magic word you said defendants plural right yes or by your notice of appeal do we only have jurisdiction claims against dr collier your notice of appeal says the judgment on mark six that adopted the recommendation orders that were previously issued by the district court including the summary judgment motion issued in favor of the men defendant well i think i read you as you're a peel notice have something in it besides what i read it also says that  if the defendants briefed the merits such that they would suffer no prejudice by this court consider in the appeal against them then this court will consider what your closest case that's good for you i believe the closest case is greer and that to the record evidence showing a genuine dispute a material fact as to whether the defendants were deliberately indifferent i'd like to focus specifically on four pieces of record evidence not point you to record citations when i can first of all the defendants failed to provide the course of treatment that recommended that a permanent filling be placed on the carious tooth he also said that he would seek approval from the united states marshals to perform that procedure however dr collier completed just one request form for permanent filling during mr johnson's time in the jail after he first diagnosed the cavity in two thirteen else was that because we don't know whether he received authorization to perform that procedure two thousand and thirteen so that actually brings up the third point i'd like to focus on and that's the not medical reason temporary and permanent felons and according to dr connor that policy quote restricted his ability to provide certain types of cared inmates that would otherwise be offered and available to a typical dental patient for ron the reliance by dr collier on a prison policy instead of his own medical decision making to or to make a medical decision alone constitutes deliberate indifference will counsel that's not true i think you're mostly are going to late indifference i don't think it and he says temporary feelings can last twenty years that was reasonable i saw him twelve times in a seventeen month period i did dental exams cleaning x rays one tooth extraction temporary feelings permanent feelings you know what he was affidavi says doesn't that pretty much defeat any deliberate indifference here was a national matter doc a caller actually said that mr johnson never complained after a temporary filling was performed but the record doesn't support that statement or the statement dr call your statement was incorrect after temporary fillings from were performed on tuesday two and two thirteen replacement temporary fillings were needed just months later and after the second temporary filling was performed were not as effective as permanent fillings on appendix page two ninety six where he says that if he would have seen an approval form from the united states marshals for permanent filling earlier he would have performed a permanent filling out a much earlier day that's indicating that he and his recommendation to perform permanent fillings in all instances in this case further shows that a permanent filling was the most effective course of treatment here than his desire to to replace the temporaries with permanent what evidence is there that the temporary fillings deviated from the professional standards of care such to rise to the level of deliberate indifference but i think there's two instances that it  two things in the record that indicates that it deviated from the standard of care first of all that citation appendix two ninety six from dr collier whom self said that if i would have known about a permanent filling being available at an earlier day i would have performed that instead of a temporary filling that's different then that will test saying ideally i would have done this had i could does it same time he says temporaries can last twenty years so what evidence is there that well the temporaries deviates so much from the professional standard of care i think the other thing here to answer question judge grounder is that first of all he always recommended permanent fillings be performed so that was his choice that this is not a disagreement this is mr johnson warning him to perform the recommendation the other didn't perform what they wanted to perform i do i get help i can get finished does that show such a deviation from standard medical care as to amount to deliberate indifference i think it does in this case for the simple reason that a style according to young assumed that the medical decision makers were making medical decisions but if you're making decisions for modern medical reasons then you shouldn't be entitled to that high bar deliberate indifference to that to be deliberately indifferent though even if you're the  guard who's standing beside a prisoner you still could be deliberately indifferent right god could be deliberately indifferent that's what you're asking and now i'm referring to whatever in bank cases what i'm referring to says so that you know if you so you know where i'm i think the there's really two smoking guns here dr cole your son dr co leaders contracted sherburne county jail and specifically appendix page two eighty six shows that dr koehler was compensated by the hour that he had a financial incentive to perform temporary more raises more factual issues in this case because the record indicates that the policy had no impact whatsoever on mr johnson's treatment for two reasons first about the evidence suggested dr collier ignored the policy dr carter submitted fact he thought the reproof approvals had been denied yet dr kelly would continue to perform temporary fillings and in two thousand sixteen he began to perform permanent villains thus dr collier apparently was doing whatever he wanted regardless of the policy and if that was the case it's unclear why he wasn't performing permanent fillings instead of temporary fillings in addition even if the united states marshals policy was being followed it would have had no impact here because as stated the forms which again appear at one fifty sixty one fifty not of the appendix were all approved by the marshals within twenty four hours those they could have had no impact on when mr johnson received permanent fillings or the temporary filaments now the men defendants also blame the policy for their failure to basically follow up and ensure that johnson was receiving the care that dr collier recommended and as a general care provider at the jail they were responsible solely responsible for what your closest case you read might you read my mind right there what's your what's your closest case on this  standpoint it is the most analogous but in that case that case involved both dentists and nurses and they would both file for summary judgment and the district court denied the summary judgment motion as to the nurses like men and they prescribe please the court bradley pro on behalf of the men