thank you your honor may it please the court if i could i'd like to reserve five minutes of my time for a bottle there are a handful of factors that this court has repeatedly said weigh heavily in favor of recruiting appointed counsel they don't per se require it but they favor it very strongly to the claims involved complicated medical issues to the claims require proof of the defendant's state of mind like deliberate indifference is the case past the pleading station in the summary judgment where he start to need things like testimonial discovery is it harder for the plaintiff to gather evidence because of a transfer to a different prison facility or confinement a segregation it is the plaintiff mentally ill those are the boxes and mr perry's claims check all of them but the district court didn't look at any of what you got three good perry wanted he could not get there i think at least two main types are on a one his deposition discovery both from the defendants and from some non party witnesses mr perry submitted a request for you know assistance issuing some subpoenas and seemingly not aware that he could notice the depositions of party defendants without a subpoena  and there he had requested some other some witnesses from the city where he was confined and i think it is systems of counsel and the counsel would probably pursue depositions from some other folks namely the medical personnel honor that is in his summary judgment falling below that he says that the held also used in the record it's written above the other medications which are written on the line in the storm and mr perry says that when he signed the form held all was not on the form so he says he did not consent at any time to being treated with held all i do not have i apologize i don't have the exact numbers are on earth i can i can look those up and submit a supplement after the earth that would be helpful but i don't want to i don't want to speculate or get a that is it's not in the record your honor but to the best of my knowledge he is not you know believe he may have taken some other entire psychotic kind of anti paranoia medications including that she had done that he had taken a little bit wild assed alley but the best of my knowledge he is not currently taking held on there is not so there was an alternative injection a bull anti psychotic other than held down there was certainly an alternative anti psychotic in the geodon medication that he had taken before and i believe has taken since i don't know if it's injectable or if it's strictly administered orally you know if it were apologize drawn out much more effectively than mr perry was able to on summary judgment that his medical records for most of the spring and summer of two thousand and sixteen show that he was functioning well and they report him as call me pleasant organized rational not paranoid not shirking any suicidal plans or ideation and all the sudden there is a rapid shift in that in august around the time that the forcible medication treatment was st administered but previous to that kind of a rapid shift it appears from the record that he was taking the geodon and it was effectively managing his sometimes and i think that again that's and one of the fundamental errors one of the points that the district court did not consider is the procedural complexity of opposing a summary judgment motion in summary judgment as it is in evidence it's not an allegations motion it's not just what are the facts it's how do you prove them and mr perry really struggled and was not able to effectively gather the evidence that would have led him most effectively oppose that motion and even with the limited evidence he did have he was not able to put it together in an effective and persuasive way and to draw out for the court that there is legally sufficient evidence of the record that he has an allergy to held all that he experienced symptoms consistent with an allergy after being administered the medication in the fall of two thousand and seventeen and that when he got to newcastle in the winter of two thousand and seventeen they took the evidence the record that the treaty triggers it was last valley disregarded and that the medical record that the district court said constituted no evidence of analogy and his medical providers at newcastle said that's absolutely evidence of an allergy we're suspending the treatment of held all immediately instead of a card that have been sorry no i want to share an impression with you and you can push back on it right invite you to the kind of topline thematic point that you're making has a lot of appeal given given mr perry's mental illness in the gravity of the mental illness how in the world is he capable of representing himself in  matter like this but one of the things that has concerned me in preparing for the case is when i actually look at his final eans and everybody says there's no contest that you know the handwritten documents there that he submitted that he wrote i'm nobody's contending they were ghostwritten or anything like that and when i look in particular at his summary judgment briefing filed on july the th of two thousand and eighteen document and sixty eight it is remarkably impressive he's not only talking about the correct legal standards he's doing so with pinpoint citations  to that to the actual governing precedent he's describing his own situation the mental illness that he suffers from and his concern about an allergy to held all in clear  precise terms and i would say well beyond that which our court tends to see in pro se submissions and so how is that not evidence of what the district court was finding in her orders to nine him counsel because she made plain reference to having reviewed the submissions in the case in so that's when i tried to do preparing for today and i've got i got to tell you he's quite able to articulate his positions i think i would agree with that that the briefing the legal argument is put together better than average for a pro se litigant but you know as this court has said in many of its opinions you know attorney argument argument in a breeze is not evidence and that was where he ran aground at summary judgment he could he did not introduce you think that reference a moment ago number one there was evidence in the record that he could have used and did not he does he cited to some of the medical records but in even a test of his motion right it wasn't until the defendant's moved that that evidence even made it into the record so he really didn't have the capability needed on summary judgment is that one of the bullets in his biggest factual the biggest factual difficulty in the hand that you've been dealt is that the medical the medical evidence does not seem to support his belief in an allergy to help all i have a hard time breathing when i take how the that's it page seventy six of documentary one hundred and seventy five dash to dr birch in his affidavit says difficulty breathing is a symptom of an allergy to help all we agree with that in a few weeks later on standard requires it to be there is legally sufficient evidence of his