[00:00:00] Speaker 03:
Our fourth case this morning is Johnson versus Sanders.

[00:00:06] Speaker 03:
And I think we have the student attorneys here today.

[00:00:09] Speaker 03:
And the first attorney is going to do the opening portion and then the second one is going to do the rebuttal portion.

[00:00:19] Speaker 03:
So whoever goes first, be sure to reserve the three to five minutes that you want for rebuttal.

[00:00:26] Speaker 03:
With that, Carlton Ploot, you may proceed.

[00:00:32] Speaker 03:
Is that correct?

[00:00:37] Speaker 03:
I'm sure I mangled your name.

[00:00:39] Speaker 03:
How do you pronounce your last name?

[00:00:40] Speaker 03:
It's Kydin, Hannah Kydin.

[00:00:42] Speaker 03:
Thank you.

[00:00:44] Speaker 01:
May it please the court?

[00:00:45] Speaker 01:
I'm sorry.

[00:00:46] Speaker 03:
You got it right.

[00:00:48] Speaker 03:
My mistake.

[00:00:48] Speaker 03:
You may proceed.

[00:00:49] Speaker 01:
That's OK.

[00:00:50] Speaker 01:
My name is Hannah Kydin, and I'm here on behalf of appellant Marilyn Green, formerly known as Limon Johnson.

[00:00:55] Speaker 01:
I'd like to reserve five minutes for rebuttal today.

[00:00:58] Speaker 01:
In reviewing the district court's entry of summary judgment, this court must find summary judgment was an error if there's any basis in the summary judgment record by which any reasonable juror could bind from a screen on the elements of her deliberate indifference claim.

[00:01:10] Speaker 01:
And indeed, this court should reverse summary judgment because there are multiple avenues by which a reasonable jury could find defendants new of Miss Green's serious medical needs and failed to address them.

[00:01:21] Speaker 01:
Two of those avenues stand out most given Supreme Court precedent and this court's prior holdings.

[00:01:26] Speaker 01:
First, when defendants knowingly terminated Miss Green's prior physician prescribed estradiol and spironolactone prescriptions to be, quote, consistent with DOC policy

[00:01:37] Speaker 01:
and not based on any medical judgment that such prescriptions were no longer medically necessary, they intentionally interfered with her physician prescribed treatment, which Estelle V. Gamble made clear can squarely constitute deliberate indifference.

[00:01:49] Speaker 01:
Second, after defendants cut off Miss Green from her prescribed medications, she repeatedly made them aware of her serious medical needs, including depression and suicidal ideation that she was experiencing, and defendants largely ignored these symptoms.

[00:02:03] Speaker 01:
In concluding that mental health treatment was available to Miss Green,

[00:02:06] Speaker 01:
the district court improperly resolved disputed facts.

[00:02:10] Speaker 05:
On your first point, reliance on the policy, didn't Dr. Sanders also rely on Dr. Jones' report?

[00:02:19] Speaker 05:
It seems like he said that in his affidavit.

[00:02:23] Speaker 05:
Wasn't it both?

[00:02:24] Speaker 05:
Didn't he rely on both the report from Dr. Jones and the policy?

[00:02:29] Speaker 01:
So, Your Honor, Dr. Jones very clearly left open to Dr. Sanders whether the prescriptions should be continued, discontinued, or even advanced.

[00:02:38] Speaker 01:
This can be seen in the record volume one at page 129.

[00:02:41] Speaker 01:
Dr. Jones left it to Dr. Sanders to make a decision of what would be in Ms.

[00:02:45] Speaker 01:
Green's best interest.

[00:02:46] Speaker 01:
And then Dr. Sanders, in his affidavit, volume 2, page 43, stated that his only consideration here was to be, quote, consistent with DOC policy.

[00:02:55] Speaker 01:
And so a reasonable jury could find either that he was relying on that report or that he relied entirely on the policy in deciding that

[00:03:04] Speaker 01:
The prescriptions needed to be discontinued and to rely entirely on the policy would be an administrative decision and would not be an exercise of his medical judgment.

[00:03:12] Speaker 06:
But what about relying on Dr. Jones?

[00:03:15] Speaker 06:
I mean, could Dr. Sanders rely on the staff psychologist's conclusion that Ms.

[00:03:25] Speaker 06:
Green did not have gender dysmorphia?

[00:03:28] Speaker 01:
Yeah, so there's a distinction here between that diagnosis, which we do not contest.

[00:03:33] Speaker 01:
And what makes this case so different from cases that are not deliberate in difference, where there's a disagreement about medical judgment, is that here, Dr. Sanders did not state in any way that he was paying attention to that report.