defendants the issue before this court today the primary issue is whether or not a plaintiff has presented a genuine issue a material fact as eighth amendment claim judge bet and you are to hit on the other issue that the men defendant have raised which is whether or not this court has jurisdiction in the first instance given the limited time that the men defendants have addressed the greer case excuse me your honor i dress the greer case he says greer is the best case for him your honor i think if you look to the case case is directly on point in that case the notice of appeal stated notice here by given that all plaintiffs hereby appeal to the eighth circuit from the final judgment entered on january twenty seventh one thousand nine hundred seven and the order filed on january the judgment that encompasses all prior orders in the case and your honor that that may be the case i would stand on the bows like a sigh saying as standing for the proposition that this court doesn't have jurisdiction based on the notice of appeal that the typical of the prob the difference here is that the pro se added the final phrase that adopted the report recommendation to the magistrate granting colliers motion correct do we read the first part of it the judgment entered on march wrecked your honor and you say that is essential in restricts the previous that's correct your honor this court has said ok what's your closest case on that car he didn't say that it will be your only versus carney school district that's correct and what it says is it's not a mere technicality failure to list a specific order and so because he failed to list a specific order that he's intending to appeal this court's deprived jurisdiction your honor unless you have any more questions i'd like to move on to the primary issue before the court and that is whether or not the men defendants acted with the liberal indifference towards plaintiff plaintiff has laid out their version of the record and as this court noted in  third four thirty nine if the medical records indicate treatment what provided is adequate a plaintiff cannot create a fact issue by claiming that the treatment was an adequate what is more or less what plaintiff is doing here today there's a disagreement over treatment and there's a disagreement over whether or not the treatment that was prescribed or taken was the most effective that's not the standard on an eighth amendment claim it says it less obvious to a lay person in that case right  any evidence of bleeding drainage or signs of infection there were at least twelve examinations conducted by the men defendants in the record at least ten of them resulted in referrals to a dentist i don't call your did to twelve examinations the same indeed the twelve exam and correct your honor mend examines inmates first and then if they are determined to have dental and need the referred to a dental provider it helps to understand the scope of what referred to dr collier on twelve occasions for twelve dental exams within approximately seventeen month period in addition as part of those exams to determine whether or not a plane of had a medical need different occasions prescribe some sort of medication and several other times at least followed up with dr collier to determine what the course of treatment was for plaintiffs in this all demonstrates  no your honor not unless it was shown that that delay somehow caused the plaintiff to suffer some sort of harm the standard with a delay is to measure the objective seriousness of the deprivation by reference to the effect of the delay in treatment so unless there's some sort of medical evidence coming forth showing that by ignoring the the referral to the dentist that it somehow escalated the situation that plaintiff was dealing with there 's nothing in the record to suggest that by failing to obtain some sort of authorization from the marshals that plaintiff somehow now has a worse mouth issue are cases particularly hold and that you rely on keep saying delays adversely affected his prognosis or you think that means it can be deliberate indifference of the delays adversely affected his prognosis your honored adversely affects his prognosis to me w suggest a detriment to his ability to recover and a detriment to his ability to be treated for whatever his medical needs and there's no evidence here that because there was some sort of delay in being seen which the men defendants would actually dispute actually occurred that somehow he's now worse for the where there's no for example if this court were to look to either of the the boy  plaintiff presented with subjective pain he was referred to the dentist based upon that even though there was no objective signs of infection and thus no serious medical need known to the men defendants but because the timely referred or prescribe medication and did the routine checks then they cannot be found to have been deliberately indifference with regards to plaintiff who counsel even if there was a serious medical need it was obvious to a lay person what evidence is there that it was more than negligence on the behalf of the men defendants i don't see why you need to prove that there was no medical  deciding that there's a serious medical need and then look to deliberate indifference there is nothing in the medical records suggesting anything akin to criminal recklessness on the part of the men defendants who again are just looking for medical issues and then if there is an issue they refer it out to the dentist which they did approximately ten to twelve times over the course of seventeen months or as much as someone might see a dentist in five years in this case thank you mr johnson obviously accuses dr call your two of the eighth amendment violation is that he also cites from around what i'd like to point out to the court as i believe you can't meet either of his burden of proof regarding the serious medical need or the deliberate indifference which is  an objective and subjective approach to different products rather mr johnson paints a picture of what occurred with his dental care with a broad brush or meeting several critical important facts that are documented in the records he alleges that he was in constant pain and discomfort claims the medical and dental records and the actions of my client dr collier support my client's position in this case into the same degrees the man position mr johnson's a man that was in prison and had poor dentition to begin with as a medical records indicate he was not a man who saw as dentist twice a year and had good dental hygiene but he contends that my client ignore the reports of difficulty eating sleeping daily excruciating pain improperly treated my client improperly cheated bleeding and swollen gloams gums excuse me and his own self diagnosed dick a tooth the k but the dental records don't support that the records are very clearly documented on each area cage and when this gentleman complained mand aaj him sometimes