regarding a failure to provide medical care to a pretrial detainee appellant is asking the court to reverse summary judgment remand the case for trial i've reserved three minutes for rebuttal at its most fundamental the district court erred by failing to construe the facts in plaintiff's favor the court went so far as to ignore the fact that bruce cunningham suffered an alcohol withdrawal studer after seventeen hours of unmonitored an untreated detox and the clark county jails drunk tank it accomplished this by disregarding all of the medical proof and excluding the experts testimony that was tender that expert depositions would not be completed until after the summary judgment good legs had passed did you object no your honor the initial case management plan was based on the court's suggested deadlines that are set forth in its local rules the issue in this case came with multiple problems whatever information was available and as a result of that at the end of the day in order not to continue to exacerbate the court and the court's desire to keep the case on schedule we did request further extensions of the discovery deadline just by the dispositive motions and the fact that experts had not been fully fully that it was late in which those depositions that were going to take place or the did take place after the summary judgment deadline those were defense depositions right two depositions were of the plaintiff's experts and one deposition was of the defendant's expert and that  that creates one of plaintiff's issues on appeal which was so it's my question with that is that was it was it your view that in the depositions that defense counsel was going to take mr cunningham's experts that are you planned to affirmatively use some of the testimony that you may have expected from those depositions to  summary judgment motion no your honor is our position that the expert reports that were tendered with the summary judgment motion were sufficient evidence to support the plaintiff's position on summary judgment  it is our position further that the two thousand and ten amendments to the civil rules particularly rule five thousand and sixty dollars allows for a broad scope of evidence to be considered by a court at summary judgment and there is no requirement that every evidence every piece of evidence is presented in a format that is necessarily admissible in court as long as the content would be admissible and there has been no adjudication on whether the rule seventy two dollars prohibits any of the expert testimony that was tendered in fact the court didn't even consider it based on the fact that there were the expert dep and the expert reports sworn but turning to the defendant's expert witness who was also deposed after summary judgment briefing him there is no prejudice whatsoever to the defendant  if that testimony is allowed to come in he dr frick was the defense expert he was proffered to show that bruce cunningham did not suffer from alcohol withdrawal and would did not suffer a serious medical condition and in fact upon taking his deposition dr frick conceded that yes indeed cunningham suffered an alcohol withdrawal seizure he did likely suffer other symptoms while he was incarcerated although we don't know that because the jail did not preserve any of that evidence while he was incarcerated and that had cunningham been sent to a facility as the procedures at the  required he would have been admitted because an alcohol level of point three hundred and fifty five is dangerously high based on anyone's scale this evidence was promptly tendered after the depositions and a full year before the judge ruled on summary judgment so regardless of whether the plaintiffs death to the plaintiffs expert depositions ought to be considered it was an abuse of discretion for the rice had no notice of coming and medical need because they were aware that he works extraordinarily toxic right now how do we get from notice of that stre having conversations with mr cunningham mr cunningham was drinking water he was given food now if what you're talking about is later he was booked but pre booking isn't that what officer nutter testified to officer nutter testified he called it a little watch but it's not a watch he said but he kept him on a bench in the booking area and testified that he gave him some water and testified that he could communicate so what are you going to win when you say he was thrown into a cell because when not when officer not or left that night at nine hundred and thirty dollars which was about two hours after cunningham entered the facility he put him in the drunk tank and there is no record of any effort to check on anyone in the drunk tank officer nutter testified himself that the only checks he does on people in the drunk tank is to see whether they're alive and jail that has five hundred dollars beds and is regularly in taking people who are at risk of detox you have no no effort whatsoever to monitor the people that are in those cells is it is the equivalent of a ignoring all medical care whatsoever the defendant's even though this particular policy wasn't produced in discovery in this case it was produced in a different case and later tendered to the court the policy at the jail says that a blood alcohol level in excess the point twenty five is a serious impairment and it requires a medical evaluation to see if the person requires observation because the way detox works is that as you sober up the risk of complications increases and that is exactly what happened here bruce cunningham did not just suddenly have a seizure he was in a tank there's no video of what happened in the tank all of the records regarding who was in the tank with him that might have been able to testify about whether he was bombing shaking sweating having any of the other preceded your symptoms none of that was preserved the identities of the officers that were on shift that night after lieutenant nutter left were not preserved the district court used that spoliation to give the defense and in institutions like jails and prisons to destroy evidence and ignore the people that are in their care so that they can avoid liability when