[00:03:45] Speaker 01:
He merely stated that he was focused on DOC policy and thought that under the policy, given that word, undertake treatment, he needed to... But the policy was dependent on what the diagnosis was.

[00:03:58] Speaker 03:
And the diagnosis was a personality disorder.

[00:04:02] Speaker 03:
And then you put those two together, and that then affects the hormone treatment protocol.

[00:04:08] Speaker 01:
Yes, Your Honor.

[00:04:09] Speaker 01:
The policy does rely on the prescription, but the language in the policy states that it deals with undertaking hormone therapy, where here, Ms.

[00:04:18] Speaker 01:
Green had been on this prescription for two years.

[00:04:20] Speaker 01:
And so to do nothing here in Dr. Sanders' shoes.

[00:04:24] Speaker 03:
Sander's conduct then deliberately indifferent, where, you know, he subjectively knew that he was inflicting cruel and unusual punishment on the inmate.

[00:04:37] Speaker 01:
Yes, Your Honor.

[00:04:38] Speaker 01:
It's the combination of the fact that he was merely doing it to rely on policy, which was just an administrative decision, and also the fact that he acknowledged at multiple points in the record that he knew that withdrawal could lead to extreme symptoms such as depression and suicidal ideation.

[00:04:53] Speaker 01:
And yet he relied entirely on the policy.

[00:04:56] Speaker 01:
He at no point states that he believed these medications were no longer medically necessary for Ms.

[00:05:01] Speaker 01:
Green.

[00:05:01] Speaker 01:
And the matter of this prior prescription makes her need for medical care here obvious.

[00:05:06] Speaker 01:
Dr. Jones, as I've said, left it open to him to decide.

[00:05:09] Speaker 03:
So did Sanders then have a duty, a constitutional duty to seek a second opinion?

[00:05:14] Speaker 03:
No, not at all, Your Honor.

[00:05:16] Speaker 03:
From a psychiatric professional?

[00:05:17] Speaker 01:
Yeah, thank you for helping me clarify here.

[00:05:19] Speaker 01:
He did not have any medical duty to seek a second opinion here, but he had a duty to exercise his medical judgment and decide these prescriptions are no longer necessary.

[00:05:29] Speaker 01:
A reasonable jury could find that he was merely asserting an administrative decision here, where that is significant because under this court's prior descriptions, a penological or administrative decision for interfering with prior prescriptions is what could amount to deliberate indifference.

[00:05:43] Speaker 03:
Would Sanders have been qualified to make a diagnosis of the

[00:05:47] Speaker 03:
gender dysphoria versus personality disorder that the report discussed.

[00:05:53] Speaker 03:
He would not have needed to do so to continue the treatment here.

[00:05:57] Speaker 03:
Wasn't there a prison psychiatrist that could have been available to Ms.

[00:06:02] Speaker 03:
Porter?

[00:06:05] Speaker 01:
I'm not sure I know what you're referring to in the record.

[00:06:08] Speaker 01:
Oh, do you mean after the cutoff of her prescription?

[00:06:11] Speaker 03:
Well, I understood that in addition to Sanders, there were other medical professionals, including

[00:06:16] Speaker 03:
psychiatrist who might have been qualified to evaluate Ms.

[00:06:21] Speaker 03:
Porter if she had asked him to.

[00:06:25] Speaker 03:
Ask the psychiatrist to.

[00:06:26] Speaker 01:
Ms.

[00:06:26] Speaker 01:
Green here is not requesting a second diagnosis here and she's not questioning that diagnosis.

[00:06:32] Speaker 01:
What we are focused on here is the cutoff of the prescription.

[00:06:35] Speaker 01:
We see those as two separate things here.

[00:06:38] Speaker 01:
But that does bring me to another ground for reversal.

[00:06:40] Speaker 06:
I want to make sure I understand your argument.

[00:06:42] Speaker 06:
Your argument is that

[00:06:46] Speaker 06:
the jury could find that Dr. Sanders didn't rely on Jones's report and instead merely relied on the prison policy?

[00:07:03] Speaker 01:
Even if he was relying on Jones's report, Jones's report does not state that the medication needs to be discontinued, so more the point that I'm making here is that even if he relied... Well, if he doesn't have gender dysmorphia,

[00:07:15] Speaker 06:
Dr. Sanders could reasonably decide to taper her off, right?

[00:07:24] Speaker 01:
Well, so, Your Honor, the tapering of the prescription emphasizes here that Dr. Sanders was aware of the extreme withdrawal symptoms that Ms.

[00:07:32] Speaker 01:
Green could potentially undergo if she was to be taken off these prescriptions that she was on for multiple years.

