[00:00:01] Speaker 02:
So our final argument of the day is 25-8046, Jarvis versus Liggett.

[00:00:12] Speaker 02:
It's Mooney.

[00:00:13] Speaker 03:
Yes.

[00:00:13] Speaker 02:
Thank you.

[00:00:16] Speaker 02:
You may begin.

[00:00:17] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:20] Speaker 01:
Megan Mooney on behalf of the appellant, Mr. Danny Jarvis.

[00:00:24] Speaker 01:
I would like to reserve three minutes for a battle.

[00:00:27] Speaker 01:
In this case, medical professionals ordered that the officers do two things, take Mr. Jarvis to a dentist and give him oral rinses in the meantime.

[00:00:36] Speaker 01:
They did neither.

[00:00:36] Speaker 01:
As to the oral rinses claim, we showed that Officer Frank personally denied Mr. Jarvis this medically prescribed care despite Mr. Jarvis' repeated requests for them.

[00:00:47] Speaker 01:
Based on this court's precedence in Paw and Prince, this is enough to survive summary judgment and so this court should reverse.

[00:00:55] Speaker 01:
Now, I'd like to spend the remainder of my time on the dental appointments claim.

[00:00:59] Speaker 05:
Well, let me, before you pass the oral rinses, does it qualify for the level of severity we need that they understood that not giving him an oral rinse was going to result in an aggravation of a serious medical condition that would raise to the level of a constitutional violation?

[00:01:22] Speaker 05:
Or is this more like not giving him an aspirin?

[00:01:25] Speaker 01:
Your Honor, it rises to the level of a constitutional violation because the prescription was medically ordered by medical professionals and Officer Frank was not in a position to question that medical treatment.

[00:01:38] Speaker 05:
And based on the... Well, if a medical professional says give them a band-aid and they don't give them the band-aid, is that a constitutional violation?

[00:01:48] Speaker 01:
Potentially not in the case of a band-aid, Your Honor.

[00:01:51] Speaker 05:
So it's not whether a medical professional says to do it, is it?

[00:01:55] Speaker 01:
In this case, it is your honor, especially in light of the fact that by not giving the oral rinses, there's evidence in the record that Mr. Jarvis's health continued to decline.

[00:02:06] Speaker 01:
The oral rinses were prescribed at the May 28th appointment, and then he was only given one single salt water rinse, never hydrogen peroxide, and never salt water again.

[00:02:16] Speaker 01:
And then at the June 16th appointment, as argued in our reply brief, he was

[00:02:21] Speaker 01:
prescribed penicillin which is a higher form of infection treatment and therefore a reasonable juror could find that by not getting the prescribed oral rinses, his health did decline substantially and so Officer Frank is liable.

[00:02:37] Speaker 05:
The issue isn't whether his health declined, it's whether the officer in not getting him the oral rinse understood that it was going to result in a serious medical condition

[00:02:51] Speaker 05:
and was deliberately indifferent to that understanding.

[00:02:56] Speaker 05:
I mean, that's what we need, right?

[00:02:57] Speaker 01:
Yes, Your Honor, and this court's precedent in Paw shows that based on the evidence in this case, it does rise to that level.

[00:03:05] Speaker 01:
In Paw, as here, there is a general diagnosis of the individual that the medical professional stated and wrote in discharge instructions that the officer was then aware of.

[00:03:16] Speaker 01:
and then proceeded to not follow that general diagnosis and the prescribed medication.

[00:03:21] Speaker 01:
And so Officer Frank did know that the oral rinses were medically necessary to treat Mr. Jarvis's diagnosis of general inflammation of the jaw.

[00:03:31] Speaker 01:
And by not giving it, he ignored those medical orders, as in Paw, and therefore this court should reverse the summary judgment.

[00:03:39] Speaker 02:
You keep saying prescribed.

[00:03:41] Speaker 02:
Do you need a prescription to get the oral rinse that he was supposed to take?

[00:03:45] Speaker 02:
Not necessarily, Your Honor, and... Well, wasn't it available?

[00:03:51] Speaker 02:
A prisoner could get it himself, could he not?

[00:03:55] Speaker 01:
Based on Officer Frank's affidavit, he stated that if an inmate requested the oral rances, he should have been given it, which in this case just provides more evidence of Officer Frank's deliberate indifference, because...

