[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
May it please the court.

[00:00:02] Speaker 04:
My name is Cameron Schlegel, and I am pro bono amicus curiae counsel in support of appellant David Scott Peasley.

[00:00:09] Speaker 04:
I would like to reserve two minutes for rebuttal.

[00:00:12] Speaker 00:
Okay, watch your clock.

[00:00:14] Speaker 04:
This case presents a straightforward question.

[00:00:17] Speaker 04:
Did the district court err in granting summary judgment to appellees Gibson, Orozco, and Lopez on Peasley's Eighth Amendment claim that they were deliberately indifferent to his serious medical needs as a diabetic prisoner?

[00:00:30] Speaker 04:
The answer is yes.

[00:00:33] Speaker 04:
Before addressing the merits, I will briefly address the district court's denial of Peasley's request to have counsel appointed, because at the very least, this provides context for discussing the evidence in support of Count 6.

[00:00:47] Speaker 04:
The district court abused its discretion by twice denying Peasley's request to appoint counsel.

[00:00:53] Speaker 04:
Peasley was previously appointed counsel in the district court and in the ensuing appeal to this court,

[00:00:58] Speaker 04:
And those orders presumably carry with them findings that Peasley's case was exceptional.

[00:01:05] Speaker 04:
Nevertheless, after remand, the newly assigned district judge denied Peasley's request to have counsel appointed.

[00:01:13] Speaker 04:
Given the complexity of the legal and factual issues involved and the very complex procedural history, the assistance of counsel was necessary to ensure a fair presentation of Peasley's claims.

[00:01:25] Speaker 04:
The denial of counsel significantly prejudiced Peasley's ability to effectively oppose summary judgment and present his case.

[00:01:34] Speaker 04:
This abuse of discretion is an independent ground for reversal, but it also provides context for the district court's conclusion that Peasley failed to demonstrate the existence of a tribal issue.

[00:01:47] Speaker 04:
In their motion for summary judgment, appellees relied almost exclusively on the evidence that they submitted months previously with their prior motion.

[00:01:58] Speaker 04:
Peasley, by contrast, did not submit or reference any of the evidence that his prior counsel submitted in opposition to appellee's original motion.

[00:02:07] Speaker 04:
Peasley's handwritten opposition and the evidence he submitted reflect that he did not understand all of the relevant issues

[00:02:15] Speaker 04:
nor does it appear that he was aware of some of the previously submitted evidence.

[00:02:20] Speaker 04:
Appellee's reliance on evidence from their prior motion should have alerted the district court to consider the evidence that Peasley had previously submitted when he was represented by council.

[00:02:31] Speaker 04:
But it is unclear, if not doubtful, that the district court considered any of that evidence.

[00:02:39] Speaker 04:
Turning to the merits of Count 6,

[00:02:41] Speaker 04:
The district court misapplied the legal standard and failed to consider crucial evidence demonstrating that Peasley faced a substantial risk of serious harm on September 7th and 9th, 2013, and that appellees disregarded that risk.

[00:02:57] Speaker 04:
First, the district court failed to view the evidence in the light most favorable to Peasley, seemingly requiring him to produce expert evidence and show that he suffered actual harm.

[00:03:09] Speaker 04:
At the summary judgment stage, the court was required to draw all reasonable inferences in Peasley's favor.

[00:03:15] Speaker 04:
But the district court instead drew multiple inferences against Peasley.

[00:03:19] Speaker 01:
Counsel, could you distinguish Gibson and Orozco from Lopez?

[00:03:25] Speaker 01:
Do you think that would be a good idea?

[00:03:27] Speaker 01:
In what sense, Your Honor?

[00:03:29] Speaker 01:
The facts were different, weren't they?

[00:03:32] Speaker 01:
Somewhat.

[00:03:32] Speaker 01:
I think that they're... I mean, the facts are important.

[00:03:36] Speaker 01:
You haven't discussed the facts yet.

[00:03:38] Speaker 01:
Discuss the facts.

[00:03:40] Speaker 00:
So more precisely, it seems to be undisputed that Peaslee asked Officer Gibson for a blood test as a precaution.

[00:03:52] Speaker 00:
And that, as a precaution, doesn't necessarily alert Orozco and Gibson that

[00:04:03] Speaker 00:
Pesley needed that test right now, whereas for Lopez, Pesley told Lopez that it was urgent, his condition was urgent, and he was demonstrating symptoms.