providing medication sometimes referring him to my client for dental care and by the way to set the record straight my facts indicate that he was referred for dental care to my physician on my doctor on twelve o until care if you know they're suffering can support a deliberate deliberate indifference claim and this is much more than three weeks so that's my question yes sir i indeed acknowledge that and i would tell the court first off the doctors my doctors recommendations of the dentist recommendations were that he would have a permanent amalgam placed in the interim he placed two temporaries in that same huth which my dentist deemed sufficient my dentist also did complete a prisoner medical request to approve that permanent failing that dental request or that approval from the u s marshal service was not in the dental records nor passed along and so we had no knowledge of it i also want to say that in the affidavit supporting my dentist went ahead and did the permanent amalgam in january of two thousand sixteen without a u s marshal approval and took a financial hit for that yes or my concern here is not that deliberate indifference has been established but that the record seems to have conflicting evidence and we're here on summary judg is outcome determinative and we would argue that it is not we're not conceding that a factual dispute exists but counsel plaintiffs or mr johnson says there's one recording with the personal medical requests and also with the eight months that was w the time period during which his client didn't have the permanent there is no indication in the record or otherwise of any significant damage suffered by his client by the weight of the months but aside of that aside of that it's not what about eight months  effect yes it would be a factor in if the curve use the medical records you'll find that there's two sets there's one with a man that describes a different set of circumstances than those doctor colliers i want to point out a part of my argument is that on the twelve town excuse me occasionally during which my physician my dentist met with this gentleman you will not see any met any medical information in there anything in the records about this man suffering with excruciating pain having an infection having any significant damage to tooth number thirteen or any of the other teeth by waits for the permanent amalgams so i am going to argue that a recommendation for treatment with a temporary interim treatment was sufficient am certainly sufficient given the fact that we know that the substance that was placed in those teeth has a history from world war two of holding up for periods that are near and over twenty years and again the evidence to the evidence by plaintiff is not here of saying i had my tooth removed it was cracked so he does have some subjective argument here there's just no additional evidence to support it and i think the distinction between the two records is important if i go to the dentist or if we go to the dentist and we have an opportunity to complain about all of these things why is inconsistent with man vs the dentist he would think he would parallel those two and tell the dentist the same things and there is no doubt in the dental records of mild pain mild tooth pain so my dentist had no indication of anything other and frankly from observation and he did assess him on every single occasion there was no indication of infection no indication of other issues that the plaintiffs raises with the man records interposition depend upon the dental records incorporated everything that mister johnson said yes we have to do that but i do point out to the court that this is a bifurcated process and it's unfortunate because what you have is the u s marshal as the court is aware you have the man  to the provider the records for mail and we're not in dr colliers records we don't we have a lack of communication between these two question of whether that lack of communication resulted in the standard that's required by the plaintiffs i disagree that it does but it is a problem and i ask a quick question on that serve on the default the reason given by your client for not responding to the summons seems a little suspect to me perhaps i can address that your honor dr call you made a stupid mistake and it's unfortunate i'll tell you and i've argued before the court he was not arrogant he was not indifferent to the court's authority and he was attempting to avoid the law suit he mistakenly and stupidly genuinely thought that there was an error in the caption expected the caption to be corrected that he would be researched by the u s marshal and then seek legal assistance i that's that's what i can tell the court but i will also tell you this he received notification of the entry of default order on december twenty eighth that's the very same day he showed up at my office hired us and we got on the ball as quickly as we could answer so you know i don't have any grand excuse for that i can tell you obviously from my knowledge and from our pleadings before the court it was a dumb mistake and we are lucky to be here today when argue with that thank you subject to any questions the court may have i would just going to show up on that and i would tell the court that we have reviewed and i consider the court has thoroughly as well the district court's entry of order or some summary judgment and also the district court's entry of the  order be caving in reversing the magistrate's decision on allowing my client back into the lawsuit and i would just ask the court to carefully look over the records if you have not already you'll see the distinction that i that i raised between man's medical records and doctor colliers records and you'll see the distinction that i argue between his reports of how egregious he was suffering thank you miss you your time has expired oh that's  there's a lot to unpack their owners i'm going to focus first of all on the trivialisation of mr johnson's medical need by defendants and the fact that they allege there was no detriment first of all the men defendants who apparently claim they were not dentists themselves recognize that appendix page one third or  add to that mr johnson was suffering from multiple dental caries that were visible to the naked eye they also were prescribing pain medication mr johnson during his first nine months and excuse me the first nine months of two thousand and fifteen does that defeat deliberate in medications were not working and that was in two thousand and fifteen in two thousand and sixteen after all this treatment allegedly occurred over the fact that it is obvious to a lay person according to this court's case roberson v bradshaw by two thousand and fifteen the defendants knew mr johnson was suffering from extreme amount of pain in september two thousand and fifteen mr johnson notified men that his treatment was not being approved he said the same thing in two thousand and fifteen yet it wasn't until