[00:04:08] Speaker 02:
Could the plaintiff have gotten it himself?

[00:04:11] Speaker 02:
Could he have ordered it from, is it called a commissary at the prison?

[00:04:15] Speaker 02:
Couldn't he?

[00:04:16] Speaker 02:
My understanding was the record said he could have gotten the oral rinse himself.

[00:04:21] Speaker 02:
Is that correct?

[00:04:22] Speaker 01:
No, Your Honor.

[00:04:23] Speaker 01:
My understanding is that he would have had to ask Officer Frank to give the oral rinses and the officers admitted and Mr. Jarvis provided in the record that Mr. Jarvis did indeed request those oral rinses specifically from Officer Frank.

[00:04:38] Speaker 01:
on multiple times, Officer Frank only responded that he would check into it and then never gave an oral rinse to Mr. Jarvis, which resulted in him not getting the medically prescribed treatment.

[00:04:51] Speaker 05:
And one more question on this and then we'll let you switch to the other.

[00:04:55] Speaker 05:
But in Paw, it wasn't, first of all, it was much more severe.

[00:04:59] Speaker 05:
It was an alcohol, someone who had severe alcoholism and was supposed to be given medication wasn't.

[00:05:07] Speaker 05:
They also refused to take him to the hospital when his symptoms got quite severe.

[00:05:13] Speaker 05:
Here, any time the symptoms got bad and it was requested, they took him to the hospital.

[00:05:19] Speaker 05:
How is that deliberate indifference?

[00:05:21] Speaker 01:
Yes, Your Honor.

[00:05:22] Speaker 01:
In this case, you're correct.

[00:05:24] Speaker 01:
They took him to the emergency room.

[00:05:26] Speaker 01:
However, both Officer Frank and Officer Liggett knew that Mr. Jarvis needed to see a dentist, not- Well, that I'm- Oral rances.

[00:05:34] Speaker 01:
not an emergency room appointment.

[00:05:37] Speaker 01:
And at the emergency room appointment that Officer Frank took Mr. Jarvis to, they prescribed the oral rinses.

[00:05:43] Speaker 01:
And then at the second emergency room visit, they prescribed the penicillin.

[00:05:47] Speaker 01:
And so the officers were mandated to follow that care.

[00:05:51] Speaker 05:
And as this- Again, my question is, how can it be delivered in difference if we compare it to Paul, where here, when the symptoms got severe, they took him to the emergency room?

[00:06:02] Speaker 01:
Because, Your Honor, in this case, the officers knew... They don't have to be perfect.

[00:06:07] Speaker 05:
They can even be negligent.

[00:06:09] Speaker 05:
They just can't be deliberately indifferent.

[00:06:12] Speaker 01:
Yes, Your Honor, and in this case, Officer Frank knew of the general diagnosis, knew of the medical order to give the oral rinses, knew that Mr. Jarvis asked for them on multiple occasions, and continued to ignore the medical orders and substitute his lay knowledge or lack thereof,

[00:06:31] Speaker 01:
for that of a medical professional, and that rises to the level of deliberate indifference to the point that this court should reverse the district court's grant of summary judgment.

[00:06:41] Speaker 03:
Does it matter that he was getting ibuprofen and acetaminophen?

[00:06:47] Speaker 01:
It matters in the sense that it shows that Officer Frank was personally involved in the denials, but as to whether that impacts the detrimental effect of not getting the oral rinses, the answer is no.

[00:07:00] Speaker 01:
Deliberative difference no your honors because in this case it just shows that officer Frank was aware He was supposed to be getting medication was giving some of the prescribed medication But refusing to give others which again is what happened in this court's case of paw Okay, I'm turning to dental appointments if we accept that the defendants here were not day officers and

[00:07:27] Speaker 05:
It is does the record support that they had any obligation to schedule a dental appointment?

[00:07:33] Speaker 01:
Yes your honor based on the affirmative duty imposed by the Constitution and also through the additional policy at the facility.

[00:07:41] Speaker 05:
What affirmative duty imposed by the Constitution?

[00:07:43] Speaker 05:
You're gonna have to educate me.

