good morning your honor and mit please the court my name is nathan roberts and i represent the plaintiffs below the appellant's here and i'm going to endeavor to leave five minutes of my time remaining for a bottle given the complexity of issues that have been raised but i want to start by saying that in this case the evidence below any reasonable inferences from that evidence paint a textbook picture of deliberate indifference on behalf of the callous county jail or so and there are some contracting medical staff with regard to the three medical deaths that are still at issue on appeal we could go through calyx county's own medical records and on to witness statements from after the deaths and we discover a customer policy of jail or staff and medical subcontractors quote unquote monitoring the end mates to the point where their vital signs deteriorate they have objective symptoms of serious illness to the point that they can and cannot talk coherently can't speak that their stuporous they have temperatures of one hundred question about that of course you are and then you can't read this without understanding how serious it is  methamphetamine or heroin without those symptoms of withdrawal could be anything from mild to very extreme without necessarily implicating any other life threatening issues i would challenge the court a little bit on that medical assumption i think that mild withdrawal syndrome typically is not life threatening i believe it's known understood that serious withdrawal syndrome symptoms like those arguably exhibited by some of the plaintiffs in this case are known and understood to be life threatening so at the end of the day it doesn't matter whether the vomiting or the hundred two degree fever or the altered mental status or the inability to stand whether it's caused by traditional withdrawal syndrome or whether there's an infectious disease process going on as was quite obviously the case with mr bush who has diminished lung sounds in any event it's a serious medical need and that folks at the building maybe one hour a week or one or two hours every other week so some of the consulates are by phone but they do have physician oversight actually believe that's mandated by washington law the question is whether it was adequate and i would represent to the court to challenge the court to think about any one of us presumably without significant medical training in countering any one of these three individuals the day before they went into cardiac arrest in the case of jenny or else with a temperature of one hundred two degrees they've been persisting for two days she so weak that she's falling out of bed she's got jumbled speech and she's vomiting if one of us encountered that individual in the hallway outside of this court room laying on the tile floor it would be immediately obvious to us even in the absence of medical training that that was a serious medical need and that nine one one should be called i have a i have a question about that because at least under deliberate indifference standard leaving aside whether castro should change this construct there has to be a subject of deliberate indifference and as i understand the record jail staff well used that the inmates were faking it now that's hard to do if you see someone vomiting but if you just see someone as you said lying on the floor it could be you know someone who's angry someone who's tired someone who's just acting stupid and it wouldn't necessarily be someone who's you know so if they truly believed that the inmates were faking how can we reach the conclusion that there is to liberate indifference of a subjective nature we have to reach that conclusion your honor because the unrefuted objective data that those people had in front of them confirmed that the plaintiffs were not fit were not in fact faking that the symptomatology exhibited by all three of them cannot be replicated i cannot hide my poles from a certified blood in the mouth and that it come from a bite there's a subsequent report i think from later that day or the next day where the blood is visible in the back of the throat and it's attributed to having come from the lungs  able to answer your question if i can and to challenge the court a little bit and the defendant particularly if a subjective statement by a jailer that they believe the person was faking ended the constitutional inquiry that's all  person would ever have to say to stomp out an eighth amendment or for thirteenth amendment claim for failure to provide medical treatment if the subjective mistaken belief by a jailer that the prisoner is faking gets them off the hook there's no set of medical circumstances that could lead to a valid constitutional claim so it would be a closer question and a more interesting argument if those were the facts if we just had subjective symptomatology being reported by the patient for example time that clearly showed that he was not faking which makes their subjective statements that he was all the more incredible as well as the district court's conclusion in his order that there was evidence that he was faking and he died two days later well the result though doesn't equate to deliberate indifference that it's a terrible terrible result but just as merely saying well i thought they were faking it doesn't end acclaim just saying the result was terrible doesn't establish a co and so so the fact that these individuals died doesn't necessarily mean that there was a deliberate indifference that led to th of course not your honor but in terms of the policy and custom at the catalyst county jail all of these individuals had objective symptoms that would be concerning seriously concerning to anyone