[00:07:38] Speaker 01:
And so a reasonable jury could further find that defendants were deliberately indifferent by failing to provide adequate care to Ms.

[00:07:45] Speaker 01:
Green, who was suffering from the depression and suicidal ideation that I've referenced already, following her removal from HRT.

[00:07:51] Speaker 06:
And that now we're kind of bleeding over into your second ground, which is failure to treat at all.

[00:07:58] Speaker 05:
Yes, Your Honor.

[00:07:59] Speaker 05:
Could I, before you hit the second?

[00:08:01] Speaker 05:
Sure, yeah.

[00:08:03] Speaker 05:
What is your closest analogous case?

[00:08:07] Speaker 05:
that would show that Dr. Sanders was deliberately indifferent.

[00:08:12] Speaker 01:
Yes, Your Honor.

[00:08:12] Speaker 01:
I'd like to point this court to Casanova v. Ulubari, where the 10th Circuit reversed summary judgment when the defendants intentionally interfered with the plaintiff's CPAP machine.

[00:08:22] Speaker 01:
That case looks like Ms.

[00:08:23] Speaker 01:
Green's situation because the interference with the CPAP machine came for disciplinary reasons rather than a medical decision that it was no longer necessary.

[00:08:30] Speaker 01:
What case was that?

[00:08:31] Speaker 01:
Casanova v. Ulubari.

[00:08:32] Speaker 01:
And just as in that case where the prison had a real interest in the disciplinary code that it was upholding when it moved plaintiff and did not allow him to keep his CPAP machine, Sanders here had a real interest in upholding this policy and yet that was still not enough to grant summary judgment where a medical prescription and need was being denied for a non-medical reason.

[00:08:54] Speaker 01:
But if I could move on to the second grounds for reversal.

[00:08:57] Speaker 01:
Further, a reasonable jury could find that after the cutoff, defendants were deliberately indifferent by failing to provide adequate care to Ms.

[00:09:04] Speaker 01:
Green.

[00:09:05] Speaker 01:
As I've mentioned, she was suffering from these extreme symptoms due to her withdrawal from the estradiol and spironolactone.

[00:09:11] Speaker 01:
The district court improperly resolved this disputed fact in the defendant's favor, accepting the defendant's account of Ms.

[00:09:17] Speaker 01:
Green's treatment options, and overlooking that Ms.

[00:09:20] Speaker 01:
Green had evidence in the record that she was not treated at all.

[00:09:23] Speaker 01:
Most notably...

[00:09:26] Speaker 06:
When you say not treated at all, you mean not treated at all for the side effects of withdrawal, of tapering off?

[00:09:36] Speaker 06:
Yes, Your Honor.

[00:09:37] Speaker 06:
Because she was seeing people, there are a lot of instances where she's seeing health care professionals or mental health

[00:09:47] Speaker 01:
She was being seen in weekly rounds, which this court has cautioned that a finding of merely short and frequent mental health rounds is not necessarily to grant a motion for summary judgment where a reasonable jury could find.

[00:10:01] Speaker 06:
Well, it depends on what they do during the rounds, right?

[00:10:03] Speaker 06:
Yes, Your Honor.

[00:10:04] Speaker 06:
In that particular case, there had been some discovery to determine exactly what was and was not done, right?

[00:10:14] Speaker 06:
Yes, Your Honor.

[00:10:15] Speaker 01:
Yeah, in this case, Ms.

[00:10:16] Speaker 01:
Green alleges in volume two, page 143 of the record, that she did not receive any gender dysphoria treatment while at Davis Correctional Facility.

[00:10:23] Speaker 01:
And while she says gender dysphoria there,

[00:10:26] Speaker 01:
She was a pro se litigant proceeding at district court level.

[00:10:30] Speaker 01:
And that statement should be construed liberally.

[00:10:32] Speaker 01:
She, in many other places in her sick call requests, is lumping together gender dysphoria and this depression and suicidal ideation that I've discussed here.

[00:10:39] Speaker 05:
Do you have a specific example that you think most strongly supports this second argument?

[00:10:49] Speaker 01:
Yes, Your Honor.

[00:10:49] Speaker 01:
I would say the Hardeman v. Smith case that I was referencing earlier.

[00:10:52] Speaker 05:
No, I'm not asking for a case.

[00:10:53] Speaker 05:
Oh, sorry.

[00:10:54] Speaker 05:
I'm asking for a specific.

[00:10:56] Speaker 05:
incident where one or the other or both of the individual defendants were deliberately indifferent.

[00:11:04] Speaker 01:
Yes, Your Honor.

[00:11:05] Speaker 01:
I would say that where there are multiple places in the records, such as volume one, page 352.

