important to know that the cells had a heart pods where you could boil water to the point of water to get to the scalding point where i'm five thirty pm another inmate and somehow for whatever reason walked up to his bunk where he was laying down through scalding water on his face hitting the left side burning his left eye left ear part of it and they can and shoulder in chest so the what she's observing at that point that the burn seems sort of superficial so the doctor ordered you know cold compresses arm but silver then cream which i guess is for the burn and then give him some ibuprofen around six forty five that evening and there's aldridge comes back to check on him and at that point things are getting worse he's trying to swell up he started have problems seeing out of his left arm so he's complaining about there so the nurse takes pictures did and then more specifically asked do you know if he got the pictures and she said i believe he did because he commented on them so i don't so i think we're basically from the you're with the facts and the key question is where was there error on the part of the district court in dismissing the various claims against the various individual defendants or the and it is well your honor the  earth was in the fact that there were but the issues as presented during the deposition created genuine issues a material fact for a jury to hear regarding what what we're going the medical treatment but but what the big question isn't it is whether this is arguably negligence on the part of the various people in not getting prompt treatment because ultimately he was sent to the hospital and got full treatment at the the doctor's deposition he was shown nurture all bridges progress in those and where she was writing and he looked at that and he's like oh had i known that description as it is written i would have ordered him to the e r immediately so yes a deliberate indifference is the fact that obviously there was a serial serious medical need they recognized that but did the doctor and assuming the nurse aldrich was correct in her deposition and told the truth and said yes i described the injuries to the doctor as i wrote them down sent pictures but the argument said the doctor just pretty much was indifferent about it he was a psychologist just let's see if it gets any better let's just give him whatever local treatment we can i guess you can surmise that perhaps they're trying to save money and eventually realized that he should have been sent to the r and they did thirteen hours later but when at six forty five that evening he was t there are two possibilities one is that the nurse did send the photos and the doctor got them but ignored them and now is lying and saying he didn't get so in any under that scenario there is deliberate indifference by the doctor or the second scenario is that the nurses lying when she says she sent the photos and that she should have sent the photos because the development of his  burn injury is such that it was obvious that he had a very serious injury at an early hour as opposed to later on so any there either the nurse was deliberately indifferent or the doctor was and we of course were using the word deliberately and different as a legal construct under farmer versus brennan and correct but but thing is you know the nurse testified that she did send the pictures she took the notes so it's hard to believe that she would be that they tell her nose but not send that very specific information dr the doctor probably just didn't pay much attention because that his their positions he says well i don't recall that then when shown that seems like oh well had i known that at the time i would have sent him to the e r sooner and then he even admitted that yeah those were second degree burns so somebody was deliberately indifferent and there from there and then below that he dropped the ball i mean we could say that somebody didn't get treatment although she had previously admitted that she had sent in her deposition previously and she was a former e m t that's critical that's crucial so she has some advance knowledge and she knew and  no i think the case will still stand however i think that she have some some additional knowledge that would probably what she should have exercised in a negligent situation i'm wondering if you agree that this times as she has for her deposition she had made her own the decision on out of her own volition to send the mates of the yar even for non life threatening situations but in this case she deferred to the doctor eventually the bottom line is that eventually received treatment that should have been given to him sooner now the southern health claims that well we did not have a medical expert we can't change that fact however and i like in frankfurt so it's not a has not been either affirm or overturned but i think our side see my helps us in the fact that mr mel is perfectly capable of test fires to his current injuries and something to point out to is that southern health they did not have them evaluated either so they do now have a medical expert to rebut miss milly's claims so that's up to the jury to decide your men that's this those are involving state claims is that right or those were part but those were part of what the district judge ruled in that we didn't have an expert to pursue our medical malpractise but i think we have enough to go through  appealed that so perhaps now you know that raises a question is there a final judgment in this case i thought the case was still pending in the district court there is that the claims against the inmate anthony how the perpetrator but the claims against southern health shall be counted and the individual shall be counted defendants those have all been dismissed by summary judgment so that property before the age if there is still pending a claim in the judge did not comply with our case requirements about explaining why there was no just reason for a delay on the district judge did was parrot that language from the rule why why shouldn't the final judgment requirement apply here and we say that we don't have jurisdiction over this appeal because there are matters that are pending in the district court and the district court failed to explain why fifty four b was  satisfied and obviously your honor i cannot answer why the judge you know chose to do that do it that way i can say i don't even think the judge really looked at our briefs because we raise some issues that i don't think were really addressed in the brief so agree to dismiss the remaining claims then there would clearly be appellate jurisdiction now you know i have any inclination to do that we do not have any with the only remaining claim is against this other inmate right all  we claimed the assault and all those claims against the inmate and those are still pending got as correct my question is is that the only additional claim correct correct and i further question is you either now or in the next few days should you want to dismiss that appeal i'm sorry that case against the other inmate for whatever litigation reason you might want to do that that would eliminate this concern i believe under our precedents about whether you presently have jurisdiction to raise this appeal and i'm making sense i see where you're