[00:04:18] Speaker 00:
So it seems to me that these two different incidences might give rise to different levels of potential liability at the least.

[00:04:31] Speaker 04:
Your Honor, so I think that the

[00:04:34] Speaker 04:
There is a distinction with exactly what Peasley told Officer Lopez, and I think that his request to Officer Lopez was significantly more in line, for example, with what this court addressed in the first Peasley case, or in Lawley saying that there was actually an emergency.

[00:04:48] Speaker 00:
However... Doesn't it make a difference to the legal standard of deliberate indifference?

[00:04:55] Speaker 00:
Like, what they were aware of and that they, you know, disregarded.

[00:05:03] Speaker 00:
because that is the legal standard and applying it to the facts as alleged by Peasley, you know, in the light most favorable for Peasley, he did say as a precaution to Gibson and Orozco.

[00:05:20] Speaker 00:
I mean,

[00:05:27] Speaker 00:
In Lopez, I guess he said it was urgent and then he kind of debated and then he left peacefully and just all he gave him was a form.

[00:05:34] Speaker 00:
So he seems far more culpable under that standard, to me at least.

[00:05:40] Speaker 04:
Your Honor, I think I read Farmer

[00:05:42] Speaker 04:
and this court's precedence, Farmer specifically says that the standard is whether the appellee is new of and disregard a substantial risk to future health.

[00:05:51] Speaker 04:
And I think in this instance when Peasley said that he was requesting the blood test out of fear of potential seizures,

[00:05:57] Speaker 04:
coupled with their knowledge of the fact that Peaslee is a brittle diabetic with very unstable diabetes, that it actually supports the finding on the subjective prong of the deliberate indifference test.

[00:06:09] Speaker 00:
Were Gibson and Orozco aware of the seriousness of Peaslee's?

[00:06:14] Speaker 04:
Yes, I believe there's evidence in the record, Your Honor, that they were

[00:06:18] Speaker 04:
sufficiently aware.

[00:06:19] Speaker 04:
And at the very least, Peasley had stated that there is apparently a sign on his cell that says that he's a diabetic that receives treatment a few times a day.

[00:06:31] Speaker 04:
I don't know if the schedule would test.

[00:06:34] Speaker 04:
That testimony was given

[00:06:35] Speaker 04:
I believe in relation to a prior incident in July but I believe the record shows that they were aware that he was a diabetic and received treatment multiple times a day close to meal time but Mr. Peasley's expert also said that or explained how important blood tests are including routine blood tests so I think in society most people have

[00:07:01] Speaker 04:
constant blood sugar monitors, diabetics have constant blood sugar monitors, and Peasley's expert explained the purpose of that, that you can't necessarily evaluate the risk of high or low blood sugar just based on meal time insulin regimens.

[00:07:16] Speaker 04:
And so I think, again, that Peasley's saying that he needed this as a precaution for potential seizures coupled with their knowledge

[00:07:24] Speaker 04:
of his very unstable diabetes at least puts them on knowledge of what pharma requires, which is a substantial risk to Peaslee's future health.

[00:07:35] Speaker 04:
And then I think, you know, assessing what they did in response to that, I would submit that the record shows that Gibson contacted first the pill line nurse who just, as I understand it, administers medications that have already been ordered by doctors.

[00:07:53] Speaker 04:
And with respect to that incident, I think that making a futile request or a request that custody officers know is futile and is not going to result in a doctor evaluating whether a further blood test or treatment is necessary.

[00:08:08] Speaker 04:
So for instance, if a doctor had looked at Mr. Peasley's medical records, they presumably would have seen, based on what Mr. Peasley submitted in his declaration, that his blood sugar had been

[00:08:17] Speaker 04:
very aggressively high early on in the day on September 7th, and perhaps that would have, I'm not a doctor, but perhaps that would have made a difference as to what they evaluated in determining whether or not to administer care, but I think it's important.

[00:08:33] Speaker 01:
Could I interrupt you for just a second, Council?

[00:08:37] Speaker 01:
Your Exhibit A, the plaintiff's declaration of facts in support of opposition to defend its motion for summary judgment, is a medical services operational procedure which apply in this location.

[00:08:51] Speaker 01:
And in the lower right-hand page, it says all patients requesting urgent slash emergent medical attention will be triaged based on medical need.