[00:07:46] Speaker 01:
Your honor under the Eighth Amendment as implied by the Fourteenth Amendment if an officer knows of a

[00:07:53] Speaker 01:
substantial harm to an individual, the Constitution mandates they take action, which is the entire reason that we have the deliberate indifference standard.

[00:08:02] Speaker 05:
Well, they took action, they filled out the notes, and they put it for the day officer to see, and the day officer apparently dropped the ball.

[00:08:10] Speaker 05:
We actually made an appointment, but it was, I think, in August.

[00:08:15] Speaker 05:
How are they deliberately indifferent here, if it wasn't their responsibility to make the appointment?

[00:08:22] Speaker 01:
Two responses to that, Your Honor.

[00:08:23] Speaker 01:
First, it was their responsibility under the standard operating practice 3.1.3, which stated that detention officers shall follow medical orders as necessary.

[00:08:34] Speaker 01:
And second, Your Honors, they were day shift officers.

[00:08:38] Speaker 01:
While they were not day shift officers at the time of the emergency room appointment, there's evidence in the record that Officer Frank and Officer Liggett came back on shift and were working in the days following the emergency room appointments.

[00:08:52] Speaker 01:
And as this court held in paw, even if an officer receives discharge papers, puts them in the plaintiff's file, if they then later come back on to shift to see that those medical orders have not been followed, they then are prompted to take action.

[00:09:07] Speaker 01:
And by refusing to take action, that amounts to deliberate indifference because they knew of and then proceeded to ignore.

[00:09:15] Speaker 02:
Bill, if they gave it assuming,

[00:09:19] Speaker 02:
probably properly so that it would be taken care of by the next day shift and then they don't check again.

[00:09:25] Speaker 02:
Is that deliberate indifference or is that negligence?

[00:09:28] Speaker 01:
In the case that the officers are not aware that the medical orders are not being followed after they give the orders to a medical or to the other officers, that may not be deliberate indifference because they're missing that knowledge piece.

[00:09:42] Speaker 01:
However, in this case, Officer Frank and Officer Liggett knew that the medical orders were not being followed.

[00:09:48] Speaker 05:
Where's your site for it?

[00:09:49] Speaker 05:
Where's the evidence that they knew the medical that wasn't being followed?

[00:09:54] Speaker 01:
Yes, your honor.

[00:09:54] Speaker 01:
Supplemental volume 2 pages 42 through 45.

[00:09:58] Speaker 01:
That's Mr. Jarvis's affidavit stating that in the days following the emergency room visit, Officer Frank and Officer Liggett repeatedly interacted with Mr. Jarvis.

[00:10:09] Speaker 01:
And each time Mr. Jarvis stated that he needed to see a dentist, that his dentist appointment was long overdue and that he was still in excruciating dental pain.

[00:10:20] Speaker 01:
At those points, Officer Frank came back on shift on June 1st, which was after the medical ordered period had already passed and no appointment had been scheduled and much less had occurred.

[00:10:31] Speaker 01:
And for Officer Liggett, he came back on shift on June 20th, which was within the period of time that was medically ordered.

[00:10:38] Speaker 01:
still knew that no appointment had been scheduled and failed to take any action despite Mr. Jarvis's continued complaints.

[00:10:46] Speaker 03:
But, counsel, weren't the officers aware that other detention center employees were attempting to schedule a dental appointment and eventually did schedule one?

[00:10:58] Speaker 03:
If they were aware of that, how could they have been deliberately indifferent?

[00:11:02] Speaker 01:
Because, Your Honors, again, even if they believed that other officers were attempting to schedule an appointment, which there's no actual concrete evidence in the record that anyone attempted to schedule a dentist appointment before June 30th for that August 4th appointment, they were still told by Mr. Jarvis that no appointment had been scheduled.

[00:11:21] Speaker 03:
Wasn't there one scheduled that they had to cancel?

[00:11:25] Speaker 01:
Your Honor, the record is a little confusing on this point.

[00:11:28] Speaker 01:
I believe you're talking about the site at supplemental volume 2, page 35.

[00:11:32] Speaker 01:
However, in the light most favorable to Mr. Jarvis, that site states that on June 30, it was the first time that an appointment was scheduled for August 4.