something goes wrong we're opinion what you just referred to what page of the district court's opinion is that or i'm sorry what are you referring to the you know kind of holding the your point i think as i understand it is you're saying the district court effectively held the spoiler in of evidence against mr cunningham and that's not proper that rex and i didn't i does i'm sitting here right now i just don't recall where that's at the district court appeal i was trying to put my finger on it well the district court found that held that st cunningham did not exhibit any signs of alcohol was dropped and the only way that the court can make that inference is to disregard the medical proof and also give the defendant's failure to preserve evidence a credible inference rather than giving the plaintiff the entrance inference that during that time he was not assessed  monitored and any fashion which is what the plaintiff argues and this court has a long history of holding that a failure to get any medical care whatsoever is indeed a th amendment violation when it comes to pretrial detainees and that is exactly what happened here and that failure to monitor the failure to get any sort of medical assessment whatsoever just someone that is classified within the system as having a serious condition that requires monitoring is a th amendment violation and is enough to take public records request even before suit was filed which is how he knew to sue some twenty plus officers all of whom were on various shifts so i see no merit to that documentation was provided throughout the litigation i'll concede the video was not preserved but the public records requests for preservation of video did not occur until about two months before suit was filed more than a year after the event and by then it had been rewritten that they don't preserve video beyond a year so that's what occurred i would have been preferable to have the video but it simply it was not preserved pr transported to the hospital for evaluation i think his testimony was there was a situation as he put it at the jail which didn't allow other officers in the jail to be available th there so he interacted with cunningham and discovered that he was communicative and he even remarked that he knew lieutenant knockers uncle cause he was a former firefighter so he took it upon himself to to conduct his own sort of informal watch and he did say that he had some concerns about cunningham but i think  taken his testimony as a whole it appears he he assessed him during those couple hours he was there a couple hours outside the drunk tank determined he was sobering up he had been drinking it had been eating and and so he chose not to refer him to the hospital but yes he he certainly could have done so and he would have had to call in a row deputy to do that and that that could have been undertaken that knowing jails as i do inmates move around they get moved from the drunk take to the general population or they bond out and there may not be a full record of any and everyone who is in the drunk tank but there's certainly some documentation because i've seen it of certain arrestees who were in the wrong thing now did that prevent the plaintiff from interviewing these people you know that they certainly could have done so  cunningham it had a serious medical need which required referral to an emergency room as opposed to simply keeping an eye on him before putting in the drunk tank he had made it he had no history of seizures as i point out he was able to carry on conversation both at the scene and at the jail he wasn't falling over he wasn't swaying his blood alcohol content per the breathalyzer was point three  high i grant you that mr stevens do we know when that breathalyzer was given in relation to when he was admitted to the jail it was given shortly after he was transported from the scene to the jail to the book in the area i think it has a time stamp your honor it's in the record of the breathalyzer results i don't remember it offhand but mark my recollection is it was pretty soon after he was brought into the jail by the arresting officer who through their sworn yes a three hundred and eleven b a c in your brief you say it was at six thirty eight pm thank you your honor would that have been about an hour before he was admitted to the jail percent as a medical condition that requires outside that range of ordinary non life threatening drunkenness let me answer that this way or on or to be in with the policy the point tw dollars is primarily there to notice to instruct officers that intoxication at that level or above suggest the arrestee is seriously pair so they don't want as a matter of policy to take in arrestees who are highly intoxicated in general unless there's been some clear and so to speak by the emergency room on the other hand constitutional liability cannot be predicated upon violation of this local regulation and in fact i i've cited cases minutely one is from the six circuit but even from our circuit the love it cas speaks in terms of high extrude intoxication standing alone is not enough to violate the th amendment now if there's more if there's if he can't walk if you have to if he can't speak if there's facts of that nature then then released look at an issue of fact but here we don't have that so let's the court is going to create some policy or some bright line rule that says  any arrestee over point twenty five has his th amendment right violated unless he gets medical clearance and that's certainly not in keeping with prior decision mr stevenson i just want you to i think i know what you're going to say but it would it would help for you to address this it looked to me from reading the deposition testimony that sheriff knoll has really buckled down on the policy a bit that there's not a whole lot of latitude anymore and one of the one of the street officers i don't know if it was elliott or group he testified that today in the wake of sheriff knowles you know strict enforcement of that policy that the radio car would head straight to the hospital with a b a c at this level i think that that's the way i took the testimony anyway what if any significance