[00:00:01] Speaker 01:
Good morning your honors may it please the court my name is Amita to lack court appointed counsel for plaintiff appellant Andre Craver with the court's permission I'd like to reserve two minutes for rebuttal We are here today because the magistrate judge improperly granted summary judgment She weighed the evidence made credibility determination and drew inferences in favor of defendant

[00:00:23] Speaker 01:
But at this stage, the court's sole role is to determine, viewing the evidence in the light most favorable to the non-movement here, Mr. Craver, whether there is sufficient evidence in the record such that a reasonable jury could find for Mr. Craver.

[00:00:36] Speaker 01:
We urge this court to conclude that there was and to reverse and remand for further proceedings.

[00:00:41] Speaker 01:
Now, deliberate indifference to serious medical needs claims asks two questions.

[00:00:45] Speaker 01:
The first is assessed from the objective perspective and asks whether there was a serious deprivation under the Eighth Amendment standards.

[00:00:52] Speaker 01:
This court has held that the repeated deprivation of adequate nutrition is in itself a serious deprivation.

[00:00:59] Speaker 01:
And as such, in these claims, the question becomes whether the inmate was provided with inadequate nutrition.

[00:01:06] Speaker 00:
The second question... Deliberately inadequate?

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

[00:01:11] Speaker 01:
The second question is assessed from the subjective perspective and gets to the defendant's deliberate indifference towards the risk posed to the inmate's health.

[00:01:19] Speaker 01:
Craver presented sufficient evidence on both prongs here.

[00:01:22] Speaker 01:
And for that reason, summary judgment was inappropriately granted.

[00:01:26] Speaker 01:
So the first question here, the objective one, Craver presented evidence both of the direct caloric inadequacy of his diet, as well as indirect symptoms caused by the inadequate nutrition.

[00:01:37] Speaker 01:
Now, the magistrate judge contended that there was not enough evidence linking causationally the inadequate nutrition to these symptoms.

[00:01:43] Speaker 01:
But respectfully, there is evidence in the records suggesting that these symptoms could be tied to inadequate nutrition, or at least from which a reasonable jury could conclude so.

[00:01:52] Speaker 00:
I thought, Ms.

[00:01:52] Speaker 00:
Tellick, that he refused to drink a caloric drink because he didn't like it.

[00:01:59] Speaker 01:
Your honor, there is a disputed issue of fact on that issue specifically.

[00:02:02] Speaker 01:
Floyd contends that it was because he did not like it, but there is evidence in the record that Craver could not stomach the boost drink because of his chemotherapy.

[00:02:12] Speaker 00:
But there was no evidence of him vomiting other than his claim, correct?

[00:02:16] Speaker 01:
In Floyd's notes, Your Honor, he reported that he was vomiting to her as well as to his PCP.

[00:02:22] Speaker 01:
So there is some contemporaneous evidence in the record.

[00:02:24] Speaker 01:
And especially coupled, excuse me, with the fact that he was undergoing chemotherapy, we believe a reasonable jury could conclude that these were indeed true taste aversions.

[00:02:34] Speaker 01:
because there was separate evidence of his chemotherapy and multiple myeloma.

[00:02:39] Speaker 01:
This was not just a regular inmate claiming that they had aversions, but rather was somebody undergoing chemotherapy, and a reasonable jury could conclude, given the side effects of chemotherapy, that this was actually vomiting.

[00:02:50] Speaker 03:
Counsel, did Floyd meet with Mr. Craver often?

[00:02:54] Speaker 03:
Yes, Your Honor.

[00:02:55] Speaker 03:
And did Floyd also meet with the doctor that was in charge of Mr. Craver's health?

[00:03:04] Speaker 03:
Yes, your honor.

[00:03:05] Speaker 03:
And were there discussions between Floyd and the doctor regarding Mr. Craver's health?

[00:03:11] Speaker 01:
Yes, your honor.

[00:03:12] Speaker 03:
And were there discussions about his nutritional issues?

[00:03:17] Speaker 01:
Yes, your honor, but this court has held that the plaintiffs need not allege the complete deprivation of medical care in order to prevail in these types of claims.

[00:03:24] Speaker 01:
And in Snow v. McDaniel getting to the deliberate indifference prong, this court held that evidence of an improper motive can constitute deliberate indifference.