[00:09:02] Speaker 01:
The staff member shall call the appropriate facility clinical area.

[00:09:10] Speaker 01:
Mr. Peasley said that he'd had a 500 reading on his blood tests earlier and he was concerned, he was a precaution against seizure, that he'd like to have another blood test.

[00:09:26] Speaker 01:
That wasn't an emergency request as he made later to Lopez.

[00:09:31] Speaker 01:
If the standard is indifference rather than negligence, isn't there a difference between those two?

[00:09:42] Speaker 04:
In my view, honor, no, because of the futility of the requests that they made, and given the serious nature of leaving diabetes untreated.

[00:09:50] Speaker 01:
But you're assuming that all treatment for diabetes is serious, is emergent.

[00:10:00] Speaker 01:
That's not so.

[00:10:01] Speaker 04:
I think taking the converse, Your Honor, if that were the standard in the Eighth Amendment evaluating whether or not officers who have knowledge of a serious risk to future health, as Farmer said, then it would imply that the future harm must come to fruition before officers can be held liable under the Eighth Amendment.

[00:10:22] Speaker 01:
You have a difference between an emergency request and a precautionary request.

[00:10:28] Speaker 01:
Isn't that a difference?

[00:10:31] Speaker 04:
Perhaps in the policies, Ortiz, the Seventh Circuit case, Ortiz addressed that the policy is not an issue in this case, but if the argument is that the officers were just following the policy, I think the question becomes whether even under the subjective prong and then given the reasonableness of their actions, whether it was reasonable knowing that there's a substantial risk of future harm to Mr. Peasley, just being if he's left untreated and doesn't eat the appropriate amount of food at dinner, then

[00:11:00] Speaker 01:
I understand your answer.

[00:11:02] Speaker 02:
But wasn't it Peasley himself who used the word precaution?

[00:11:06] Speaker 02:
That isn't the characterization by the officers.

[00:11:09] Speaker 02:
I mean, it was Peasley himself.

[00:11:10] Speaker 02:
At least he claims, I want a blood test as a quote unquote precaution.

[00:11:15] Speaker 02:
And when you use that word, it means it's not urgent by definition.

[00:11:24] Speaker 04:
Yes, Your Honor, I think it's correct that that's the word that Mr. Peasley used.

[00:11:26] Speaker 04:
However, I still think that custody officers have a responsibility in light of known circumstances.

[00:11:32] Speaker 04:
Mr. Peasley is a prisoner and not a medical professional.

[00:11:37] Speaker 04:
I think the question is what level of care must they provide

[00:11:41] Speaker 04:
Especially, I mean, the precaution was coupled with his statement about potential seizures.

[00:11:46] Speaker 04:
And although it's unclear whether Mr. Peasley had told the officers at the time he was requesting care what symptoms he was experiencing or what his blood sugar had been higher in the day, I think that there's support in the case law that, again, I go back to the futility of the officer's contact to the pill line nurses.

[00:12:08] Speaker 04:
They were simply told that Peasley did not have an appointment to or didn't have a doctor's order to receive a blood test at that time.

[00:12:17] Speaker 04:
I think that if we're looking at a standard just for custody officers to follow, making a futile request, in other words, had Officer Gibson contacted the medical unit

[00:12:31] Speaker 04:
and a physician in the medical unit and said that I have an inmate who's known to have very aggressive diabetes.

[00:12:39] Speaker 04:
He's on a treatment regimen and is saying that he's concerned about his blood sugar this evening.

[00:12:44] Speaker 04:
And the doctor

[00:12:46] Speaker 04:
in turn looked at Peasley's medical records and made a decision not to allow Mr. Peasley to take a blood test or to administer insulin, then perhaps you have a different claim under those facts.

[00:12:58] Speaker 04:
And the claim might be against the medical unit staff, which is a bit of a different standard than custody staff.

[00:13:04] Speaker 04:
So for custody staff, I think the question is whether the actions they take to abate a known substantial risk of future harm to an inmate's health based on a serious medical condition.

[00:13:16] Speaker 01:
It wasn't a substantial risk except in the mind of Peasley, and it was a precaution.

[00:13:22] Speaker 01:
He might have a seizure.

[00:13:24] Speaker 01:
Is there a difference between might and will?

[00:13:27] Speaker 04:
There is, Your Honor.