going your honor and now we can certainly you know talk about it and make but there is the issue i'm a little like you we'll let you think about this in the in the future it's obviously we're raising this because jurisdiction is something that the court must look into and if there isn't a truly final judgment then we don't have jurisdiction over an appeal and if the district judge didn't comply with rule fifty four b properly then we don't have jurisdiction and these are all if so i'm not saying because we haven't ruled in any way  panel on this matter but if your claims against the inmate were not going to be producing any value to you you know if the inmate for instance were in pick unius person and getting a judgment that he shouldn't scalded your client which is obviously nobody since called anybody then you know it may be that there's nothing worth pursuing but we're not we're not telling you what to do in any way we are just raising questions which is what we do here i understand and i'm sure he's probably in a prison somewhere so so your red light is on and we will give you i don't know if you reserved any room i had reserved two minute reserved two minutes ok thank you thank you found in this case i think at the outset it should be mentioned that from a cursory review of a plane as allegations it's a little bit difficult to determine in what manner my clients were deliberately indifferent to mr medley i think we can all agree that the majority of the claims here arise from the medical care and treatment and with respect to that the court's right this is a deliberate indifference claim least for purposes of the section i date three allegation s which require two components an objective component and a subjective component we haven't argued the objective component because there's really no dispute the man was burned it was a secondary burn but rather the subjective component is is what's paramount to the district court's finding a qualified immunity here and under the subjective there's two prongs that the plaintiff must establish and fail to do so before that this record one that the officer my client sergeant doyle and i speak of sergeant doyle even though there are ten other deputies named she had the most kind of hands on interaction with mr m throughout this thing but one that started well knew of a substantial risk of serious harm but maybe more important than that certainly maybe more imperative to the district court's ruling is that she then disregarded so he could be consistently or constantly checked in on assessed cell checks were done every fifteen to twenty minutes when the nurse went off duty she moved him to a cell that was closer to actually right next to the control center so she could keep him was real time ion him she followed every directive that s h p gave her keep him hydrated bring him cold compresses make sure he's that he's not in any kind of distress and that's an important point from the moment this happen up until the moment that mr medley is removed most the vast majority the salt checks mr medley was sleeping comfortably  he was laying down on his bunker he was sitting up on his bunk so she made sure to check in on him make sure he was doing doing well and importantly and when his condition began to change in the early morning hours  the next day she called the nurse told her she just went off duty gave her an update when his condition progressed a little further she called the supervising nurse robinson gave her an update she also took pictures so that the next nurse coming on duty at six am would be fully apprised of the situation so your honour's these are undisputed facts that paint a picture that have little to do with deliberate indifference there were some other facts as i recall the pick the photos on the phone were deleted is that right of sergeant boyle's phone is that right that's correct that's correct so we we don't know what those photos you don't know what a a jailer sees that a inmate is deteriorating and when calling the nurse the nurse says just give them ibuprofen and you know wait until tomorrow the jailer have any responsibility to get medical care more promptly then that nurse who's not there is telling the jailer to do well i think in terms of responsibility that would certainly depend on the facts of the circumstances of the situation if what kind of distress he may have been and what his pain scale level may have been the condition of his face obviously and there's no doubt it was a trained e m t fifteen years prior to shoot to shoot and totally took employment with the detention center but whether she was an e m t or not really has little too little to do with the deliberate and different standard if it may go to negligence it may help support a negligence type claim but we we all know the use of u s supreme court has told us negligence does not make a deliber indifference claim so even if she knew that or should have known i should say that the man required a certain course of treatment for this kind of treatment is not actionable under the fourteenth amendment it may be under a state law negligence claim and so that the duty of which you speak judge moore may kick in on on the on the state law crime you know i there's another component and i just mentioned  decision but wouldn't it depend on whether the course of treatment caused serious additional injuries which i guess is the underlying assumption here that if you had been treated immediately he wouldn't have had long term injuries that he may have had names yeah i mean i think your honor we have to remember though that both plaintiffs expert has said that we followed our policy to a t there's been no medical proof frankly that the progress of mr bradley's condition through the night at any point was neglected or not attended to and i think to your point when it for nonviolent offenses are provided these hot spots so that they can buy items at a canteen to warm up soup to one or coffee and i understand it's it goes against our better judgment of you but  do you have any comment on the rule fifty four be issued other than say i i was looking through my file for the actual judgment to see if it contained the stock language that was required just has stock language doesn't have any explanation no we don't really have an opinion thank you your honor thank you for your the core please robert duncan on behalf of southern health partners judge moore you hit on the salient point in the case with a comment that you made where the assumption is that had mr medley gotten care and more timely manner the consequences would have been different and that was exactly the point we were making with the district court is you need proof of that you need to have evidence of that and there's there is no expert proof there is frankly even know why prove in this that had any of these individuals done anything differently that the consequences to mr medley would have been different well what i suppose i'm just making things up now he was in pain during this period and he was given ibuprofen or as if he were in the hospital he would presumably have been given more successful pain medicine presumably being the key word in your question there is a standard of care for medical providers you need expert proof to establish what