[00:03:33] Speaker 01:
So despite the fact that Floyd did provide some follow-up here, we do concede that.

[00:03:38] Speaker 01:
We contend that this is still amounting to deliberate indifference for a few reasons here.

[00:03:43] Speaker 01:
First, because there is evidence of improper motive in the record from which a reasonable jury could conclude that she was deliberately indifferent.

[00:03:49] Speaker 01:
So for the entire month of May, Floyd asserted that Craver's caloric requirements were from 2,700 to 3,100.

[00:03:56] Speaker 01:
Yet she was providing him with 2,400 at a maximum because he could not stomach the boost due to his taste aversions, and she knew that the boost had been, excuse me, taken off of his prescription at that point.

[00:04:08] Speaker 01:
Still, he was losing weight during this time, during the month of May.

[00:04:12] Speaker 01:
Regardless of this fact, she slashed his calories by 500 the day after Craver conducted a grievance interview against her, specifically alleging that she was providing him with inadequate nutrition.

[00:04:24] Speaker 01:
Now Floyd in her brief contends that this was because Craver's weight had stabilized but the evidence in the record suggests that a jury could find the opposite.

[00:04:32] Speaker 01:
Two weeks prior to her making this slash she indicated that Craver's weight had been trending downwards again.

[00:04:38] Speaker 01:
He was at an 8.8 percent body weight loss in the past six months and that a goal of his was to quote prevent further weight loss.

[00:04:45] Speaker 03:
Was he, and maybe I misread this in the record, but didn't he have an overweight BMI this entire time?

[00:04:51] Speaker 01:
Yes, Your Honor, Craver's weight was in the overweight category.

[00:04:54] Speaker 01:
However, we contend that because he was still losing weight, presented the other evidence of these indirect symptoms and presented direct evidence that Floyd knew his estimated nutritional needs were at a higher threshold than what she was providing him with, that that is still evidence of an inadequate nutrition.

[00:05:10] Speaker 03:
And did you see any muscle wasting?

[00:05:12] Speaker 01:
No, Your Honor, but according to MCSP policy itself,

[00:05:15] Speaker 01:
Craver was in the malnourished category.

[00:05:18] Speaker 01:
That's at 3ER 365 and 364.

[00:05:21] Speaker 01:
MCSP policy does not only define malnutrition as dependent on an inmate's BMI.

[00:05:26] Speaker 01:
In fact, there's two possible categories of malnutrition.

[00:05:29] Speaker 01:
And the other category is a severe caloric or protein deficiency indicated by weight loss.

[00:05:36] Speaker 01:
And that is weight loss greater than 5% in the past six months.

[00:05:39] Speaker 02:
But didn't Dr. Schnuck agree with Floyd the entire time that the nutritional

[00:05:45] Speaker 02:
intake that he was being given was sufficient?

[00:05:48] Speaker 01:
Wouldn't that be fatal to Craver's subjective prong?

[00:06:03] Speaker 01:
Of dizziness headaches and hunger pains this court reversed summary judgment finding that a reasonable jury still could find deliberate indifference on the part of the defendant and in snow versus McDaniel the case cited for improper motive just a few moments earlier the court held that despite there being a difference in medical opinion between a group of physicians and another group of physicians.

[00:06:21] Speaker 01:
as to what course of treatment was appropriate, that the lower court still improperly granted summary judgment because the one group of physicians did not recommend surgery.

[00:06:30] Speaker 02:
But isn't Foster distinguishable on the fact that I think that case was against a guard who deprived the inmate of food just to protect her own safety?

[00:06:40] Speaker 01:
Yes, and the court in that case, Your Honor, reversed summary judgment as well, indicating that just because the defendant did not comply with certain provisions that the prison required them to was not clear evidence that the defendant was not deliberately indifferent.

[00:06:56] Speaker 01:
And here as well, there was no indication that the inadequate nutrition was imposed

[00:07:00] Speaker 01:
As a kind of for a kind of penological purpose rather it was just deprivation in and of itself and because of that we contend because of that and the improper motive evidence and given the fact that Floyd slashed his calories while his weight was trending downwards there was no indication of the record contemporaneously as to why she made this decision.