[00:13:31] Speaker 04:
I would submit that as Lawley found, based on, and actually Lawley, this was criticized by Jojo Scanlon in his concurring in part and dissenting in part opinion, but Lawley explained that there are well-known

[00:13:45] Speaker 04:
circumstances with diabetes, which was part of the core finding of that, that if left untreated even for a short period of time, there can be very severe complications.

[00:13:54] Speaker 04:
So I would submit that that is well established, which is why perhaps these circumstances present a different issue in focusing on the futility of the actions that were taken as opposed to

[00:14:08] Speaker 04:
whether or not there actually was an emergency.

[00:14:10] Speaker 04:
There's no case, at least that I've read, that suggests that an emergency must be occurring before the

[00:14:20] Speaker 04:
before staff are required to administer medical care.

[00:14:23] Speaker 04:
It's knowledge of a serious risk to future health as Farmer framed it.

[00:14:31] Speaker 04:
And I think here, the futility of the officer's actions is important.

[00:14:36] Speaker 04:
And if I may just say, there's also a dispute in the record with Officer Gibson.

[00:14:42] Speaker 04:
Officer Gibson claimed to have, and I think this goes to what Mr. Peasley's burden of proof was, which was just to show a dispute of fact.

[00:14:49] Speaker 04:
Officer Gibson claimed to have reached out to a so-called patio nurse Which I'm not sure is if it's part of the medical unit or not and I'm mindful of my time and I'll rest on this point but officer Gibson was Asked whether we know why that second call was not in her chrono and her explanation for that was that she could not understand

[00:15:13] Speaker 04:
the officers, or excuse me, the patio nurse's name over the phone and therefore just didn't include it in the chrono.

[00:15:21] Speaker 04:
But I think that a reasonable trier of fact could look at that and look at the discrepancy between the chrono and the claim that she called a nurse at even assuming it was with the medical unit who also said that they would not be able to see Peasley at that time, whether that was compliance with the guidelines or compliance with the Eighth Amendment standard.

[00:15:39] Speaker 04:
Thank you.

[00:16:00] Speaker 03:
Good morning.

[00:16:00] Speaker 03:
Your honors may please the court.

[00:16:02] Speaker 03:
Michael Quinn, counsel for defendants and appellees Lopez, Orozco, and Gibson.

[00:16:07] Speaker 03:
The district court's decision should be affirmed for three reasons.

[00:16:11] Speaker 03:
First, there's no evidence that either defendants Gibson and Orozco or Lopez were deliberately indifferent to Peaslee's medical needs during their interactions in September 2013.

[00:16:24] Speaker 03:
In addition, even if this court finds that the defendants violated his rights

[00:16:30] Speaker 03:
They are entitled to qualified immunity.

[00:16:31] Speaker 00:
Counsel, I understand you're arguing that here, but that was not an issue before the district court.

[00:16:38] Speaker 00:
And the district court did not rule on that issue.

[00:16:41] Speaker 00:
So I'm not sure it's properly before us.

[00:16:44] Speaker 03:
Correct.

[00:16:45] Speaker 03:
We do have in our brief citation to the Bebo, I'm not sure how to pronounce the Bebo case, in which this court can affirm even if qualified immunity is not

[00:16:58] Speaker 03:
Address in the district court case for the purpose of basic judicial Efficiency and economy that the court can't affirm the district court's decision on qualified immunity grounds Even if qualified immunity is not addressed by the district court Well, we don't usually do that So although there's there is some case law out there that we cited in our brief with it to that effect In addition

[00:17:28] Speaker 03:
With regard to the denial of the request for counsel by the district court, that was appropriate as there were no exceptional circumstances that would require the appointment of counsel in this case.

[00:17:42] Speaker 03:
Moving just to Gibson to begin with, Gibson contacted an LVN on September 7, 2013 and... Do you want to tell me what those three letters mean?

[00:17:56] Speaker 03:
uh... license vocational nurse okay and uh... so she contacts the license vocational nurse uh... initially on september seven when she when pieceley says he needs blood test uh... that nurse says don't send him out here he'll be sent right back he doesn't have an appointment and pieceley continues to complain or to request uh...

[00:18:24] Speaker 03:
attention, medical attention, so she contacts a second nurse who says basically the same thing, don't send him here, he's going to be sent back.

[00:18:34] Speaker 03:
There was no, through those contacts with the nurses, they demonstrate that Gibson, there was no conscious disregard on the part of Gibson with regard to Peasley's medical needs.