[00:11:10] Speaker 05:
I'm just asking for one or two.

[00:11:13] Speaker 01:
where Miss Green was informing both Nurse Larimer and Dr. Sanders of these extreme symptoms that she was experiencing.

[00:11:19] Speaker 01:
And Dr. Sanders never met with her despite these repeated requests.

[00:11:23] Speaker 01:
He admits as such on page 177 of volume two.

[00:11:26] Speaker 01:
And further, as I've stated, he knew that withdrawal could cause depression and suicidal ideation.

[00:11:31] Speaker 01:
He enumerated those symptoms explicitly.

[00:11:33] Speaker 01:
And if it's all right, Your Honors, I would like to reserve the rest of our time for rebuttal.

[00:11:37] Speaker 03:
Thank you.

[00:11:44] Speaker 04:
Dr. Moore.

[00:11:59] Speaker 04:
Dr. Moore for Dr. Sanders and Nurse Larimer.

[00:12:04] Speaker 04:
I guess first I would want to mention that I'm envious of

[00:12:09] Speaker 04:
the Appellant Counsel.

[00:12:10] Speaker 04:
I would have loved to have had that opportunity 46 years ago as a third year law student.

[00:12:16] Speaker 03:
It's a great program.

[00:12:18] Speaker 04:
It's pretty cool.

[00:12:21] Speaker 04:
So some of the questions that you just asked, Counsel, let me hit those real quick.

[00:12:28] Speaker 04:
Judge asked, was there a psychiatrist available?

[00:12:32] Speaker 04:
There was a psychiatrist available.

[00:12:33] Speaker 04:
She's referred to repeatedly in the record, Dr. Landtrip,

[00:12:37] Speaker 04:
was on staff there.

[00:12:39] Speaker 04:
Now, she didn't make the determination on was there gender dysphoria or not.

[00:12:44] Speaker 04:
That was a responsibility for the Oklahoma Department of Corrections psychologist, Dr. Jones.

[00:12:50] Speaker 04:
And by affidavit, Veronica Shepherd, the licensed professional counselor that met with

[00:12:59] Speaker 04:
with Ms.

[00:13:01] Speaker 04:
Johnson or Ms.

[00:13:03] Speaker 04:
Green rather, the first day of arrival at the facility, Victoria Shepard mentions in her affidavit a number of times that

[00:13:12] Speaker 04:
Dr. Landtrip, during the year or so that Ms.

[00:13:17] Speaker 04:
Green was at the facility, met with Ms.

[00:13:21] Speaker 04:
Green that Sandra Sanford, the mental health care clinician, saw her weekly on rounds, and of course we talked about, you know, one of those rounds

[00:13:34] Speaker 04:
consist of.

[00:13:36] Speaker 04:
But then I think it's also important to note that Ms.

[00:13:40] Speaker 04:
Green was not unfamiliar with how to make requests to the facility.

[00:13:47] Speaker 04:
You may have seen in one of the volumes of materials available, Ms.

[00:13:54] Speaker 04:
Green, for instance,

[00:13:57] Speaker 04:
asked for additional treatment for a hemorrhoid that she had brought to the attention facility that her laundry bag had gone missing.

[00:14:08] Speaker 04:
And then, pretty importantly, noted to the facility that there were some other inmates out to get her and ask that protective measures be put in place.

[00:14:19] Speaker 04:
So to suggest that Ms.

[00:14:23] Speaker 04:
Green didn't know how to ask for things,

[00:14:26] Speaker 04:
is just inaccurate.

[00:14:28] Speaker 04:
The record really kind of blows past that.

[00:14:33] Speaker 06:
Let me ask you.

[00:14:34] Speaker 06:
The district court seems to have relied on the existence of the prison policy as a complete defense to a Section 1983 claim.

[00:14:49] Speaker 06:
Is it your position that compliance with the policy insulates

[00:14:55] Speaker 06:
Dr. Sanders and Nurse Larimer from liability?

[00:15:02] Speaker 04:
Insulates insofar as, and I think the three of you were getting at this just a few minutes ago, insulates insofar as when you consider the question of what makes Dr. Sanders' conduct deliberately indifferent.

[00:15:19] Speaker 04:
As the district court pretty clearly pointed out,

[00:15:25] Speaker 04:
There was no confirmed diagnosis of gender dysphoria.

[00:15:29] Speaker 06:
Dr. Jones... Well, there was previously, right?

[00:15:32] Speaker 04:
Well, not in the record.

[00:15:34] Speaker 04:
There was, if we had the entire medical record to display here, there were references to suspected gender dysphoria.