allergy to help all where a appointed counsel committed differences that evidence could have been much stronger with either expert testimony of counsel could recruit an expert willing to work pro bono or with the deposition the treating physician from newcastle the one who looked at those records and said i am discontinuing held all effective immediately based on what i see in these medical records so the evidence is either in the record or it could have been with the assistance of counsel and again just  d i don't disagree with your reading of the you know lucidity of some of his violence there are some you know that don't paint him in as good of a light you know doc injury one hundred and fifty five where he describes the global conspiracy to poison him you know there are a few others that i think manifest that he does suffer from medical paranoia and that did it times interfere with his ability to litigate the case but really where the rubber meets the road for him is not with filing briefs it's marshalling evidence and you know i think tight several cases from this court in particular the pedal well vs paris she was right but whether it was reasonable based on what she knew if you record in order reversed judgment a sense in this court must find that she abused that discretion and that that abuse was prejudiced the plaintiff meaning there was a reasonable likelihood that counsel would have alter the outcome of this case where in the record from the district court can we see that the district court explicitly considered the complexity of exhaustion so there is the st instance where she references the stage of the litigation your honor and then if we look at her next entry in which she denies playing us we'll call them his rd and th motions  choose not mention the current some additional stage here but i believe he does check most of the boxes that counsel was referring to as far as the state of mind as far as his mental capabilities and those issues that should be addressed by the district court so if we take a closer look at those i think it's pretty clear that in his st motion to appoint counsel mr perry simply fails to meet the st prong under pruitt he doesn't explain what efforts he took to obtain counsel and zone so his motion is dismissed out of hand if we look at a nd motion to appoint counsel that's the one that's filed while the summary judgment motion on exhaustion is pending by the defendants in that motion mr perry concedes that he's obtained his ged he says he has no difficulty reading or writing you also states he has no physical or mental health issues in his own motion he says he's had no help with the case judge mathis tencent reviews it under perry under pruitt excuse me she concludes that he's made a reasonable effort to obtain with the factual circumstances surrounding his attempts to exhaust is initiated remedies at this point she doesn't close the door to further counsel down the road but just decides that at this point it's not warranted and again even if this court found that she abuse discretion there have to be a finding of prejudice to mr perry mr perry defeated the finnish motion for summary judgment on exhaustion on his own so clearly there was no prejudice at this point because he could have had a better outcome than defeating the fence on motion and as relevant case law he analyzes the elements of a motion to appoint counsel and strives why he believes they way in his favor you talked about some of the challenges in the prison in the prison but that's not unique to mr perry being an incarcerated  and nd at the time for order mr perry had already filed his own summary judgment motion so at the time judge my position to judge magnificent issues her order she had the benefit of understanding his knowledge and grasp of the facts as he presented them in his twenty page summary judgment motion just one month prior and she states in her entry that she took a review of the record that was in the record she discusses ensign references that and she's that's when she states that a review of the record indicates that he has been able to produce claims in arguments coherently which speaks to his competence as mental ability she also notes again that he was able to feel a summary judgment motion on his own attorney would have made mr perry's life easier of course what that's not the test if it were every pro se litigant would have an attorney there just aren't that there aren't enough out there and it doesn't meet the requirement here so what would there have been a reasonable likelihood that a counsel would change the outcome in this case and the answer here is simply no counsel would not change the fact that an independent treatment committee decided it was in mr perry's best interest to administer how it all against his will based on his repeated threats of self harm paranoia potential for harm to others is refusals to eat and his refusal to take his oral and eye psychotic medications leading up to the hearing council would not change the fact that the treatment committee was aware and mr perry had a list  of how it all and that when they asked him about it at the hearing he described what they believed to be more likely side effects versus allergic reaction council would not change the fact that the treatment committee ordered benadryl along with the how at all to counteract any potential allergy or side effects from the medication mr perry also contend is in this brief reply brief that counsel is necessary in cases of the liberal difference where the defendant subject a state of mind is relevant and it's difficult for to figure that out without depositions but that's not the case here we've got the treatment committee report which mr perry had access to his medical records typically in records we may see a physician orders a medication or orders something else but we don't know why they do it here we have a treatment committee report that details why they believed mr perry required medication why they believed it was in his best interest mr perry did not meet counsel to figure that out it was provided to him in the record correct your honor correct and there's additional put in the record that i think it kind of waxes and wanes to where he says yeah you know i think it was helping that time he says no i don't think it was helping so it was kind of a up and down scale but i don't think the purpose your honor of the injection was to quote cure him of his mental illness unfortunately that i i don't see it getting better i saw august th agitated th paranoid complaining of side effects of kember their kid suicidal twenty for st irritable paranoid anxious suicidal significant psychotic symptoms december th paranoid increasing perry has mental health issues that will not be cured by an injection the injection was meant to to deal with that i keep acute issue of psychosis in mid august that in sixteen when his providers felt he was really spiraling he was on a downward trend and they thought he was suicidal so again that the injection was not there to two sure mr perry it was their star prevent him from harming himself or others and