without medical training in the days leading up to their de mean with with mr bush there was he was sent to the e r for an x ray right and it did not show no manya i believe that was prior to his admission or contemporaneously with his some care to be sure of that they were being indifferent it does show some care your honor and that's i think where the district court judge got hung up here is that the law does not require a complete denial of medical care and we've cited the little pez case for that proposition from this court on bank opinion from two thousand it's not the complete denial of medical care that's at issue here ironically there were medical professionals who quote unquote continued to monitor each of these three individuals you're correct with mr bush that on the fifteenth you got a chest x ray before coming into the facility but right and they later sent him for a mental health evaluation because of their concern they had about detoxing and maybe that he was faking some of his symptoms so it is something that they were ignoring not completely your honor but on the eighteenth of january when he was noted to be sweating profusely again another thing that can't be contrived or fate  nothing was done his oxygen saturation levels had fallen to ninety two percent that's at the excerpts of the record three ninety eight and ninety one so this is three days after the chest x ray and another two days before he's going to go into cardiac arrest and particularly on nineteenth of january your honor he's screaming in pain because it hurts so badly for him to breathe and then when they listen to his lung sounds they notice that they're diminishing and he's got blood in the back of his throat i mean this is a gentleman who's in acute medical distress and the quote from the medical staff were providing quote unquote medical care is that they will continue to monitor him excerpts of the record three ninety two and that's exactly the pattern in practice the custom and policy that occurred here is that these medical staff were not trained to make diagnoses only to monitor would continue to monitor vital signs as they went down hill continue to document and continue to tell the non medical jail staff that everything was fine the only objective symptomatology that seem to trigger a referral to emergent medical attention and definitive care was the loss of a pulse in ms deals case her hers they had difficulty locating her pulse and that's what caused them to call nine one one with the other two they waited until my name is mark rosenberg i'm here on behalf of  we can just do it at seven and know that there's another half a minute that's ok stop it at thirty s ok that's right so i began please thank you your honors  three is affirmed the the appellant still have causes of action to prosecute we're here today only to determine whether the district court's dismissal on summary judgment of the section one thousand nine hundred three claims should be  deliberate indifference either subjective or objective either individual or mono claims appellant theories have been a moving target throughout the us they appear to have abandoned those arguments they made in the district court and they make new argument new theories with each brief they file in the court of appeals here the primary argument they appear to be making in their opening brief is basically the argument as i understand it is that the even under a subjective standard the manifestations of severe problems were such that one infer deliberate indifference from failing to come to the aid of these three individuals and as a as a factual matter it would be helpful to hear your response to that sure well i mean these cases the lopez case and other cases fairly i believe these are all failure to train cases no i'm asking about the individual current or are there no there are no individual defendant in fact that's right ok if you're just looking at the  right and con mad and in fact on page thirty and thirty eight of the appellant's brief they state that they didn't identify n d any individuals because the individual employees actions would quote would likely not rise to the level of deliberate indifference now this is a concession a concession that after extensive discovery the appellant's couldn't point to a single individual who had been deliberately indifferent it page thirty two of the opening riff they argue that there is an unwritten policy to prevent physician supervision of nursing staff this again is a concession it's a concession that after extensive discovery they couldn't find any written or express policy of the county or con mad that was deliberately indifferent is it your position that a policy has to be written down for it to constitute a power see for nine hundred eighty three purposes no your honor but here's the thing you do have to show that and this is in the castro case that they were fairly sure that and there's some specific language that the constitutional violation would take place here after extensive discovery and i think ten depositions or more there is no testimony from any corporate representative there was no thirty b six scheduled there was some policymakers who were to pose but their testimony has not been submitted either in the district court or in this court there's absolutely no evidence that anybody from con matter the county was aware of what the appellants are arguing right now nor is there any evidence that a health care provider received an unwritten policy from a policy maker or told a policy maker that there was some hypothetical policy at the jail there is simply no of it and so on which a motet among l claim can be based where you are today to determine