[00:15:45] Speaker 04:
That is not a confirmed diagnosis.

[00:15:48] Speaker 04:
Suspected gender dysphoria, very low dose of estrogen, very low dosage of testosterone blocking.

[00:15:55] Speaker 04:
But there was never a confirmed diagnosis.

[00:15:57] Speaker 04:
There was also in the record some email traffic between a nurse practitioner at the Dick Conner Correctional Facility, Dr. Jones at the headquarters level, and even Dr. Jones' boss, Dr. Jana Morgan of, hey, this Lamone Johnson, have you actually seen

[00:16:17] Speaker 04:
Lamone Johnson, have you actually done an evaluation on him?

[00:16:22] Speaker 04:
He's telling me that you have.

[00:16:24] Speaker 04:
And Dr. Jones and Dr. Morgan both reply back, no, we've never seen him.

[00:16:28] Speaker 04:
He's on the list to be examined, but we've never seen him.

[00:16:31] Speaker 04:
And then about a month later, Dr. Jones does about a six-hour sit-down with him, multiple testing, and then produces this eight-page report.

[00:16:41] Speaker 06:
And again, my question is, is compliance with the prison policy enough standing alone to grant summary judgment in favor of the defendants?

[00:16:57] Speaker 04:
I think if you, I'll say yes.

[00:16:59] Speaker 04:
If you, for instance, as this court in the Smash v. Hardiman or Hardiman v. Smash case,

[00:17:09] Speaker 04:
from back in 2022, Judge Baccarat writing for the court says, in any event, the denial of hormone therapy, et cetera, was predicated on the diagnosis by Dr. Jones, semicolon.

[00:17:22] Speaker 04:
So those additional claims could not survive summary judgment absent evidence that the defendant knew that the diagnosis was incorrect.

[00:17:31] Speaker 04:
We therefore affirm summary judgment.

[00:17:33] Speaker 04:
And so there's no evidence in the record and clearly nothing presented to the district court that Dr. Sanders or Nurse Larimer had any reason to believe that this eight-page report generated by Dr. Jones after testing and six hours with Lamone Johnson was an incorrect report.

[00:17:57] Speaker 06:
On the failure to treat claim, the second claim as I see it, the district court seemed to rely on the waiver of services, mental health services by Ms.

[00:18:13] Speaker 06:
Green.

[00:18:14] Speaker 06:
I have some trouble with that given a careful reading of the waiver.

[00:18:20] Speaker 04:
Oh, yeah.

[00:18:21] Speaker 04:
Right.

[00:18:22] Speaker 04:
And I, frankly, in our request as a district court,

[00:18:25] Speaker 04:
and then to you, did not stomp my foot.

[00:18:30] Speaker 04:
I didn't try and make that a foot stomper that, oh, Lamone Johnson signed this waiver and ergo, you know, we wash our hands of treatment.

[00:18:45] Speaker 04:
Victoria Shepard, in her affidavit,

[00:18:47] Speaker 04:
Dr. Sanders and his affidavit, both perhaps not as expansively in retrospect as they could have or should have, but set out that, again, he was seen by Dr. Landtrip during the year plus that he was at the facility.

[00:19:08] Speaker 04:
Sandra Sanford made weekly rounds through there.

[00:19:12] Speaker 04:
He was seen in the clinics for a variety of other reasons.

[00:19:17] Speaker 04:
and that, frankly, mental health services, not per se for gender dysphoria, but depression or anxiety or other things, was available for the asking.

[00:19:34] Speaker 04:
I know at times that seems glib perhaps to suggest available for the asking, but

[00:19:43] Speaker 04:
I guess I would also say you can lead a horse to water, but you can't make her drink.

[00:19:49] Speaker 04:
It was available.

[00:19:51] Speaker 03:
And it was also recommended as a part of a treatment protocol.

[00:19:59] Speaker 03:
Correct.

[00:20:00] Speaker 03:
Both for personality disorder and gender dysphoria.

[00:20:05] Speaker 04:
Correct.

[00:20:06] Speaker 04:
It was recommended.

[00:20:11] Speaker 04:
Perhaps the waiver, as Judge McHugh noted, perhaps the waiver did get in the way a little bit of that.

[00:20:17] Speaker 04:
But Lamone Johnson was relatively prolific in asking for things and certainly could have.

[00:20:28] Speaker 05:
Could you address how our decision in the Lamb case relates to this argument that

[00:20:38] Speaker 05:
the defendants failed to provide gender-affirming care after the tapering?

[00:20:46] Speaker 04:
Well, I guess where I would try and point you is, Lamb v. Norwood, there was a diagnosis of gender dysphoria.