[00:07:19] Speaker 01:
And because of the fact that Kraver presented evidence that these indirect symptoms were caused by the inadequate nutrition, we contend that this court should reverse and remand for further proceedings.

[00:07:31] Speaker 03:
So I still have a bit of a confusion here.

[00:07:36] Speaker 03:
Wasn't he undergoing chemotherapy at the time?

[00:07:39] Speaker 03:
Yes.

[00:07:40] Speaker 03:
Don't people sometimes under who are undergoing chemotherapy lose weight?

[00:07:44] Speaker 01:
Yes.

[00:07:44] Speaker 01:
So we actually have evidence in the record here.

[00:07:46] Speaker 01:
Floyd is, of course, entitled to present that theory to a jury.

[00:07:49] Speaker 01:
We do not.

[00:07:50] Speaker 01:
We concede that.

[00:07:51] Speaker 01:
However, there is evidence in the record here that Craver presented causationally linking these indirect symptoms to the inadequate nutrition.

[00:07:58] Speaker 01:
That is specifically that during the month of August, he received outside care packages from his family.

[00:08:03] Speaker 01:
I see my time is up, may I continue?

[00:08:04] Speaker 01:
Yes.

[00:08:05] Speaker 01:
He received outside packages from his family.

[00:08:08] Speaker 01:
His weight went up and his other symptoms, headaches, fatigue, hunger pains, stopped.

[00:08:12] Speaker 01:
At this time, the supplemental excerpts of record at 0118 indicate that he was in chemotherapy at this point.

[00:08:19] Speaker 01:
So he's undergoing chemotherapy and these other symptoms abate.

[00:08:22] Speaker 01:
His weight goes up when he is provided with outside care packages.

[00:08:26] Speaker 03:
And I will give you some more time, because I do want this question answered.

[00:08:29] Speaker 03:
What was in those care packages?

[00:08:31] Speaker 03:
I mean, is it chips, donuts, cookies?

[00:08:33] Speaker 03:
Yes.

[00:08:33] Speaker 01:
It's not healthy food, Your Honor, for sure.

[00:08:36] Speaker 01:
But that is just the provision of increased calories.

[00:08:39] Speaker 01:
And we contend that a reasonable jury could infer from this evidence, coupled with the improper mode of evidence, that both prongs were satisfied.

[00:08:46] Speaker 03:
OK.

[00:08:47] Speaker 03:
Do either of my colleagues have any further questions?

[00:08:50] Speaker 03:
Right.

[00:08:50] Speaker 03:
Thank you.

[00:08:51] Speaker 01:
Thank you, Your Honor.

[00:08:51] Speaker 03:
We'll give you a full two minutes for rebuttal.

[00:08:53] Speaker 03:
Thank you.

[00:09:08] Speaker 04:
Good morning, Deputy Attorney General Oliver Wu on behalf of Defendant Floyd.

[00:09:13] Speaker 04:
Ms.

[00:09:13] Speaker 04:
Floyd was not deliberately indifferent.

[00:09:15] Speaker 04:
She provided appropriate dietary consultation for Mr. Craver and stabilized his weight after March 2020 when he was placed under her care.

[00:09:23] Speaker 04:
Ms.

[00:09:23] Speaker 00:
Floyd also took numerous steps to ensure... Well, the weight went from 195 to 188.

[00:09:29] Speaker 00:
Is that stabilized?

[00:09:32] Speaker 04:
Yes, Your Honor.

[00:09:32] Speaker 04:
So most of Mr. Craver's weight loss occurred before March 2020 when he was placed under Ms.

[00:09:38] Speaker 04:
Floyd's care.

[00:09:39] Speaker 04:
And when he was placed under her care, he initially weighed about 199 pounds.

[00:09:44] Speaker 04:
Over the next couple of months, his weight stabilized around 195.

[00:09:48] Speaker 04:
And during periods following chemotherapy, his weight dropped because of the side effects of chemotherapy.

[00:09:56] Speaker 04:
So, for example, in June 2020, his weight dropped to around 188 pounds, and he regained that weight after he got off the chemotherapy and stabilized his weight then.

[00:10:07] Speaker 03:
Mr. Wu, I apologize for interrupting.