that standard of care is is the standard of care for a patient in mr condition to be given ibuprofen which is what dr walbridge order or is that below the standard of care is it is the standard of care for a nurse who sees a patient who's been given ibuprofen and is not relieved to or request further or when she observed him sleeping was it appropriate for her to say the prescription is service or deliberate indifference cases we have a line of cases the blackmore line would say that some things are so obvious that you don't need to have an expert hundred three deliberate indifference do i understand that if we're dealing with negligence we are that's a diversity's state law we'd have to follow whatever kentucky is but you could hypothesize that somebody who's got a bad burn ibuprofen is just not going to work and that that a lay person can figure that out you don't need to have an expert to say that you could so let's jump to the delivered in different aldridge nurse ph dr walbridge are not defendants before you they were dismissed they were not appealed southern health partners is the entity before you on the deliberate indifference calling their judgments their decisions their determinations are not part of the deliberate indifference claim that was the negligence context so is southern health partners we say is there the objective component yes will concede that there is a serious substantial risk of  medical harm or a risk to mr medley so you go to the subjective did southern health partners the entity have knowledge of that substantial risk and in some way consciously disregarded with the course of said in order to have an into to do that we don't impute it's not respondent superior or we don't look to what the individual did we look to what the entity did and did that into t have a pattern a policy a custom a practice that shows that in some way consciously disregarded mr medleys conduct there is no evidence whatsoever in this case that southern health partners had any of those what the appellant has suggested to the court is that perhaps there was a practice or  a custom of southern health partners that the nurse would have to call the m t a first before calling the doctor that's what they've alleged in their brief even if that were true one you would have to show that the policy that somehow southern health partners consciously adopted in order to subject a prisoner to to an indifference level but secondly that's not what the nurse did in this case she called the doctor directly she didn't white to call the m t a she didn't wait to have any other direction she call the doctor not once but twice so there's no pattern no policy no custom here on the part of southern health partners and moreover there's there's actually a direct action by the nurse that suggest otherwise so we would suggest to you that the look deliberate indifference klein cannot stand against southern health partners as the district judge found and clarify then you are representing southern health partners as the end of the and none of your individual employees is the subject of this appeal that is correct i ask another clarifying question you in your brief are in me these tables are sl spent several pages talking about the state malpractise issue and whether whether expert evidence was required brecht and that the district court was correct in that regard but i'm wondering whether the other side is even arguing that on appeal are they they they have raised the issue and frankly i didn't know if it was because they are trying to get the state court claims reinstated on negligence or here because they believe as a fundamental building block on deliberate indifference you need to establish negligence and then gross negligence in that land in between gross negligence matter as not raising the issue i mean if it's just a matter of part of their deliberate indifference claim that's not the same as saying that the  medical malpractise claim is still being i thought he basically conceded or just a few minutes ago that he was not raising that climb agreed with you until he brought up the distinction between the testimony of nurse aldridge and dr walbridge as to what he knew and what he didn't know and he said he he would have done something differently and when he goes to that discussion it sounds like state court negligence kind to me i guess i'm just asking what's in his grades i guess so i think you've already answered that question i just wondered why you didn't think that he declined to raise it but you're just saying abundance of caution i suppose as an abundance of caution because the two can be intertwined they are separate and distinct i'd recognize that but to the extent that you talk about the allegations that support the deliberate indifference crying you could right versus taylor reckless disregard of a substantial risk of serious harm and then under wesley woefully inadequate care is tantamount to deliberate indifference sometime at two in the morning when there were no nurses at the jail she noticed that he was getting worse and she took pictures and then at five in the morning she called called the incoming nurse before she was even at the jail yet to tell i haven't a maid and it you do see now as for dr wachter ridge and these are all employees of southern health they're acting on behalf of southern health the same entity but southern health is trying to shield themselves away from well individuals make decisions not as a corporation now the doctor and his deposition he t unknown at six forty five that evening where you show me now i would have ordered him taken to the emergency room immediately not back right there shows that he recognized that oh yes at six forty five that evening he needed medical treatment out a facility higher than what was being provided jail as for his treatment and pain there were let's not forget the miss milly was complaining from the onset of pain level ten out of t ibuprofen obviously wasn't going to cut it we don't need an expert to tell you that we need somebody that has had paying at some point or lives to realize i'd be profer won't cut it when he was when he got to the e r they gave him some more powerful stuff that they can't give him at the jail because anything that's not kartik is not allowed at the jail they don't have those kind of facilities for that so and with that i think my time has stopped one question  it is possible easier for one of us to write this opinion to make to be clear i know the question i guess was answered before you were not raising on appeal state law malpractise is that correct other than as part of granted understand the question we were asking before is if you want to dismiss your claim which is up to you we will discuss it and perhaps go for dismissal i see and as the portion of your brief you can't appoint to where in your brief  of the federal law claims do you raise on appeal the dismissal of the state law claims it's not maybe substantially it's either yes or no but i did raise the issue of the state law claims which is where we brought our medical malpractise but not as part of any kind of a federal claim i was looking for the question but yes we did raise the issue of the state law claims dismissal i'm asking where you did that i believe it was issue number five