good morning your honor laura rush on behalf of appellant joel thinly please the court this case is about an inmate who suffered a prolonged and serious pain following oral surgery to extract an infected impacted wisdom to summary judgment should not have been granted when the evidence but well showed tooth number three argument is that is that parker visited finley in his so in his cell on march twenty seventh two thousand and one but she was accompanied by dr mark katz and dr marquez is not a defendant in this case he's the dentist and he seems to have been there the entire time they gave your client an option to have the two thought either removed or wait for a thrilling and truly decided against removing the tooth and marcus gave him some pain relief and then later on it was marcus who was involved in rescheduling some teeth work so how does parker come in for deliberate indifference when it looks like dr marcus was the one who was really making the key decisions your honor i think the record below shows that it was  who apparently informed my client that he had the choice of having the tooth extracted if you wanted immediate treatment when he was initially seen for pete's number three it was by dr martinez who is the dentist for prison yard to be she suggested that he should receive treatment for the tooth and that the tooth need not be struck dead he then proceeded to present himself to the dental stick call at the president on two separate occasions following the visit with the doctor dentist in march one that was calling the shots in that respect even though dr mark is actually the treatment judge shader that is what the record reflects below he submitted evidence that it was that it was miss parker who informed him that if you wanted immediate treatment his only option was to have the tooth extracted was the dentist standing right there at the time it appears to be the case around and then the dentist gave him pain medication the record shows that he received a handful of pain pals that was in march he didn't  the deliberate indifference to mean something not just you know not even just indifference or negligence it means that you really have a sort of a very culpable state of mind and it looks to me on this too that it was just the usual  is it's got to be more than negligence and as i understand the case law the lay is not enough unless the delay causes harm what factual evidence do i have there's harm your hon extracted and that he received antibiotics leading up to you and at the time of the surgery he then proceeded to visit the car which is the emergency room for the president and five separate occasions which i think strongly suggests that he was in real pain and that to have to suffer that pain over the course of nine months is substantial harm well as i understand that there are two real problems that we have are two real issues that you have to meet one is that you saw us show a serious medical need failure to treat could result in that one i mean pain could involve that however the second part is that there's some kind of a purposeful act or failure to respond that may be where you're going causing harm to the person my worry was trying to find facts that say harm i mean there's a lot of us who hate dentists a lot of us who don't want to go to the dentist and we don't go even though we might have some problems with our teeth but the harm caused is the problem here i think under it's meth the case on the circuit holds that simply experiencing pain is enough to constitute a serious dental need and that it is not incumbent upon a party to prove an actual dental our medical condition only a possible one i think that the evidence below clearly established that he was in pain and that he had at least a possible dental need following the oral surgery  well the question is then the application of the standard review and certainly negligence was not enough and under farm reversed brennan it's got to be somewhat equivalent to criminal reckless pain over the course of nine months i think that that satisfies the standard under mcguckin versus method of pain or a possible medical need and to withstand summary judgment all he needed to show was that there was a genuine dispute regarding his pain or possible medical need he did not have to establish in fact that he had pain or fear or you know there's another way of measuring this after the summary judgment cases came down a number of years ago this was quite a while sandra day o'connor came  court and she was asked whether the supreme court really meant it when the supreme court said in the trilogy of cases we want the trial judges to be able to knock cases out of the box before they waste a lot of time with the jury trials on cases that really aren't going on and she said yes she said we expect the district court judges to take a look at the facts and if the facts are such viewed in the light most favorable to the plaintiff for example that assuming all of those are proved in a jury trial that you district court judge are then going to clock it out because it's not supported by sufficient facts get rid of it early so it's not just is there a dispute it's whether these facts would support a verdict in favor of the plate of us what she told us and these you think these facts would support a verdict of deliberate indifference in favor of this planet your honor i do the facts below the evidence below is that after being denied a treatment for nine months when mr finley finally was seen by a dentist if fragment was found lodged in his gum i think having oral surgery for an infected impacted wisdom tooth and then suffering with no treatment and no access to medical care for nine months only to then learn that there is in fact a fragment left behind constitutes the kind of harm that that reaches the level of a constant let's let's suppose you're right for the sake of argument what supports the idea that parker was deliberately and different simply the delay in putting this off is that it i think it's training him away from the sick call on five separate occasions when it was her admitted responsibility to ensure that he was seen by a dentist that day and that he received pain treatment and that on five different occasions she refused to do that coupled with her taunting him and saying tell us about the time to you out of the tontine apparently involved her saying that she herself had had wisdom teeth extracted that it was normal to be experiencing pain and that the reason he couldn't handle it was that he was the man and that that's the reason god made women to have babies is because men can't handle pain that's amusing just that she was being callous in her treatment and deliberately refusing treatment for reasons other than a qualified assessment so man up