[00:10:09] Speaker 03:
Tell me the relationship between his weight starting to increase again and the care packages and the chemo.

[00:10:17] Speaker 03:
Was he still on chemo when he received those care packages and his weight increased?

[00:10:22] Speaker 04:
He was not on chemo during that time, but Mr. Klaver, they pointed out that his weight, that the care packages came in August 2020, but his weight actually peaked two months after in October at around 190 pounds when he was on chemo.

[00:10:38] Speaker 04:
After that chemotherapy session ended, his weight started dropping again as he lost water weight to a low of about 85

[00:10:46] Speaker 04:
about 85 kilograms, so around 187 pounds.

[00:10:50] Speaker 04:
By mid-December, his weight started to increase again as he put more distance between him and the chemotherapy.

[00:10:56] Speaker 04:
So Mr. Kraver's weight, while it were periods of fluctuation, they were generally correlated with his chemotherapy treatment.

[00:11:04] Speaker 04:
And more importantly, throughout this entire nine-month period, Ms.

[00:11:08] Speaker 04:
Floyd

[00:11:09] Speaker 04:
continued to assess Mr. Criver's weight and saw that he was not displaying any signs of malnutrition.

[00:11:15] Speaker 04:
There was no fat wasting, muscle wasting, he was exercising in his cell and he was reported as consistently eating all of his meals.

[00:11:24] Speaker 04:
The overwhelming majority of his medical records show that he ate 90 to 100 percent of all of his meals.

[00:11:30] Speaker 04:
There were a few individual days where he ate less than that, about 70 to 75 percent, but those were four or five days, not a large amount of time.

[00:11:40] Speaker 04:
Ms.

[00:11:40] Speaker 04:
Craver also spoke with Dr. Schnuck on a regular basis to make sure that Mr. Craver was healthy and was healthy and not showing signs of malnutrition.

[00:11:51] Speaker 04:
Ms.

[00:11:51] Speaker 04:
Floyd also spoke with the food administrator, her supervisor, to confirm that there were no food substitutions available and that she could not double Mr. Craver's portions as she asked and that the liquid nutritional supplements were the only option.

[00:12:06] Speaker 04:
Every time Mr. Craver complained to her about feeling hungry, she offered nutritional supplements and Mr. Craver refused them.

[00:12:12] Speaker 04:
She then offered him anti-nausea medications to help him tolerate the food and the supplements.

[00:12:17] Speaker 04:
Mr. Craver refused that as well.

[00:12:20] Speaker 04:
Mr. Craver also never complained of nausea to Dr. Schnuck, never asked for other types of anti-nausea medication.

[00:12:26] Speaker 00:
What do you say to Mr. Tilleck's claim that Floyd deliberately reduced by 500 calories the intake when Craver made a complaint?

[00:12:39] Speaker 04:
So that occurred in the beginning of May.

[00:12:42] Speaker 04:
And it was actually Dr. Snook that canceled the order of nutritional supplements, which was about 500 calories.

[00:12:50] Speaker 04:
from his daily meals because Mr. Quaver told Dr. Snook that he didn't like the nutritional supplements and didn't want to take them.

[00:12:57] Speaker 04:
And by that time, end of April, beginning of May, Mr. Quaver's weight had stabilized.

[00:13:03] Speaker 04:
Remember, he was originally placed under Ms.

[00:13:05] Speaker 04:
Floyd's care because his weight had dropped from over 210 pounds to just under 200.

[00:13:11] Speaker 04:
And so that rapid period of weight loss had already passed and Ms.

[00:13:15] Speaker 04:
Floyd had already begun to stabilize Mr. Quaver's weight.

[00:13:18] Speaker 04:
It's also worth noting that the initial recommendation was for 2,700 to 3,100 calories, which is significantly above the regular calorie recommendation for healthy adults.

[00:13:31] Speaker 04:
Even after the change, he was recommended 2,200 to 2,600 calories, which is again about slightly over the average recommended daily calorie consumption.

[00:13:43] Speaker 04:
Mr. Craver's meals also contained 2,400 calories on average, and so Mr. Craver had all of the calories presented to him that he would need to maintain his diet.

[00:13:53] Speaker 04:
Ms.