[00:11:42] Speaker 01:
And this is further corroborated by the inmate request form submitted by Mr. Jarvis on June 30, which this court can find at volume 1, pages

[00:11:52] Speaker 01:
81 through 82, where on June 30, Mr. Jarvis stated that he understood on that day that an appointment was scheduled for August, but that he was requesting an additional earlier appointment be scheduled.

[00:12:06] Speaker 03:
I thought there was something to the effect that there was an appointment scheduled that had to be canceled for security reasons.

[00:12:14] Speaker 03:
What am I missing?

[00:12:15] Speaker 01:
Your Honor, that's one part of that one section on supplemental volume two, page 35.

[00:12:21] Speaker 01:
However, there's no other evidence in the record that supports that contention.

[00:12:25] Speaker 01:
And so a reasonable jury could understand the evidence to show that no appointment was made until June 30th.

[00:12:33] Speaker 05:
My opposing counsel state... Well, do you have the contrary evidence?

[00:12:36] Speaker 05:
I mean, the evidence is that it was scheduled and his family was aware of it.

[00:12:42] Speaker 05:
And for security reasons, they canceled it.

[00:12:44] Speaker 05:
because they don't want families to know when they're taking someone out of the prison.

[00:12:49] Speaker 05:
Do you have contrary evidence to say that, no, they never scheduled that?

[00:12:55] Speaker 01:
Your Honor, the evidence that I would point to is volume 1, pages 81 through 82, where on June 30, Mr. Jarvis stated that he had that appointment in August.

[00:13:05] Speaker 01:
So even if there was a different appointment that was scheduled,

[00:13:09] Speaker 01:
In the light most favorable to Mr. Jarvis, that would still be an appointment in August, which is much too far outside of that medically.

[00:13:15] Speaker 05:
Well, just because there's an appointment in August doesn't mean there wasn't an earlier one.

[00:13:19] Speaker 01:
Your Honor is taking supplemental volume two, page 35.

[00:13:23] Speaker 01:
The Sheriff's Office admitted before the district court that no appointment was scheduled until June 30th.

[00:13:29] Speaker 01:
And when that's taken in combination with that volume one at page 81 through 82,

[00:13:35] Speaker 01:
That shows that the June 30th appointment was for August 4th.

[00:13:39] Speaker 02:
Is there anything in the record about how hard it was to get a dental appointment?

[00:13:45] Speaker 02:
Sometimes you have to wait a long time and maybe he sets aside so much time for prison patients.

[00:13:52] Speaker 02:
Is there anything in the record about that?

[00:13:54] Speaker 01:
Not necessarily, Your Honor, but what is in the record is that Officer Frank and Officer Liggett admitted to never attempting to schedule Mr. Jarvis' dental appointment at any point, and in combination with the understanding that no appointment was scheduled until June 30th.

[00:14:09] Speaker 02:
Did they give a reason why they hadn't done it?

[00:14:13] Speaker 01:
No, Your Honors, they're stating that it was not their duty.

[00:14:15] Speaker 01:
However, as argued in opening and reply, the Constitution, Standard Operating Practice 3.1.3,

[00:14:24] Speaker 05:
Well, that says if it's an emergency, it would be their duty, right?

[00:14:29] Speaker 01:
Yes, Your Honor.

[00:14:29] Speaker 01:
However, taking Mr. Jarvis to the emergency room and then being told by medical professionals that he's needed to see a dentist within two and seven days would constitute an emergency.

[00:14:41] Speaker 01:
And also, my opposing counsel have conceded that Mr. Jarvis's medical

[00:14:47] Speaker 01:
Dental care met the objective prong, showing that it was sufficiently serious under the Constitution, and so a reasonable juror could find that it was also... Yeah, but the question is who was supposed to schedule the appointment, right?

[00:15:00] Speaker 05:
Yes, Your Honor.

[00:15:01] Speaker 05:
And so if it was the day officer, when they come back, they fill out the orders, they put it in the file, and the day officer, for whatever reason, dropped the ball, then you've got the wrong defendant.

[00:15:13] Speaker 01:
No, Your Honor, we do not have the wrong defendant because even if it was only day shift officers, again, Officer Frank and Officer Liggett came back in the days following the emergency room appointment as day shift officers, as argued in the reply brief.

[00:15:29] Speaker 01:
And this court's precedent in Paw shows that coming back on shift, being aware that no appointment had been scheduled or that the medical orders were not complied with and failing to act is enough to survive qualified immunity at summary judgment.