[00:20:59] Speaker 04:
In this case, we didn't have a diagnosis of gender dysphoria, and so

[00:21:05] Speaker 04:
without a diagnosis of gender dysphoria, you wouldn't really get to those four different potentialities that were addressed in Lamb v. Norwood.

[00:21:19] Speaker 04:
Back to perhaps Judge Temkovich, as he said, well, there's counseling available, there are mental health services available that aren't specific to gender dysphoria, and that's absolutely true.

[00:21:35] Speaker 04:
Absolutely true.

[00:21:37] Speaker 04:
But without a confirmed diagnosis of gender dysphoria, why would you provide gender-related services?

[00:21:55] Speaker 03:
Under the policy, can an inmate ask for a second opinion or for re-evaluation of a serious medical condition?

[00:22:05] Speaker 04:
There is an opportunity to ask for a second opinion.

[00:22:09] Speaker 04:
In the policy that is part of the record, I think it's

[00:22:14] Speaker 04:
volume two, page 63, 62 and 63, there's a reference in the policy too and Oklahoma DOC

[00:22:31] Speaker 04:
It's PIARA, initiating review by the PIARA, this committee that it's not, and that stands for personal identity administrative review authority.

[00:22:47] Speaker 04:
And that's not at the facility level.

[00:22:50] Speaker 04:
Chief mental health officer, that would be,

[00:22:55] Speaker 04:
Dr. Jones Boss, the chief medical officer for DOC.

[00:23:01] Speaker 03:
So the policy would permit a re-evaluation?

[00:23:06] Speaker 03:
Yes, that is correct.

[00:23:07] Speaker 03:
Was there a request here or was there any?

[00:23:11] Speaker 03:
Did Dr. Sanders block a re-evaluation?

[00:23:15] Speaker 03:
No.

[00:23:17] Speaker 03:
Did Ms.

[00:23:17] Speaker 03:
Green ask for

[00:23:18] Speaker 03:
for reevaluation.

[00:23:19] Speaker 04:
Apparently not.

[00:23:20] Speaker 04:
I didn't find anything.

[00:23:22] Speaker 04:
That should have showed up if it was filed by Lamone Johnson, a PIR request.

[00:23:30] Speaker 03:
Although she insisted that she stay on the hormone treatment.

[00:23:35] Speaker 03:
I mean, I guess that's a disagreement with the Jones evaluation.

[00:23:40] Speaker 03:
But at some point, doesn't a prison medical official have to credit the inmates

[00:23:47] Speaker 03:
complaints and maybe Sanders on his own should have initiated it.

[00:23:51] Speaker 03:
He's not qualified to, but he could have referred her back to Jonesburg.

[00:23:57] Speaker 04:
Yes, if he had questioned, somewhat like the Hardiman v. Smash case, if he had questioned whether the Jones report was correct, accurate, then the policy does allow for the facility to ask up through the chain, the Oklahoma DOC chain,

[00:24:25] Speaker 04:
for consideration or provision of a second opinion by the BIARA.

[00:24:31] Speaker 06:
Didn't Ms.

[00:24:31] Speaker 06:
Green ask to be reevaluated by Dr. Jones?

[00:24:36] Speaker 04:
She submitted that to Dr. Jones, that's correct.

[00:24:40] Speaker 06:
And kept saying that this is not correct, I do have gender dysmorphia.

[00:24:46] Speaker 04:
To Dr. Jones, correct.

[00:24:50] Speaker 06:
So your position is the request was not made to the right party, that it wasn't made to PIARA?

[00:25:01] Speaker 04:
The question was, was a request made by Lamond Johnson to the DOCPIARA, and I did not find... But it was pretty clear that Ms.

[00:25:16] Speaker 06:
Green was trying to get reevaluated because she did not agree with Dr. Jones's conclusion that she did not have gender dysmorphia.

[00:25:33] Speaker 04:
Yes, clear that she was asking Dr. Jones to re-evaluate her.

[00:25:42] Speaker 04:
Now, of course, Dr. Jones, my clients, Dr. Sanders and Nurse Larimer, work for CoreCivic, an incarceration services provider contracting with Oklahoma DOC, and Dr. Jones works with DOC.

[00:26:03] Speaker 04:
It's not as if Dr. Sanders in any way blocked or impeded or got in the way of a request between... Well, were they gatekeepers?

[00:26:14] Speaker 04:
No, not of that request.

[00:26:17] Speaker 04:
That would go to Dr. Jones and Dr. Morgan and the Chief Medical Officer for Oklahoma DOC and this PIARA committee to make a decision on whether or not

[00:26:29] Speaker 06:
Well, could Dr. Sanders have requested a reevaluation?