[00:13:53] Speaker 04:
Floyd actually spoke with kitchen staff to

[00:13:56] Speaker 04:
to ascertain what was being provided on a daily basis in Mr. Craver's meals to determine how often the foods that Mr. Craver could not tolerate were being served to him.

[00:14:08] Speaker 02:
Ms.

[00:14:08] Speaker 02:
Talik notes that this circuit has held before that nutritional deprivation can rise to the level of deliberate indifference.

[00:14:15] Speaker 02:
How do you distinguish those cases?

[00:14:17] Speaker 02:
I believe Foster was one of them.

[00:14:20] Speaker 04:
Yes.

[00:14:20] Speaker 04:
So nutritional deprivation can certainly advise the level of Duba indifference.

[00:14:25] Speaker 04:
But in Foster, the inmate was actually being kept from getting all of his meals.

[00:14:32] Speaker 04:
The prison guard refused to provide the inmate all of the meals that was ordered for him.

[00:14:37] Speaker 04:
In this case, there's no dispute that Mr. Foster received everything that was ordered.

[00:14:41] Speaker 04:
He simply didn't like what he was given.

[00:14:43] Speaker 02:
Mr. Craver.

[00:14:44] Speaker 04:
Mr. Craver, sorry.

[00:14:46] Speaker 04:
And so Mr. Craver simply didn't like what he was given, and the Eighth Amendment does not allow him to pick and choose what he wants to eat.

[00:14:53] Speaker 04:
And instead, Ms.

[00:14:54] Speaker 04:
Floyd took steps to help him tolerate and to make sure that he was getting all of the food he was required.

[00:14:59] Speaker 00:
Is there a conflict in the evidence about whether he refused because he didn't like it versus his claim that he couldn't tolerate it and vomited up the food?

[00:15:09] Speaker 04:
So I have two responses to that.

[00:15:11] Speaker 04:
First, with respect to the vomiting, Mr. Craver claimed to have vomited, but he never reported that to Dr. Schnuck, and the nursing and custody staff could not confirm those reports of vomiting.

[00:15:24] Speaker 04:
So at this time, Mr. Kraver was housed in the Correctional Treatment Center, the medical wing of the prison.

[00:15:30] Speaker 04:
And so nursing and custody staff would be monitoring him on a daily basis, and they never saw him vomiting.

[00:15:37] Speaker 04:
On top of that, they repeatedly asked Mr. Kraver to undergo visual and GI assessments to confirm his vomiting.

[00:15:44] Speaker 04:
He refused every single one of these assessments.

[00:15:46] Speaker 04:
And so from Ms.

[00:15:48] Speaker 04:
Floyd's perspective, there was nothing to corroborate Mr. Craver's reports of vomiting.

[00:15:52] Speaker 04:
And this court in Mendeola Martinez has actually held that a prisoner's complaint of hunger by itself is not sufficient to show deliberate indifference.

[00:16:02] Speaker 04:
And that case is much more similar to the situation we have here, where the only evidence Mr. Craver presents of his hunger and nutritional deprivation is his own reports of hunger.

[00:16:13] Speaker 04:
There were no objective corroborations of those reports to Ms.

[00:16:18] Speaker 04:
Floyd.

[00:16:19] Speaker 04:
And at bottom, the deliberate indifference standard is a subjective one.

[00:16:22] Speaker 04:
It doesn't ask what Mr. Craver claims he explains.

[00:16:26] Speaker 00:
Did you say deliberate indifference is a subjective standard?

[00:16:29] Speaker 04:
There is a subjective prong to the deliberate indifference standard.

[00:16:32] Speaker 04:
The standard asks whether Ms.

[00:16:34] Speaker 04:
Floyd recognized a serious risk to Mr. Craver's health and whether she disregarded that risk.

[00:16:40] Speaker 04:
But here, all of the evidence, all of the information presented to Ms.

[00:16:43] Speaker 04:
Floyd, the medical records, the consultations with Dr. Snook,

[00:16:47] Speaker 04:
her talks with the kitchen staff, her check-ins with custody and nursing staff, and as well as the various conversations she had with the food administrator, all showed that Mr. Craver was not at serious risk to his medical health.

[00:17:03] Speaker 04:
And Ms.

[00:17:03] Speaker 04:
Floyd didn't disregard it.