is there and that to our analysis well the sheriff that he took he took office in january of two thousand and fifteen fostered a climate of not adhering to it but there was a history of discretion so to speak on the part of the booking officer as to whether to really and here to the policy so it's true the sheriff has been more rigorous in terms of enforcing the policy because you know it's in the state jail regulations and he wanted it when it's to be adhered to still from my perspective and i think from the district courts we can't simply look at the point twenty five and somehow defining some constitutional threshold we certainly can't look at that from a qualified immunity perspective and there look at the cases that i cite not only from this circuit but from other circuits where the one out of the six circuit where the guy was point th three won or point thirty in the six circuit held well absent some other evidence beyond extreme intoxication we're not going to find a constitutional violation so i think my clients  defend the district court the district court did not rule on qualified immunity because they didn't get to the issue but to defend the district court's ruling is certainly supportable by my prior decision will  the way i think that's not a fair characterization of his testimony to say he simply checked on people in the drunk tank to see if they're alive he and other deputies testified that they go into the drunk tank recognize that the drunk tank is a holding area it's not it's not where he and dates remain for a long period they check to see how they breathing are they you know to get some verbal response of some nature and i'm just i'm just responding and insofar as how things were handled there and elsewhere in you know in jails that's what they do in drunk tanks i will point out that most arrestees and drunk tanks bond out they don't release them until they sober up that's that's the way jails are run but they bond out the next day or if they can't bond out they put him in general population i did want to comment your honour's on to a point that i think merits discussion in connection with our existing law the rd factor on the the four part test employed by the district court inquires as to whether there was requested tree and on the other hand if you look at love at st as herbert which was the cited two years ago and the rd category is characterized as a legit required treatment which is kind of different if you look at the site in love it it's to williams st this rodriguez from two thousand and seven which in fact characterizes that factor as requested treatment which i think is the is the proper inquiry and the district court here while it's cited love it and use the term required treatment rules on the basis of was there requests for treatment and the answer is no he didn't keep big cunningham he was even asked by the way do you want to see the nurse and there are nurses available in the jail at least on call two hundred and forty seven he declined that so that when when the court employs the sliding scale in the the th amendment test as it's a balancing test if the court applies that in accord with prior decision the law it's inescapable in my view that's the st two criteria perceived medical need in the seriousness of it amount to nothing more than extreme intoxication insufficient to carry a constitutional claim and the rd factor weighs in our favor as well your honor as i see my time is elapsed unless there's other questions i'm going to jail for example about who was in the drunk tank the drunk tank showed that it was empty when bruce cunningham had his seizure and the medical records show that there was a another detainee in that drunk tank who alerted staff to the fact that he had a seizure and every single witness testified that the drunk tank was full that night so the idea that i should have to go and interview all five hundred residents of the jail in find out who witnessed it is ridiculous and the jail does keep those records in fact when wounded lieutenant nutter testified on page fifty eight of his deposition that he would walk through the drunk tank and i quote make sure everybody is alive he said that there is a list outside the drunk tank that there's a clip board that has everybody on it we don't have that but i want to focus very quickly on the objectively reasonable treatment requirements under the th amendment first requirement is that an officer has notice of a medical be there is no dispute that every single officer of the two arresting officers and the two officers we know that were working in booking knew that br bruce cunningham pursuant to their policies patty serious medical need there is no dispute about that the nd question is whether it's a serious need not only does the policy itself characterize this level of intoxication is serious but every single expert that testified in this case said that jails have have to have procedures in place for people at risk of withdrawal this is not about just being drunk this is about monitoring people who are at risk for death and other serious complications and these people are in the jails regularly daily event and you had no procedure in place and no effort to monitor those people is the equivalent of zero medical care the rd requirement the scope of required require treatment every expert simply said he had to be monitored for signs of withdrawal no one even nutters little watch that he had a mom before putting him in the drunk tank did not include any assessment of whether he was sweating whether he was bombing whether he had where other he had tremors there was no assessment what so ever and finally police interests ortiz vs city of chicago says taking someone to a hospital it is not onerous and does not implicate any police interests the district court clearly erred in this case thank you ok thank you mrs landa which mr stevenson thanks to you the court will take the case under advisement we're going to take a ten minute recess before we proceed to our rd argument of the morning and we will change a member of the panel as well and so we'll see everybody in ten minutes and at that point will take up sweeney versus ro