and tough it out yes your honor for women women up and tough it out as the case may be counselor there is something that happens in most negligence cases in the district courts where and that is that when the jury hears the situation that one has been injured and they hear about that situation and then nobody ever goes to the doctor or even calls for a doctor or even initiate a sick call the jury has a tendency to disbelieve that there's too much problem in this instance doesn't this indicate that parker had not even asked for any sick call as to this plane you're on the record below the prison dental records show that he appeared on five separate occasions irrespective of what  records documentary records in the records showing that he appeared on five separate occasions and i think the reason that she says there is no record of him complaining of pain is because she kept turning him away and so he never got to see a doctor to complain hey doc i'm in pain there is a standard form is it not that he was to have submitted yes around and there are five of those in the record fourteen month period eleven times through both this to call and through the routine dental care systems and for ten of these months mr parker was the one who got him all this care it's hard to believe that equals deliberate indifference of counsel when you say hard to believe you know that's that of course is the reason that we have juries when you come to the question whether it's hard to believe aren't we require complaint of well your honor as the serious medical need as to number thirty two i believe we're talking about the only evidence the mr finlay has that there was a sued for and she's a gatekeeper you don't appear to be able to go anywhere without parker's approval if you listen to those i mean she's she's like the air traffic controller nobody lands without the without parker's involvement it appears says you can't see the lawyer and therefore deprives the person of the opportunity to get into court right well she did allow him to see the dentist in fact he did see the dentis eleven times in fourteen months ten of those on her other things that i believe the record shows that i'm he saw the dentist or to number thirty two in november and december so she did facilitate that and the medical records don't show that there was any problem with tooth number thirty two so just this point is that how can she develop the requisite mental state if upon review of the records there's nothing wrong with she's number thirty two well what happened with thirty two finally when they got around to taking care of it what did they discover there was nothing to discover it had been fully extracted by riverside what do you make of these statements you know tough it out that's why you men can't handle pain in the middle of all of this when she keeps denying him the opportunity to see a dentist well in her declaration she denies it but let's put that aside y assume she did that then well we don't want that to happen we wouldn't want that to happen why not because it shows a state of mind that you don't want medical professionals dealing with people in pain i'm sure if you went to a  male doctor for example and the doctor said something like this to you hey tough it out big you know i mean what's the matter with you women you want to fight in wars when you can't take a little tooth pain you go back to that person well you might not w don't get any pain medication and you don't get to see the doctor he did receive payment medication over and over again he was he was seeing out of funds to call a number of times just from november two thousand to march two thousand  she can't prescribe she has limited authority so she won't let him see the person who can prescribe i would say that the record actually reflects that he was seen he was on continuing care by dentist she has limited authority how can she cause the pain or make it go away she can't all she can do is write down appointments and she can't and she can't even move the appointments up and if you can even move around the appointments there appears to be no deliberate indifference she's she's getting him in there mirror and began looking at the area then she took her other hand and with her finger pulled out what are my jaw at this point she found a tooth for a log in the state area informing me of what she had found a procedure to take it out using tweezers so that tooth raggatt was in there during all the time he was complaining of pain asking to see the dentist and asking for pain medication even if that's true i thought i was getting out earlier the tooth fragment was still in there from the extraction and that seems to have been causing the pain so this is not a case of phantom pain there was a fragment left over even if that's true mr parker all she can do is look at the medical records look at him and sign him up for appointments which he's you probably have a slam dunk case if she hadn't told him that funny off the cuff you know tough it out statement you know going to be a pain medication you know get to see the dentist and then months later they find a fragment lodged in there well although that may be the unfortunate statement she still got him care if she did and i appreciate that we're on a summary judgment with a higher standard of care but as i ask counsel he had applied for care at least five times during this period that may not have been something if one is really in trouble one every day not waiting months or even weeks before one of those something else in order cry do something about it which might lead to the harm problem but we're on summary judgment he said he's asked for this at least five times and then asking for this to five times not only that he has received nothing and she finds this chip afterwards now isn't that enough to meet the summary judgment standard that's the problem we have here equal deliberate indifference where does it say she had no ability to go into the dentist and say hey i got somebody in there who's so if he's in a lot of pain and he's had an extraction and we run into the for front of the line she's not allowed to do something like that like very quickly your honor he was not seen a lot of times during the relevant time frame four of those visits preceded his having the tooth extracted and five of them involved treatment or post dated when he finally received treatment he was seen twice during the nine month period with respect to what happened with number two or thirty two and whether there was a fragment or not you can reach the conclusion that there was not a fragment only by disregarding his testimony on summary judgment that is inappropriate credibility all right pat case number all five five six five three one family versus parker is now submitted