[00:26:33] Speaker 06:
He's the medical doctor who decides what the prescriptions are.

[00:26:37] Speaker 06:
Could he have said, I've got some concerns.

[00:26:40] Speaker 06:
We're having a lot of side effects.

[00:26:42] Speaker 06:
The prisoner is saying this is not correct.

[00:26:45] Speaker 06:
Can we reevaluate?

[00:26:49] Speaker 04:
Could he have?

[00:26:50] Speaker 04:
Yes, could he have.

[00:26:52] Speaker ?:
Yes.

[00:26:52] Speaker 04:
I believe he could have.

[00:26:55] Speaker 04:
The policy was in no way, you know, proscriptive that he couldn't do that.

[00:27:04] Speaker 04:
Okay, Council, I think your time has expired.

[00:27:05] Speaker 04:
It has.

[00:27:06] Speaker 04:
It goes quick.

[00:27:08] Speaker 03:
Yes, it does.

[00:27:10] Speaker 03:
All right, let's go back to the appellants.

[00:27:14] Speaker 03:
And this time, Mr. Flirty.

[00:27:17] Speaker 03:
Closer.

[00:27:30] Speaker 02:
may have pleased the court.

[00:27:31] Speaker 02:
Carlton floored for appellant Marilyn Green.

[00:27:35] Speaker 02:
This court asked for the clearest example of deliberate indifference to the plaintiff.

[00:27:41] Speaker 02:
This is the case about the defendant's ignoring Ms.

[00:27:43] Speaker 02:
Green's serious symptoms of anxiety, depression, and suicidal ideation.

[00:27:48] Speaker 02:
She requested multiple times for reevaluations and for requests to meet with Dr. Sanders or otherwise be treated.

[00:27:55] Speaker 02:
However, despite Ms.

[00:27:57] Speaker 02:
Green's warning of the likely symptoms of discontinuing her prescriptions and despite her numerous tick call requests and grievance requests, the defendants failed to provide any adequate care for her serious symptoms.

[00:28:08] Speaker 02:
The defendants clearly knew of these symptoms and disregarded them and a reasonable jury could find that this absence of care constitutes deliberate indifference.

[00:28:17] Speaker 03:
So your theory on this score then is that the gender dysphoria condition was so obvious

[00:28:25] Speaker 03:
any reasonable medical provider would have known that and provided treatment for that.

[00:28:31] Speaker 03:
Is it an obviousness?

[00:28:33] Speaker 02:
Yes, Your Honor, and it doesn't matter whether or not Ms.

[00:28:37] Speaker 02:
Green necessarily had gender dysphoria and whether it was obvious that she had that specific diagnosis because she had serious symptoms that required treatment, whether or not it was a personality disorder or a gender dysphoria diagnosis.

[00:28:53] Speaker 03:
As I understood the record, Dr. Sanders initiated a protocol that more slowly discontinued the hormone treatment in part because of the possibility or likelihood of side effects.

[00:29:11] Speaker 03:
Yes, Your Honor, but I don't think that... Was that medically proper or...?

[00:29:16] Speaker 02:
No, Your Honor, Dr. Sanders did not make a decision based on what was in the best interest of Ms.

[00:29:22] Speaker 02:
Green.

[00:29:23] Speaker 02:
Maybe it was better to taper it off versus cutting it off completely, but either way, it was disregarding that there would be serious symptoms, and Dr. Sanders should have known that there would be those symptoms and that Ms.

[00:29:35] Speaker 02:
Green would require treatment following that discontinuation.

[00:29:40] Speaker 02:
You pointed out, Judge Timkovich, that mental health was recommended even in Dr. Jones's report, but the most the defendants can point to is the weekly mental health rounds, which this court, in analyzing a similar factual situation in Hardeman v. Smith, suggested that that should be a question for the jury, that that shouldn't be decided on summary judgment.

[00:30:02] Speaker 02:
Here, mental health or other treatment was... Yes?

[00:30:05] Speaker 05:
I just asked you on Hardeman, was the plaintiff in that case

[00:30:10] Speaker 05:
ever evaluated for gender dysphoria?

[00:30:14] Speaker 02:
I believe so, Your Honor.

[00:30:15] Speaker 02:
An important additional fact in this case is that the plaintiff in that case did not have a prescription that was cut off, whereas here there's a prescription which goes to that the defendant should know that there was a serious medical condition here, that there was a need for treatment.

[00:30:34] Speaker 02:
As I was saying, there was not any adequate treatment provided here despite the requests.

[00:30:40] Speaker 02:
And the problem is failing to provide any care.