[00:18:46] Speaker 03:
She knew he was a diabetic, she tried to get him assistance and medical

[00:18:53] Speaker 03:
Decline to as as they are required to they prioritize treatment The staff reaches out for direction she reached out for direction, and they decided they they declined to treat him that night With regard to Lopez There was similar conduct by Lopez appropriate conduct by Lopez She was Peasley informs him or informs her sorry that He has an urgent situation, but he needs a pass

[00:19:25] Speaker 03:
Lopez then turns to, goes to the phone, calls somebody in medical, and returns to Peasley saying, you don't have an appointment.

[00:19:36] Speaker 03:
Here is a request form, a medical request form.

[00:19:39] Speaker 03:
And that, again, is consistent with the guidelines that correctional staff are required to follow.

[00:19:45] Speaker 03:
At one point, the counsel for repellent stated that, you know, Peasley is a prisoner, he's not a medical professional.

[00:19:51] Speaker 03:
Well, Lopez is a correctional officer.

[00:19:54] Speaker 03:
She's not a medical professional.

[00:19:56] Speaker 03:
She is dependent on the medical professionals at the prison to give her direction and to prioritize

[00:20:05] Speaker 03:
The treatment for any inmate including pieces if I can interrupt it So if it's an urgent medical situation the normal procedure is to give the prisoner of a medical form That doesn't seem right no as Gibson stated in her deposition if there's a need for an emergency care

[00:20:24] Speaker 03:
You can contact medical staff over the radio.

[00:20:26] Speaker 03:
You can have them respond to the housing unit if someone is in some sort of distress as the Inmate was in the lolly case where he had an obviously sickly appearance.

[00:20:35] Speaker 03:
He was making explicit statements Using there's extreme behavior health-wise for that particular inmate that is not this case Peasley says he needs a pass a pass is not an emergency

[00:20:50] Speaker 03:
It just gets you out of the housing unit to go to it.

[00:20:53] Speaker 01:
But why did he say he needed a pass?

[00:20:56] Speaker 01:
Didn't he say it was an emergency?

[00:20:58] Speaker 03:
He said it was urgent.

[00:21:00] Speaker 01:
Oh, pardon me.

[00:21:01] Speaker 01:
He only said it was urgent, not emergency.

[00:21:05] Speaker 03:
If you look at page 173 of the record, in Pesley's own words, he says it's urgent.

[00:21:14] Speaker 01:
But then again, he says... Now, let me read to you.

[00:21:16] Speaker 01:
the medical services operational procedure all patients requesting urgent slash emergent medical care will be triaged based on medical need so it's not really important whether he said it was an emergency if he did say it was urgent correct correct but that but that what what you've read reinforces the fact that the medical the correctional staff are dependent on the medical staff to provide treatment and to

[00:21:46] Speaker 01:
It said triage by the medical, not by the custodial.

[00:21:52] Speaker 01:
Correct.

[00:21:52] Speaker 01:
He just gave him a form.

[00:21:54] Speaker 01:
He didn't talk to the medical people, did he?

[00:21:57] Speaker 03:
Lopez first made a phone call and returned and said to Peasley, you don't have an appointment.

[00:22:06] Speaker 03:
Who did Lopez call?

[00:22:09] Speaker 03:
Presumably someone in the medical staff.

[00:22:11] Speaker 00:
But all he told them was that Lopez felt bad.

[00:22:14] Speaker 00:
He didn't tell them that Lopez said he needed urgent medical care.

[00:22:20] Speaker 03:
Well, what he says on page 173 is, upon her return, she, Lopez, said, you, quote, don't have an appointment, close quote.

[00:22:32] Speaker 00:
Okay.

[00:22:33] Speaker 00:
But when you have an urgent need for care, why do you need an appointment?

[00:22:37] Speaker 03:
Well, I mean, he said it was urgent, but beyond that, there's no evidence that he was showing symptoms as well.

[00:22:45] Speaker 03:
But there's no evidence that those symptoms that he mentioned any of those, like the blood sugar, the 500 level blood sugar.

[00:22:52] Speaker 03:
There's no mention.

[00:22:53] Speaker 03:
There's no evidence that that was communicated to Lopez.

[00:22:57] Speaker 03:
It's in the, he refers to it, you know, he woke up feeling bad.