[00:15:42] Speaker 01:
Thank you.

[00:15:49] Speaker 02:
Mr. Olive.

[00:16:00] Speaker 00:
May it please the court, counsel.

[00:16:03] Speaker 00:
My name is Prentice Olive.

[00:16:05] Speaker 00:
I'm from the Wyoming Attorney General's Office, and I represent the Appalachians, Jenkins, Frank, and Liggett in their individual capacities.

[00:16:14] Speaker 00:
On January 17th, 2025, the district court entered summary judgment in favor of Jenkins, Frank, and Liggett, and we asked that this court would affirm.

[00:16:26] Speaker 00:
This is a deliberate indifference case.

[00:16:30] Speaker 00:
In this case, officers Frank and Liggett were asked to take Jarvis to the emergency room.

[00:16:39] Speaker 00:
They did that.

[00:16:43] Speaker 00:
They gave him access to medical care.

[00:16:48] Speaker 00:
After that point, as the court mentioned, they were aware that other day shift officers were scheduling a dental appointment.

[00:17:00] Speaker 00:
Based on this evidence, plaintiff... How were they aware of that?

[00:17:05] Speaker 00:
That some other officers were actually scheduling a dental appointment?

[00:17:11] Speaker 00:
Because that was the

[00:17:13] Speaker 00:
general policy and practice within the jail, Your Honor.

[00:17:17] Speaker 00:
Okay.

[00:17:17] Speaker 02:
So what you're saying is they knew that the policy and practice of the institution would be that someone on day shift would schedule a dental appointment, but they weren't specifically told that anyone was working on it.

[00:17:31] Speaker 02:
Is that right?

[00:17:32] Speaker 00:
I think that's correct.

[00:17:34] Speaker 00:
I believe that in his affidavit, Officer Frank stated that he was aware that other officers were scheduling an appointment, but the record doesn't reflect exactly how he was aware of that.

[00:17:57] Speaker 05:
Was there an earlier appointment scheduled that was then canceled

[00:18:02] Speaker 00:
Your Honor, the record is, as counsel mentioned, a little fuzzy.

[00:18:07] Speaker 00:
I do want to make a point about this document, this supplemental record to page 35.

[00:18:16] Speaker 00:
That actually isn't evidence in this case.

[00:18:22] Speaker 00:
If the court looks at it carefully, and we airingly mentioned it in our opening brief,

[00:18:28] Speaker 00:
looked at it again when preparing for this.

[00:18:31] Speaker 00:
It's not evidence.

[00:18:32] Speaker 00:
It's a response to a request for production.

[00:18:34] Speaker 00:
It's not any sort of sworn testimony.

[00:18:37] Speaker 00:
And it simply isn't evidence that the court can consider in this case.

[00:18:41] Speaker 00:
And we did raise that issue below in our briefing before the district court on summary judgment.

[00:18:50] Speaker 00:
And so that's simply not something that the court can consider here.

[00:18:55] Speaker 05:
So we're looking at one appointment scheduled in August.

[00:18:59] Speaker 00:
Correct, Your Honor.

[00:19:03] Speaker 00:
And the record reflects that defendants Frank and Liggett were not asked to schedule a dental appointment.

[00:19:14] Speaker 00:
There's no evidence whatsoever that anybody put upon them the responsibility of scheduling a subsequent dental appointment.

[00:19:25] Speaker 02:
But the plaintiff had complained to them

[00:19:28] Speaker 02:
that he wasn't getting a prompt dental appointment as recommended by the emergency room doctor.

[00:19:35] Speaker 02:
Is that right?

[00:19:36] Speaker 00:
Correct, Your Honor.

[00:19:37] Speaker 02:
And I think... So why doesn't that put a burden on them?

[00:19:40] Speaker 02:
When it wouldn't ordinarily be their job, but it hasn't been done, and they're advised it hasn't been done, don't they have some obligation at that point?

[00:19:52] Speaker 02:
Can they just ignore that?

[00:19:54] Speaker 00:
Well, Your Honor,

[00:19:56] Speaker 00:
other people are scheduling an appointment, I think it creates some sort of additional duty that just doesn't satisfy the deliberate indifference standard.

