morning your honor signing a stare at turner i'm a deputy attorney general for the state of california and i represent the appellate the health care manager at pelican bay state prison dr winslow and we're asking the court to reverse the district court qualified immunity as to this individual in deciding a case on qualified immunity the supreme court and so ca versus katz requires an analysis and two questions and that they need made in sequence first taken in the light most health care manager he's not a treating physician you know that they came to him for authorization for the bio he never did they never came to him for authorization they never brought requested authorization from dr winslow that is what you do when you want to surgical procedure done which would have been a liver biopsy and in fact dr winslow was not aware of this case and till the lawsuit was served and then i at and then also then i asked him after that which has very serious side effects one of them being depression and prior to that time he was very non compliant with his psychiatric medications he regularly refused to see any environment in any medical officer our h m o or p p o you need to request the surgical procedure be done it's actually requires anesthesia and none of them requested it until dr wolfe did in the beginning of form and by two thousand and three over nine hundred people have been given a liver biopsy as a pelican bay state prison hepatitis c is very prevalent in a prison environment over forty percent of the prisoners in california  on the hepatitis c protocol or guidelines says that there are some exclusion and some inclusion criteria one of the inclusion criteria and and the inclusion criteria if any of them are missing then then they would have you know then there would then he would not be a candidate for that particular treatment which was a very poor treatment with very bad side effects this is all we knew in one nine hundred ninety eight and two up to two thousand the good medication is out there now and he's received it he's actually received it twice to our opportunities so it's a peg alighted interferon with rifle fir surgical intervention but what happened to mr tatum once he left the prison actually has his numbers has a l t which is a very important protein that they look at in these blood tests stabilized so he did get the liver biopsy actually you know honestly i don't know he was on a list for a liver biopsy and he was his turn to come up and he was gone out of the prison by the time his turn came up he left in august of two thousand  guidelines the guidelines are subject to the constitution and the idea is that a person a prisoner if cannot be unduly delayed under i think it's gamble versus the  timeliness requirements of a stone versus requiring more well you know honestly if he were to have if he was approved at the end of january january thirtieth even if they could have have gotten him into six week were indifferent to him but you knew of and disregarded an excessive risk of harm that's farmer versus brennan and parroted by this court in austin versus tribune if you don't know that there's an excessive risk of harm to him you certainly can't deliberate over that and be indifferent there is no excessive risk of harm as not having a liver biopsy if he had his liver biopsy when he did it and he started medication there wouldn't be any point in giving a liver  and people are not getting timely stories and without any attention or malice toward a particular person or the doctor's right up people with the kind of injuries to get are three four and you know perfectly well they're not g well if you're getting to me an expertise in different types of the tests to see if you need an x ray to determine whether or not you have a broken like he doesn't need an x ray he doesn't need a liver biopsy to determine whether or not he has hepatitis c he what that would tell him if he had for that he was he didn't have it what that test tells them is how long to keep him on medication that's what they're using the biopsy for he'll be on the medication for across mainly a year or six months if it is a different pegylated interferon which was still the top of the line it's got about a forty percent response rate might be able to clear the virus this  whether or not a prison official was deliberately indifferent we have to look at whether or not the what qualified immunity does i mean dr winslow's the health care manager who works extremely bay have the virus has together these various protocols and guidelines which are now which judge henderson approved john hagar the special master  but i don't know if that's true that's just my speculation i know doctor but as i understand it through study this please hi i am i have and have otitis me is generally contract it through and test to needles i v needle thor on defendants behalf as the district court noted it's not unreasonable to infer that dr winslow would have reviewed the actions taken on his behalf upon his return even if the especial documents were signed by others that  minimum dr winston was required to comply with the madrid approved pelican bay guidelines under the nine hundred ninety eight and two thousand guidelines and liver biopsy is the gateway to all treatment only liver biopsy reveals the stage of the to record one seventeen one fifty seven and are explained in part at paragraph twelve at one fourteen and paragraph twelve at one forty seven the absence of inclusion criteria or the presen can refer the case to the and they are committees for review here no physician referred to and they are committee because it wasn't necessary because mr tatum had each of the inclusion criteria and none of the  prerequisite to liver biopsy or to treatment third mr tatum had good compliance with his medications there is there is a form after form filled out that his compliance with medications was good when he failed to take medications he consulted with his psychiatry and with his physicians to say listen i'm concerned about my liver i don't want these medications to harm my liver is it ok if i don't take them and they said absolutely until we figure out what's going on with your liver you show that there's an issue of fair work with the guidelines require yes yes that's right and but we can go one step further than that and i think that we do actually show that in the on an issue of trying to get a summary judgment from your side that's right and her grabs the right eyes at least i think that women record comes to us on the denial of a summary judgment we're not really in a position to really think about what's the real truth how will the people terminate the trial all we really can think about on the record we get is whether there's an issue of fact that requires the crown i think you're absolutely right and here it's clear that there is an issue of fact there in harris becoming a county it was determined that the failure to administer necessary diagnostic tests maybe deliver deliberate indifference and i think that goes to a question that judge kleinfeld had earlier thank you very much but you can about the new drug that was coming that had a far better success rate this one drug was it was a ten percent response rate and it was you have very serious side effects all the doctors were waiting for this new drug to come out and to come to them and his name was on a q it wasn't it wasn't crossed out but it's evidence from that that he didn't he wasn't even the health care manager at the time somebody was acting yes two to forty six to two forty  response but yes i think it's a summary judgment you have to go to the second prong the second prong of qualified immunity given the fact that dr winslow it's working with the special master working with the court they have the tightest guidelines now have become the model for the rest of this state heat on your anderson cre the type of person that would get qualified immunity and there is no issue as to deliberate indifference he didn't have the information so he didn't i thank you counsel thank you