[00:23:02] Speaker 03:
His sugar level was over 500.

[00:23:05] Speaker 03:
There's no account by Peasley which indicates that that was communicated to Lopez.

[00:23:13] Speaker 03:
There's no, and there's no evidence that he was, he had a sickly appearance as the inmate in Lolly.

[00:23:19] Speaker 03:
There's no evidence that he was engaging in extreme behavior, and furthermore,

[00:23:23] Speaker 03:
If you look at the plaintiff's own expert, we have the plaintiff's expert report in our supplemental excerpts record.

[00:23:33] Speaker 03:
He doesn't mention anything about this period, September 2013, of any emergency or any urgent issue that Peaslee had medically.

[00:23:43] Speaker 03:
He's silent on the matter.

[00:23:46] Speaker 03:
Furthermore, the request form that

[00:23:50] Speaker 03:
Lopez provided him was filled out by Peasley the following day, and it refers to the need for treatment for a rash.

[00:24:00] Speaker 03:
It's not even related to his diabetes, the request for treatment.

[00:24:05] Speaker 03:
And that's on page 43 of the excerpts record.

[00:24:10] Speaker 03:
It's in his own hand.

[00:24:12] Speaker 03:
So all of this provides context that even though he's stating it's urgent,

[00:24:18] Speaker 03:
He then makes a specific request for a pass.

[00:24:21] Speaker 00:
That's not something that is... What does the pass do?

[00:24:27] Speaker 00:
It gets into the medical center.

[00:24:28] Speaker 03:
My understanding, it gets you, if you have an appointment, it gets you out of your housing unit and you can go to the appointment in the medical area or wherever the nurse or the doctor is located.

[00:24:39] Speaker 03:
But the pass is just to move from point A to point B, from your housing unit to a medical area.

[00:24:46] Speaker 00:
So he felt the need for urgent medical attention, and he wanted a pass to get to the medical center.

[00:24:54] Speaker 03:
And Lopez reacts to that.

[00:24:56] Speaker 03:
And he calls medical to see if he has an appointment, because that's why he would need a pass.

[00:25:03] Speaker 03:
And medical, again, they provide direction.

[00:25:06] Speaker 03:
They decide the priority of the treatment.

[00:25:09] Speaker 03:
And they concluded that he didn't have an appointment.

[00:25:12] Speaker 03:
So Lopez does the next best thing, provides him with a form so that he can get medical care.

[00:25:18] Speaker 03:
And there is no evidence, again, of any sickly appearance on the part of Peasley.

[00:25:25] Speaker 03:
There's nothing to alert Lopez, someone who's not a medical professional.

[00:25:30] Speaker 03:
There's nothing to alert her to the fact that he's in any distress.

[00:25:34] Speaker 03:
And if you look at the other evidence in the case,

[00:25:37] Speaker 03:
There's no evidence that he was in distress.

[00:25:39] Speaker 00:
Right now we're taking the evidence in the light most favorable to Peasley, right?

[00:25:44] Speaker 03:
Correct.

[00:25:45] Speaker 00:
And he says he was showing symptoms.

[00:25:49] Speaker 03:
He says that in his account, but he doesn't say that he communicated that to Lopez.

[00:25:56] Speaker 03:
The 500 level blood sugar level that he references in his

[00:26:04] Speaker 03:
on page 173 that he never states that he communicated that to Lopez.

[00:26:10] Speaker 03:
He never states that he communicated that his eyes were burning and he felt dry or that he felt sluggish and drained.

[00:26:18] Speaker 01:
And he wavered to sit down in the presence of Lopez.

[00:26:27] Speaker 03:
There's, again, reading that account from Peasley, there's no indication that Lopez was in the presence of Peasley when he went from a standing position to a seated position.

[00:26:46] Speaker 02:
It wasn't clear from the record because the deposition transcripts, I think, skip pages.

[00:26:51] Speaker 02:
But did Officer Lopez say that she was told that it was urgent, or did she say she denies it, or it's unclear?

[00:26:59] Speaker 03:
There's a confusing interaction during her deposition where she was confused initially about what question was being asked by Peaslee's counsel.

[00:27:11] Speaker 03:
But if you go to page 181 of the record, 182,

[00:27:16] Speaker 03:
She eventually acknowledges that she has no reason to believe that this didn't occur.

[00:27:23] Speaker 03:
So there's no dispute about whether it occurred.