[00:20:05] Speaker 02:
It's maybe that... Well, but if they are informed or think according to policy that the dental appointment will be set, and then they learn otherwise to do nothing, you don't think could justify a finding of deliberate indifference?

[00:20:21] Speaker 00:
I don't think, Your Honor, it does, Your Honor, and the record

[00:20:25] Speaker 00:
also doesn't make clear at that point when they were asked whether there was any sort of dental appointment that may have actually been scheduled by somebody else, whether they were aware of that at all.

[00:20:38] Speaker 00:
It just says he mentioned to them and asked them about whether there was a dental appointment that he wanted to see a dentist.

[00:20:47] Speaker 00:
I think one other

[00:20:49] Speaker 00:
important point on this issue is that a plaintiff keeps saying that the evidence reflects that Frank and Liggett were subsequently day shift officers.

[00:21:00] Speaker 00:
And they point to two pieces of evidence.

[00:21:03] Speaker 00:
One is Jarvis's affidavit.

[00:21:05] Speaker 00:
And it just says that he mentioned to them about going to the dentist.

[00:21:10] Speaker 00:
It doesn't say when they were working, whether it was day, whether it was night.

[00:21:14] Speaker 00:
And the second piece of evidence they point to is these medication logs.

[00:21:20] Speaker 00:
Your Honor, I think they're very unclear.

[00:21:21] Speaker 00:
There's some sort of initials.

[00:21:23] Speaker 00:
And it's just impossible to determine who the initials are linked to and what's going on.

[00:21:31] Speaker 02:
It's impossible.

[00:21:32] Speaker 02:
We don't have any verified, authenticated initials by the defendants.

[00:21:38] Speaker 02:
Nothing to compare it to.

[00:21:40] Speaker 00:
Not that I'm aware, Your Honor.

[00:21:42] Speaker 00:
There's nothing in the record that identifies that this set of initials goes with

[00:21:49] Speaker 00:
this particular officer, it's just very, very unclear.

[00:21:55] Speaker 03:
Mr. Jarvis said in his affidavit, paragraph 17, I informed Defendants Frank and Liggett numerous times from 5-28-2023 through 7-24-2023 that I was in severe pain and was past the deadline when C.N.P.

[00:22:13] Speaker 03:
Gleason ordered I see a dentist.

[00:22:17] Speaker 03:
Numerous times.

[00:22:20] Speaker 03:
They know he was supposed to see a dentist within a week or two days.

[00:22:26] Speaker 03:
That at least shows knowledge, doesn't it?

[00:22:32] Speaker 03:
That he wasn't getting the appointment that Nurse Gleason said he had to have.

[00:22:38] Speaker 00:
It shows knowledge that he hadn't received the appointment correct, Your Honor.

[00:22:42] Speaker 03:
Right.

[00:22:43] Speaker 03:
And why wouldn't it also show deliberate indifference?

[00:22:46] Speaker 03:
Because it shows that it doesn't look like they did anything.

[00:22:50] Speaker 00:
Well, Your Honor, because they were aware that at that time the other officers were scheduling an appointment.

[00:22:57] Speaker 03:
And as I mentioned... Well, Counsel, does it make a difference?

[00:23:00] Speaker 03:
This is a small facility.

[00:23:01] Speaker 03:
As I understand it, there's only seven people there.

[00:23:05] Speaker 03:
Shouldn't that make a difference on how we look at this?

[00:23:11] Speaker 03:
It's clear that someone...

[00:23:13] Speaker 03:
that no one had scheduled a timely appointment?

[00:23:21] Speaker 00:
Yes, Your Honor.

[00:23:22] Speaker 00:
I think actually that does make a difference, because there are a limited number of officers with a lot of duties.

[00:23:37] Speaker 00:
And I think.

[00:23:38] Speaker 03:
And no medical staff, correct?

[00:23:41] Speaker 00:
Correct, Your Honor.

[00:23:42] Speaker 00:
I think that's actually imposing an additional burden upon Frank and Liggett.

[00:23:47] Speaker 00:
Somebody else is doing the job already.

[00:23:49] Speaker 00:
We're having a small facility.

[00:23:53] Speaker 00:
And when they're aware that other people are scheduling an appointment, it's essentially making them have a supervisor role in drawing them away.

[00:24:04] Speaker 03:
I'm back to Judge Hartz.