whether the district court erred in granting summary judgment on the facts and evidence before it now there were six summary judgment motions filed in the district court con med and the county each filed a separate summary judgment as to the deal bush and burrell us parties that six summary judgments the plaintiffs  strategically i suppose to file one single brief they didn't even provided in their excerpts of record we provided it supplemental excerpts of record one forty three to one seventy two and most of that deals with  whether there is standing whether the negligence claim is met whether there is a non delegate will duty they committed only five pages to respond to six summary judgment motions that's  are one fifty nine to one sixty three and the only argument they made in those five page pages was that there was a pattern or practice that certain employees were labeling detoxing inmates as fakers vicariously liable for that if they thought their protocols were being followed so whether or not an objective standard is being used here all the one nine hundred three claims fail because there's no evidence either than an individual was deliberately indifferent or that there was a policy upon which one l could rest but beyond this case we would ask that the court not adopt an objective new or should have known negligence standard for deliberate indifference to medical needs and here's why there's a qualitative difference between kingsley and castro and the decisions needed to make medical decisions the body is a very complex thing and there are often various ways on which someone can diagnose or treat and you know in kingsley you had someone tasering an inmate question is do or don't in castro you had should you know protecting an inmate from abuse by another inmate do or don't here we have a wide variation and even negligence claims you need expert testimony as to what was  standard the majority didn't do that i concur with their result i think they should have used it the fifth circuit knew exactly what it was doing when it decided to use the subjective standard for medical reason for medical cases thank you my name is guy bugged on a bench and i represent cal it's county and jail director moran fox high who i will point out was sued only in her fishel capacity so as to calif county there also are no excuse me named individual defendants and i'm gonna try not to reply ground covered by mr rosenberg it's our position that the fundamental flaw with plaintiffs are the appellant's position on appeal in these cases is that they have completely failed to justify the shift in focus from what was in the district court briefing on summary judgment versus the new theories they've thrown out on appeal and their briefing there as mr rosenberg pointed out a single combined response to the six separate summary judgment motions filed below said this all three deaths involve people who were detox ing from drugs and or alcohol and in all three cases staff ignored worsening medic allegedly labeling each of faker and what the district court judge said in his summary judgment order is while there are a few instances where an entity may be liable in the absence of individual liability plaintiffs fail to identify how any of those exceptions apply to this case plaintiffs simply argue that because the injured were on the same detox protocol or in the same jail or seen by the same medical staff then the county or con med must be liable this is not the law and the district court judge was absolutely correct in that statement the other part of that quote from the district court order which appears that he or thirty two the other part that's very significance on appeal is he pointed out he acknowledged there are instances where you can't show that an individual const committed a constitutional violation but the minutes of polity that employs them itself can directly cause a constitutional violation the court acknowledged there are instances where that's possible but the court correctly said plaintiffs fail to identify how any of those exceptions apply to this case and again that is absolutely correct based on the record that was before the district court so that brings us to what i think was accurately characterized by mr rosenberg as a moving target on appeal because what appellants did on appeal then is a quote defendant's cowlitz and con med adopted an unwritten policy of restricting inmates medical access to nursing staff rather than a physician even if a physician was indispensable to diagnosing and treating the medical problems and it seems like the court has picked up on the fact that there was an abundance of medical attention given each of these three inmates there is no evidence that there there was some other lawful requirement to have certain different staffing levels of physician time versus nursing time in his city if there are live negligence there's not a negligence claim accepting and conmen current is that right or is there there is there are remaining negligence claims against the county and conmen ok that when that when the court granted when the court out that the alleged policy was different in the district court and here what has the effect of that alteration if it is one  analysis well i guess first and foremost from our perspective it is an issue that wasn't raised below shouldn't be considered on appeal and that's why we think it's really significant that they totally abandoned the whole theory that they presented to that federal district court judge their theory and they even the said in their summary judgment motion you'll recall that there is part of this appeal they were appealing the fact that the judge denied motions to continue