[00:30:43] Speaker 02:
It's not whether there is a specific treatment that was mandated for the defendants, but that they needed to treat these symptoms due to the numerous requests that Ms.

[00:30:52] Speaker 02:
Green was submitting.

[00:30:53] Speaker 03:
So is it your position that Dr. Jones had conducted a misdiagnosis?

[00:31:01] Speaker 02:
We believe that the evidence that Dr. Jones found in her report based on evaluations she conducted points to a gender dysphoria diagnosis and that her conclusion that Ms.

[00:31:13] Speaker 02:
Green did not have gender dysphoria is not aligned with that.

[00:31:17] Speaker 03:
In fact, there was a diagnosis of a personality disorder.

[00:31:22] Speaker 03:
Would you consider that also a serious medical condition?

[00:31:26] Speaker 03:
Yes, sir.

[00:31:29] Speaker 03:
satisfied the objective?

[00:31:31] Speaker 02:
Yes, Your Honor.

[00:31:31] Speaker 02:
And importantly here, there wasn't a plan to treat the personality disorder that was implemented instead.

[00:31:39] Speaker 02:
It was just cutting off the prescription as a result.

[00:31:42] Speaker 02:
The result, they saw they wasn't in compliance with the policy and so they cut off the prescription.

[00:31:48] Speaker 03:
Was mental health counseling made available to Ms.

[00:31:51] Speaker 03:
Green and she refused to

[00:31:54] Speaker 03:
participate or was it not available?

[00:31:58] Speaker 02:
Two points on that briefly, Your Honor.

[00:32:00] Speaker 02:
One is that it wasn't available because Ms.

[00:32:03] Speaker 02:
Green made numerous requests and those were not fulfilled.

[00:32:06] Speaker 02:
The defendants point to some waiver, but that waiver happened before Ms.

[00:32:09] Speaker 02:
Green knew that her prescription would be cut off.

[00:32:13] Speaker 02:
And she specifically said that, no, I don't need antidepressants right now because my prescription I'm getting covers that.

[00:32:22] Speaker 03:
What about mental health counseling?

[00:32:23] Speaker 03:
Did she ask for that and it was refused?

[00:32:26] Speaker 02:
She did make numerous requests for treatment.

[00:32:29] Speaker 03:
It was refused by the prison?

[00:32:31] Speaker 02:
There are numerous times where she requested treatment and it was not provided.

[00:32:36] Speaker 02:
not provided.

[00:32:37] Speaker 06:
But when you say treatment, she requested hormone treatment.

[00:32:41] Speaker 02:
She also requested, for instance, to meet with Dr. Sanders again.

[00:32:45] Speaker 06:
But when she requested mental health counseling, don't the records indicate that the mental health counselor met with her the same day?

[00:32:53] Speaker 02:
I believe, Your Honor, that there may be times where she was met on a one-off basis, but there was not.

[00:33:02] Speaker 02:
We were saying there was not adequate treatment provided in that.

[00:33:07] Speaker 03:
Because of the discontinuation of the hormone treatment?

[00:33:10] Speaker 02:
Because of the seriousness of her symptoms.

[00:33:12] Speaker 02:
The treatment provided of maybe a one-off appointment and no further follow-up treatments or the weekly mental health rounds.

[00:33:22] Speaker 02:
That's a question for a jury, whether that was adequate for the seriousness.

[00:33:27] Speaker 03:
How do you link that up to Dr. Sanders?

[00:33:30] Speaker 03:
Well, if part of the diagnosis was mental health treatment and it was available, Sanders wasn't qualified to do psychiatric treatment, how do you link up deliberate indifference to his conduct?

[00:33:46] Speaker 02:
We're saying, Your Honor, that Dr. Sanders knew there would be these serious effects, and he did look to the waiver and say that he wasn't going to provide mental health treatment because of the way that it happened earlier.

[00:34:00] Speaker 02:
And there were numerous requests over the next years that showed that Ms.

[00:34:05] Speaker 02:
Green continued to have symptoms that required treatment that were not cared for.

[00:34:13] Speaker 03:
Thank you, Council.

[00:34:14] Speaker 03:
Thank you.

[00:34:14] Speaker 03:
Congratulations, you're done.

[00:34:17] Speaker 03:
Council are excused and the case submitted.

[00:34:19] Speaker 03:
And I do want to thank the University for making this opportunity available to the students.

[00:34:24] Speaker 03:
You did a very nice job.

[00:34:26] Speaker 03:
And I hope you enjoyed working on the project and arguing before the 10th Circuit.

[00:34:30] Speaker 03:
So look for a case in the 8th Circuit next time.

[00:34:33] Speaker 03:
It's closer than I thought.