[00:24:05] Speaker 03:
They were aware others were scheduling an appointment.

[00:24:08] Speaker 03:
And then Mr. Jarvis says,

[00:24:11] Speaker 03:
Hey, guess what?

[00:24:13] Speaker 03:
I don't have an appointment on the schedule that Nurse Gleason said and complained about that and said that he was in severe pain.

[00:24:24] Speaker 03:
Why doesn't that make a difference?

[00:24:26] Speaker 03:
Why doesn't that overcome this notion, well, others are going to take care of it?

[00:24:30] Speaker 00:
Well, I think, John, or because at that point,

[00:24:37] Speaker 00:
to satisfy the standard of deliberate indifference.

[00:24:40] Speaker 00:
I mean, it would really make them have to micromanage the other officers.

[00:24:43] Speaker 03:
They're not... All they've got to do is ask a question or make a phone call.

[00:24:48] Speaker 03:
We're not talking about something that's going to take hours to take care of.

[00:24:51] Speaker 00:
Your Honor, I think it really goes back to the question of whether these individuals

[00:25:04] Speaker 00:
had the responsibility to schedule a dental appointment to satisfy the state of mind for disregarding Jarvis' need to have a dental appointment.

[00:25:21] Speaker 03:
I know we probably want to talk with you about rinses, but if we get to the question of clearly established law on the dental appointment, does Mr. Jarvis need to have a dental appointment case

[00:25:35] Speaker 03:
Your brief seems to call for an on-point case.

[00:25:41] Speaker 03:
Does it have to be a delayed dental appointment?

[00:25:44] Speaker 00:
Your Honor, I don't know if it specifically has to be a delayed dental appointment.

[00:25:49] Speaker 00:
I think it would have to be some sort of an appointment.

[00:25:53] Speaker 00:
And with clearly established law, I think really in this case, it has to be some sort of case

[00:26:05] Speaker 00:
conferring this responsibility upon officers who weren't supposed to or asked to schedule an appointment to thereafter essentially act as a supervisor and micromanage other officers to get an appointment scheduled.

[00:26:26] Speaker 00:
I mean, that is what the plaintiffs really are asking the court to

[00:26:35] Speaker 00:
decide in this case is that simply because you take somebody to the emergency room thereafter, you have to micromanage and make sure that other officers are providing that medical care, even though you yourself are simply just a normal detention officer.

[00:26:59] Speaker 00:
And Your Honor, moving on to the claim.

[00:27:05] Speaker 02:
Were the people who were supposed to make the appointment just plain old detention officers?

[00:27:11] Speaker 02:
Did they have some special status that the defendants did not have?

[00:27:15] Speaker 00:
Not that I'm aware, Your Honor.

[00:27:18] Speaker 00:
There is only really one reference to the record or in the record to somebody else who is making a dental appointment.

[00:27:25] Speaker 00:
So we don't really know.

[00:27:27] Speaker 00:
But as far as the record does reflect, that other person was just a normal detention officer.

[00:27:34] Speaker 00:
Turning to the claim for the oral renseh genre, it's really important, as the court mentioned, I don't think there's any law that establishes that you can just satisfy the standard by saying, well, there's a medical order

[00:27:57] Speaker 00:
And therefore, not providing oral rinses poses risk of serious harm to the plaintiff.

[00:28:05] Speaker 00:
There has to be some knowledge by Frank.

[00:28:08] Speaker 00:
And I want to make it clear that this oral rinse claim is only against Frank.

[00:28:13] Speaker 00:
It's not against Liggett.

[00:28:17] Speaker 00:
And plaintiffs make all these statements about some sort of an infection.

[00:28:23] Speaker 00:
And there's no evidence in the record that Jarvis

[00:28:26] Speaker 00:
ever had an infection.

[00:28:29] Speaker 00:
They did prescribe oral rinses and these other antibiotics.

[00:28:34] Speaker 00:
But there's no evidence in the record that Jarvis actually had an infection, and much less that Frank knew that.

[00:28:41] Speaker 05:
They prescribed penicillin in his next visit.

[00:28:46] Speaker 05:
Doesn't that suggest he had an infection?

[00:28:52] Speaker 00:
I don't think so, Your Honor.

[00:28:55] Speaker 00:
We don't know why they prescribe penicillin.