[00:27:25] Speaker 03:
This was, she doesn't recall the interaction, so with regard to the Lopez facts regarding September 9, 2013, this interaction between Lopez and Peasley, primarily we rely on page 173 of the record, that's Peasley's own account.

[00:27:42] Speaker 03:
Because Lopez has no independent recollection of this interaction.

[00:27:48] Speaker 02:
Unfortunately, it goes 181, 3181 is page 51 from the deposition transcript.

[00:27:55] Speaker 02:
182 is page 59 of the deposition transcript.

[00:27:59] Speaker 02:
So we're missing eight pages.

[00:28:00] Speaker 02:
So it's not clear from the record exactly what she- Sorry, I misspoke.

[00:28:04] Speaker 02:
If you go to- You're right.

[00:28:06] Speaker 02:
181 does refer at the beginning of it, but then whatever clarification is missing.

[00:28:11] Speaker 03:
Well, I think the key part is volume three, page 181 of the record,

[00:28:18] Speaker 03:
line eleven through eighteen where uh... pieces council says so do you have any reason to doubt whether or not mister piezley informed you of his need for medical pass on september nine two thousand thirteen there's an objection there but then the witness lopez response no there's she has no reason to doubt this occurred there's you know three hundred uh... some odd inmates in the housing unit where lopez worked

[00:28:47] Speaker 03:
So it's kind of just another day at the office in a way for Lopez dealing with inmates.

[00:28:54] Speaker 03:
So there's nothing that reminds, she has no independent recollection of this, but she says in her depo there's no reason to believe it didn't occur.

[00:29:18] Speaker 02:
Is there anything in the record that says what she did after he told her that it was urgent?

[00:29:29] Speaker 02:
Did she ask any follow-up questions?

[00:29:31] Speaker 03:
Well, on page 173, again, Peasley's own account,

[00:29:35] Speaker 03:
She goes, she calls medical, she's told he doesn't have an appointment, so she does the next best thing, which is provide him with a form that will allow him to see medical.

[00:29:45] Speaker 03:
And he indeed did see medical the following day.

[00:29:47] Speaker 02:
But you're implying that because you said earlier that he didn't tell her that he was feeling dizzy, et cetera.

[00:29:53] Speaker 02:
I think you're kind of suggesting she didn't believe him that it was urgent.

[00:29:58] Speaker 02:
I mean, what was her... If someone says... I don't think there's any... Sorry, go ahead.

[00:30:02] Speaker 02:
Yeah, if someone says this is an urgent medical situation,

[00:30:05] Speaker 02:
I think you probably should accept that at face value unless there's some other information that the person's fibbing or you ask and figure out what it is and says, I have a stubbed toe.

[00:30:14] Speaker 02:
OK, that's not an urgent medical situation.

[00:30:16] Speaker 02:
But you're implying that she somehow had a basis for discounting his claim that it was an urgent medical care.

[00:30:24] Speaker 02:
So I'm trying to figure out what's in the record that suggests that she had a basis to discount it.

[00:30:30] Speaker 03:
First there's no evidence that he would he had any sort of sickly appearance or was in any distress so he wavered He wavered and had to sit down But there again, there's no evidence that occurred.

[00:30:41] Speaker 00:
It's clearly as Judge Friedland wrote in the prior appeal She was clearly aware that he was diabetic and when he was asking for urgency that

[00:30:50] Speaker 00:
care that she could have easily interpreted as knowing that he had a serious medical condition as a serious medical need, which is the standard.

[00:31:02] Speaker 03:
I see my time has expired.

[00:31:03] Speaker 03:
If I could just briefly answer the question.

[00:31:08] Speaker 03:
He did say it's an urgent need, but he also said I need a pass.

[00:31:12] Speaker 03:
He made a very specific request, and at that point

[00:31:15] Speaker 03:
Lopez responded that request.

[00:31:17] Speaker 00:
But are they automatons?

[00:31:18] Speaker 00:
I mean, they're not human beings.

[00:31:20] Speaker 00:
They don't understand when he's saying a pass and he wants to go to the doctor.

[00:31:25] Speaker 00:
You have to use magic words?

[00:31:28] Speaker 03:
You have to.

[00:31:30] Speaker 03:
She is not a medical professional.

[00:31:32] Speaker 03:
Her job is to, when someone needs medical care and they don't appear to be in any distress, as Pesley did not appear to be.