as we see he does not harm himself or others after the fact so to a degree yes the injection was actually successful the injections were successful in keeping him from actually harming himself or others do they prevent him from feel having these thoughts no unfortunately i don't think there is any medication that is going to shear him from those thoughts and physically but the goal in the hope is to reduce the frequency of those thoughts and concerns your honor if we move on and talk about mr perry's due process claim to the here in itself his medical interest mr perry is a diagnosis of paranoid personality disorder anti social personality disorder anxiety and depression and the record establishes and mr perry concedes in the record that he was non compliant with his medications and he exhibited harm just one month prior to the committee hearing in july on july th and sixteen mr perry smith a health care request in which he stated he fights suicide daily the day before on july th again about one month before this hearing mr perry's mother called dr simms of the prison and reported that her son had written a letter to her saying that he was going to kill himself if not get in protective custody is mother explained how he had been talking to people not there and had these symptoms since he was sixteen or seventeen years old in june of two thousand and sixteen just two months before the involuntary medication hearing mr perry told his psychiatry's dr birch that he does not take his voluntary medications ninety six percent of the time on psychotic symptoms were significant and worse than that time so this is an acute episode we're talking about here and that's where his paranoia there's talk about well was it founder unfounded that's not really material because it was his potential to harm himself or others from that paranoia that was concerning therefore judge van stinson a probably concluded that based on the designated evidence the decision to involuntary medicate mr perry was in his best interest as far as the impartial review  therefore his that committee was impartial and to quickly get i've meant here to talk about his alleged allergy to help all think the real issue is not whether he had an allergic reaction versus a side effect the issue is whether the decision initially to elegy they spoke to mr perry about it at the hearing they documented mr perry statements about why he believed he was allergic to it but his muscles locking up shortness of breath they made a reasoned medical determination that what he was describing was most likely side effects versus a true allergy as a true allergy to how it all is very rare also in abundance of caution they prescribe benadryl along with the how to counteract any potential allergic reaction so if these steps leading up to the decision that need to be considered when deciding whether those actions were deliberate indifference not whether or not mr perry subsequent reaction to the medication i think overall conclude your arse the business case for proactive in their care of mr perry instead of sitting idly by and waiting for him self to harm himself or others they took action that was reasonable and appropriate and i think that's laid borne out by the fact that he does not harm himself or hurt others and i believe jane that instance and apply the correct standards and that her decisions should be affirmed thank you very much eli case i think says it best that it's an abuse of discretion for the district court to fail to consider all the relevant factors the relevant factors here are the ones that mr perry raised in his motions to appoint counsel and those that this court has identified in its case law as requiring consideration by the district court and james vs your lies really factually almost on all fours with this case it was at the summary judgment stage that the inmate has been transferred to a new facility the claims involved proof of state of mind there were complicated medical issues argument i'd like to point the court to the santiago case that it's which says it's an abuse of discretion for the district court not to come to grips with the difference between facts and evidence the history here is going to understand the facts of his claim does not mean that he the that evidence in the record so he's been in newcastle for a while now it's my understanding there's only evidence on some of that time he has done better at newcastle it's a medical facility to treat people with with you know serious stabilized and then will be transferred back out to a kind of all purpose sort of general facility that's my best understanding but i don't think that's on the record the other point i want to just draw the court's attention to quickly is you know th he's not here today mr because his whole argument is that mr perry proved to fail to prove his personal involvement and i think we don't dispute that that on this record that proof is not there mr perry pointed to that factors pacifically in his rd motion to appoint counsel he said there's a large number of defendants here that raises questions of sufficient personal involvement as paragraph six page thirty nine of the required supplemental appendix he identified the issue that he ended up being unable to prove against one of the defendants asked the court to appoint counsel to help him on that issue the court did not address that issue that's the kind of oversight that this court has held is an abuse of discretion the nd point i want to response to briefly is the resolution of the nd the st motion for summary judgment on exhaustion i think that really proves the point that mr period defeated that motion literally by using a single document that was the evidence that was sufficient to defeat exhaustion because he put in a grievance form that said if you've done enough you can take your appeal that w it is just a summary judgment or not we look at the complexities involved in the underlying issues i think the rd point unprejudiced a like to make the basic point is that mr perry needed additional discovery that apple is kind of putting him in a double bind her on the one hand they say we've got everything you need if you have the documents on the other hand the argument they made to the district court which she accepted was disregard what's in the documents he made up the allergy it's not real it's no evidence of analogy in the court credited so they're saying he had all the discovery he needed but when he submitted it they said it was no evidence so he needed an opportunity to have a lawyer who could go retain a medical expert to rebut the story plus seven o two affidavits that they submitted on summary judgment he should've been able to pose a defendant's he needed be given a chance to reopen discovery pursue additional evidence to support those claims we appreciate the court's time this morning thank you ok very well mr crandall thanks to you mr falconer same to you and i know that you took this case on appointment you have the special thanks to the court to you and your firm and you've done a fine job for your client so with that the case is taken under advisement