[00:28:58] Speaker 00:
We do have the doctor's notes.

[00:29:00] Speaker 00:
And there doesn't seem to be any reference to an infection.

[00:29:04] Speaker 00:
So we don't know why.

[00:29:05] Speaker 00:
And again, that imposes upon the officer some sort of knowledge that the record never establishes that they had.

[00:29:17] Speaker 00:
There's no evidence that there was any discussion about why the oral rinses were prescribed.

[00:29:25] Speaker 00:
They had any idea about the purposes, or that Frank had any idea about the purposes of these rinses.

[00:29:33] Speaker 03:
Why isn't it enough that a medical professional says that he needs these oral rinses multiple times a day, and then they don't do it?

[00:29:45] Speaker 03:
Should they be in a position to second-guess the medical professional?

[00:29:50] Speaker 03:
Say, oh, it's no big deal.

[00:29:52] Speaker 03:
We'll just give them an Advil.

[00:29:55] Speaker 03:
But that isn't really their role.

[00:29:58] Speaker 03:
They're on notice from a medical professional that he needs this.

[00:30:01] Speaker 03:
They're on notice from him that he's in pain.

[00:30:05] Speaker 03:
Now, whether it's based on an infection or something else, if someone is in substantial pain and that's what he's saying and there's nothing to contradict to show that he wasn't, then why isn't that deliberate indifference?

[00:30:24] Speaker 03:
They're not, I mean, the general principle is that a detention officer can't withhold medically prescribed treatment.

[00:30:33] Speaker 03:
Why isn't that a violation of clearly established law if they're not complying with the order?

[00:30:40] Speaker 00:
Your Honor, because it doesn't establish that they knew that it would pose a risk of serious harm.

[00:30:44] Speaker 03:
What about pain?

[00:30:45] Speaker 03:
Isn't pain enough?

[00:30:47] Speaker 03:
Severe pain.

[00:30:48] Speaker 03:
Somebody has severe toothache or gum pain.

[00:30:54] Speaker 03:
Why isn't that enough?

[00:30:57] Speaker 00:
Well, Your Honor, because there's no evidence that the oral rinses was all linked to the pain whatsoever.

[00:31:05] Speaker 03:
There was evidence because the medical professionals said that that's what they should do.

[00:31:10] Speaker 03:
Why isn't that the evidence?

[00:31:14] Speaker 00:
Because the fact that the

[00:31:16] Speaker 00:
Medical professionals said that he should receive oral rinses.

[00:31:20] Speaker 00:
It doesn't show that the failure to provide oral rinses had anything to do with the pain he experienced.

[00:31:28] Speaker 03:
He's not entitled to any inference on that.

[00:31:32] Speaker 00:
No, Your Honor.

[00:31:33] Speaker 00:
Why not?

[00:31:40] Speaker 00:
I think that's really pushing it.

[00:31:42] Speaker 00:
I mean, we don't know what those oral rinses were prescribed for.

[00:31:47] Speaker 04:
How can you possibly say that they... Well, we know they were prescribed because of his problem with his dental, his teeth.

[00:31:55] Speaker 00:
Right.

[00:31:56] Speaker 00:
I mean, to establish that those were then linked to the pain rather than something else, I mean, there's nothing in the record that would require a

[00:32:10] Speaker 00:
Big jump.

[00:32:14] Speaker 00:
And I don't think that's something that the court can do, is take that sort of leap.

[00:32:18] Speaker 00:
I see my time is up.

[00:32:22] Speaker 00:
So I would just ask the court to affirm the district court's entry of summary judgment.

[00:32:28] Speaker 00:
Thank you, counsel.

[00:32:30] Speaker 02:
Does the appellant have any time left?

[00:32:36] Speaker 02:
Thank you.

[00:32:36] Speaker 02:
Case submitted.

[00:32:37] Speaker 02:
Counselor excused.

[00:32:39] Speaker 02:
Nice job.

[00:32:42] Speaker 02:
Knowing the record well helps.

[00:32:44] Speaker 02:
And correcting us when necessary is something you need to get used to doing.

[00:32:52] Speaker 02:
You're the instructor?

[00:32:57] Speaker 02:
Well done.

[00:32:57] Speaker 02:
So, court is in recess until nine tomorrow morning.