[00:31:40] Speaker 01:
Just a minute.

[00:31:40] Speaker 01:
She reported

[00:31:42] Speaker 01:
Lopez made a phone call and told medical staff that plaintiff, quote, felt bad, unquote.

[00:31:49] Speaker 01:
Now, if she made that statement, she had to have the opportunity to observe Mr. Beasley.

[00:31:57] Speaker 03:
Again, she's not a medical professional, so.

[00:31:59] Speaker 01:
No, but she made the, she said he feels bad.

[00:32:04] Speaker 01:
Doesn't that indicate that she appreciated the distress he was under?

[00:32:10] Speaker 03:
Correct.

[00:32:11] Speaker 03:
And that's what a correctional staff is required to do.

[00:32:16] Speaker 03:
She did not consciously disregard or ignore his needs.

[00:32:19] Speaker 03:
She contacted medical, and if medical had said, send him out here, she would have done so.

[00:32:24] Speaker 03:
But she can't do that unless medical gives her the green light.

[00:32:29] Speaker 00:
All right.

[00:32:29] Speaker 00:
Thank you, counsel.

[00:32:30] Speaker 00:
Thank you.

[00:32:31] Speaker 00:
You are over your time, Mr. Segerberg.

[00:32:34] Speaker 00:
I will give you a couple minutes to respond.

[00:32:45] Speaker 04:
Thank you, Your Honor.

[00:32:47] Speaker 04:
I'll try to be quick.

[00:32:49] Speaker 04:
So this issue of needing the green light from medical, perhaps I'm just misreading Farmer 2 literally, but substantial risk to future health.

[00:33:00] Speaker 04:
And I'm sympathetic to custody staff in that they have a lot of demands from inmates.

[00:33:05] Speaker 04:
So I think the reasonable question then is, what must they do when somebody tells them that there's an urgent need for care?

[00:33:14] Speaker 04:
Who must they contact?

[00:33:15] Speaker 04:
Officer Gibson and Lopez both testified that they didn't perceive an emergency, which is why they didn't elevate the call higher.

[00:33:26] Speaker 04:
I don't think that that's the standard as I read it.

[00:33:29] Speaker 04:
The potential for an emergency is enough.

[00:33:32] Speaker 04:
And as my colleague has said, they're not doctors.

[00:33:36] Speaker 04:
So doctors should be charged with deciding whether, as Judge Bayes said, with triaging an inmate to determine whether or not

[00:33:43] Speaker 04:
there's an emergency.

[00:33:44] Speaker 04:
I think particularly with the diabetic inmate like Mr. Peasley, there is kind of an inherent circumstance there of the potential for a severe emergency if something is left untreated.

[00:33:57] Speaker 04:
So it should be directed to staff that can actually do something about it.

[00:34:01] Speaker 04:
It also begs the question of, and I think this goes to whether there's a genuine dispute, what was communicated to the medical staff.

[00:34:10] Speaker 04:
If Officer Gibson, for instance, just asked, is Mr. Peasley on the list to receive a blood test at this time, that wouldn't have communicated whether there was anything about, whether she mentioned anything about his fear of potential seizures.

[00:34:23] Speaker 04:
And Officer Gibson testified that she couldn't recall whether she said anything to medical staff about his fear of potential seizures.

[00:34:31] Speaker 04:
Likewise, Officer Lopez, if she didn't communicate the urgency to whatever medical staff

[00:34:37] Speaker 04:
she spoke to, which we don't know in the record what medical staff she spoke to, then that might have changed the circumstances.

[00:34:45] Speaker 04:
So I think the substance of the communication is also important in evaluating whether or not the officers took reasonable actions to obtain care.

[00:34:53] Speaker 04:
The last thing I would just note is there is a discrepancy in the record.

[00:34:57] Speaker 04:
Judge Lee, as you noted with Officer Lopes' deposition testimony, that was

[00:35:04] Speaker 04:
excerpts of the deposition that were submitted with the an opposition to the prior motion for summary judgment So I didn't have access to the to the full transcript All right.

[00:35:13] Speaker 00:
Thank you very much, and I think mr. Schlegel and Snell and Wilmer for the pro bono representation today.

[00:35:22] Speaker 00:
Thank you very much and Peasley versus Spearman will be submitted and we'll take up Gelber versus City of Willets and