the summary judgment motions which were filed on the eve of the dispositive motion deadlines they were saying we need more time one of the things they said in their combined response to summary judgment below is once depositions of the jail director and front line medical staff are done plaintiffs will be able to identify with specificity and name the individual medical providers whose indifference causes these deaths we know that never happened and on appeal they have expressly conceded multiple times we will never be able to prove they claim it's because of this for radek and brief interactions but they had meant we will never be able to prove him to prove any individual violated a constitutional right and this this is very important we're not just talking a difference in semantics when you're talking about individual liability and municipal liability it's a whole different level of proof you have to meet to establish municipal liability and that's why it's so important the court requires you focus on you show us what the policy is number one show us a policy that by itself cause a violation of any of these inmates constitutional rights and then beyond that the appellants have to show that that policy was adopted through deliberate indifference and that's why we think they the  have failed on both of those prongs of what they now admit is being presented to this court which is purely a stand alone municipal liability claim so if i guess that that i think that essentially covers our position on it if the court has any other questions i don't believe that we do thank you thank you the arguments of the plaintiff appellants have not shifted in any way and that's evident from the record well so your opening brief refers to the custom as an unwritten policy of restricting inmate medical access to nursing staff rather than a physician and when you get to the reply brief you go back to what you said earlier which is the custom is denying meaningful medical care to detox ing inmates by labeling them as fakers and then ignoring their symptoms until it's too late those seem like very different claims to me one has to do with a policy of who is doing the medical care the other is how is the medical care being provided and whether detoxing  her taken seriously or not and i don't know whether it makes any difference but that's my question to you does it matter to are now also see if we use the theory that you had at the district was the intent of our opening brief to explain that that's why that's why it occurred your honor that the there was no meaningful oversight in that jail by a physician and as a result all the symptomatology was discounted but no physician access is a separate thing that has nothing to do with detoxing were faking or anything if there is a policy that all we have are her poorly trained low level people and we don't bother with doctors that really seems like a different theory and i guess i don't know whether matters that it's different it doesn't matter your honor because this case was supposed to go to the jury and the jury could have reasonably found whatever policy was articulated at trial it could been a number of the could and one of them well that for purposes of assessing whether the district court was correct or not granting summary judgment are we supposed to limit ourselves to what was said in the district court even if  court chooses to do so there was evidence and there was a policy in practice that should have gone to the jury we submitted affidavits from a physic to physicians and a nurse with corrections experience and without saying that each one of these individuals instead of being labeled a faker should have been seen by a physician and that any competent physician looking at any of the three of them would have realized that they were in acute medical distress and provided basic interventions so those that was the and the failure of the policy and custom of not bringing in a physician of labeling them fakers and denying them access to someone who could make a diagnosis was enough more than enough on this record for the court to say these are genuine issues of fact for a jury does that answer the court's question well it answers i'm not sure whether i agree with it but i understand your answer ok but the the the moving target really here has been the defense arguments and if you look at the supplemental expert's excerpts of the records for example the callous county briefs on summary judgment it wasn't contested that there was a serious medical need or that even that group liability as the plants were clearly relying on a motel theory and hadn't identified individual persons there was no argument that that theory was somehow legally invalid calyx county argued that there was no constitutional violation so they took the care in aggregate and said to the district court look we've met our burden of six so the argument hasn't shifted it's consistently been a mon el theory directly against the county for its policy or practice of denying meaningful medical care to these folks and the record is rife with its truck full of statements of both objective and subjective knowledge on the part of calif county employees and their subcontractors that these folks were in serious medical distress we had expert testimony saying that they needed to be seen by a physician and they obviously needed to be seen by a physician and had they done so they would be alive today and we wouldn't be here but that's the closing argument i should have been entitled to make to a jury in the district court there were issues of fact and reasonable inferences are favor that weren't drawn so we're asking for reversal and remained so that the