that there were allegations in the complaint that she failed to conduct an adequate into a she failed to conduct get acquire additional information a general rule is relatively straightforward and easy to apply that general rule is that when a defendant subjectively knows of the need for medical care they need to act and the districts are concluded that because these why perhaps they didn't actually subjectively know or why their actions means that they were most negligent and they're free to argue that before the jury but the district court in a very for opinion looked at all of the facts a couple of times that the district court concluded that a reasonable jury could find deliberate indifference and i think that speaks to prong one it is you know a clearly established law part of qualified immunity supreme court has said you need to have an on point or or at least a factually analogous case and in the deliberate indifferen context that we have here seems like you're stating a pretty broad standard for clearly established that is that if you have the liberty and deference it follows that it's clearly established it almost comes across that way and i'm not sure you're wanting to put it that way and i don't want to put words in your mouth but could you speak more specifically to clearly established law d and what is your best case your best case for this case  circumstances of the case in that case and the defend then that how was i to know that my actions are that the context here meant that there was no sex no consent for case to tell you this is no ok because the general rule is relatively straightforward and easy to buy and that's the way of this or in the law can blackening has articulated that the law is fairly established  professional knows that medical protocol requires minimal diagnostic testing to confirm the symptoms but does nothing that person can be deliberately indifferent and those cases those be the situations court in mata said that the keeper must contact the appropriate medical professional who is capable of treating the condition and in black man which was the case about psychological  capable of treating the condition the appropriate medical personnel in this circumstance would have been were often if the referral had been for medical care but it was not for medical care it was for psychological care and huber did not report chest pains to the p a haven's but she still referred it to pierre havens and therefore she was not deliberately indifferent nurse sites to report to a doctor never talked to him whatsoever never told him about chest pains and she wasn't delivering different amy hot same thing reported symptoms to a nurse practitioner but failed to call the doctor as required by policy nurse quintana failed to call a doctor in violation of policy because she misread in each page a report nurse weldon was the only one found liable she did nothing since they said in that case she didn't that observation that's the assumption under the policy does it matter with regard to nurse johnson in referring him for a psychological evaluation that there's not any specifics you know for example a psychological evaluation can be a couple of things he's depressed he's experiencing anxiety or he's lethargic he can't remember where he worked which means that it's not just honestly that sounds like a mental health issue very much so like a psychological evaluation but i don't think we need to quibble about it he took action and clearly in a world and as a medical administrator to refer to dr lee well nobody questioned it's actually just the opposite i'm talking about the urgency of it and when you say that he took action absolutely the absolute opposite is true he never followed through now maybe he will follow through if he knew this is really urgent the man doesn't need to know where he worked he can't no evidence the record that he didn't know anything he had no brain function i think the only evidence was he was lethargic yet some memory problems he could remember where he worked before he came to jail on june th it also happened in the hospital for heroin and the assessment team out reasonably ok yes dilated pupils that's common if you're withdrawing from something but they were reactive to light showing that he's not just you know totally in a some sort of an emergency condition e there's an important quote there about mistake gnosis the court there stated that if a doctor faces symptoms that could suggest into gesturing or stomach cancer and mistakenly treat into gesture in the dark or the dark or is culpable state of mind is not established even if the doctor's medical judgment may have been objected lee and reasonable your honour's we believe this is a case of mistaken osis is it as it relates to the blood test it was a medical judgment on dr rose part not to follow through after it was reported to him that the patient refused the test yet additional symptoms reported on the th any acted by prescribing medications we don't believe that's a violation of the constitution thank you thank you thank you so we appreciate the arguments this morning this case will be submitted and