[00:17:05] Speaker 04:
She took multiple steps, talking to all other staff, offering anti-nausea medications, in order to address what

[00:17:13] Speaker 04:
in order to stabilize Mr. Cleaver's weight and address whatever risk there could have been.

[00:17:17] Speaker 04:
And so in this case, Ms.

[00:17:19] Speaker 04:
Floyd was not deliberately indifferent, and this court confirmed on that basis.

[00:17:23] Speaker 03:
Counsel, you've also asked this court to determine qualified immunity.

[00:17:27] Speaker 04:
Yes, Your Honor.

[00:17:27] Speaker 03:
That was not an issue dealt with in the district court.

[00:17:31] Speaker 03:
Why should we deal with it here instead of remanding it back?

[00:17:35] Speaker 04:
So the district court did not answer that question, because it found on the merits for Ms.

[00:17:39] Speaker 04:
Floyd.

[00:17:39] Speaker 04:
So it decided that it was unnecessary to address that question.

[00:17:43] Speaker 04:
But this court can affirm on any basis supported by the record.

[00:17:46] Speaker 04:
And so if it wants, it can reach the qualified immunity question.

[00:17:51] Speaker 04:
The plaintiff has not offered any precedent clearly establishing a right to different foods because he didn't like it.

[00:18:01] Speaker 04:
In fact, all of the cases that plaintiff cites are distinguishable.

[00:18:04] Speaker 04:
I already talked about Foster, and the same is true of Lawley, the other case that they cited

[00:18:09] Speaker 04:
in response to qualified immunity.

[00:18:12] Speaker 04:
Both of those cases dealt with situations where the prisoner was prohibited from getting food, where custody staff simply didn't want to give them food.

[00:18:21] Speaker 04:
But in this case, as I mentioned before, there's no dispute that Mr. Krueger got all of the food.

[00:18:26] Speaker 04:
Instead, Mendiola Martinez is more on point, where this court held that a prisoner's complaints of hunger by itself is not sufficient to establish deliberate indifference.

[00:18:36] Speaker 02:
I've got one more.

[00:18:41] Speaker 02:
The appellant leans heavily on the idea that Ms.

[00:18:45] Speaker 02:
Floyd had an improper motive in the way that she dealt out nutrition to Mr. Craig Craver.

[00:18:50] Speaker 02:
How do you respond to that argument?

[00:18:52] Speaker 04:
So the primary evidence plaintiff points to for improper motive is the reduction in calorie count.

[00:18:58] Speaker 04:
But the reduction in calorie count was because Mr. Floyd's, Mr. Craver's weight had stabilized.

[00:19:04] Speaker 04:
And the reduction in calorie count was also to account for the cancellation of the liquid nutritional supplements, the 500 calories.

[00:19:11] Speaker 04:
And that was canceled by Dr. Snook, not by Ms.

[00:19:14] Speaker 04:
Floyd.

[00:19:15] Speaker 04:
Thank you, Your Honor.

[00:19:17] Speaker 03:
Thank you.

[00:19:20] Speaker 03:
Ms.

[00:19:20] Speaker 03:
Tallott.

[00:19:21] Speaker 03:
We put two minutes back.

[00:19:31] Speaker 01:
So firstly, all of defendant's points should be duly argued to a jury when that time comes.

[00:19:36] Speaker 01:
But given the affirmative evidence in the record here, both from Craver's verified complaint himself and from Floyd's notes herself,

[00:19:43] Speaker 01:
This case should go to a jury.

[00:19:45] Speaker 01:
I'd like to point out a few pieces of evidence in the record here that rebut the characterizations made by defendants.

[00:19:50] Speaker 00:
Is it your claim that a verified complaint is evidence in the motion of summary judgment?

[00:19:55] Speaker 01:
Your Honor, taking all facts viewed in the favor of the non-movement here, and given that Craver could present this testimony to a jury, we believe the facts in his complaint should be considered here, especially given that the complaint was verified.

[00:20:07] Speaker 01:
And there is case law to this effect as well.

[00:20:09] Speaker 01:
That's Thomas versus Ponder.

[00:20:12] Speaker 00:
His affidavit and his sworn factual statements are considered.

[00:20:17] Speaker 01:
Yes, Your Honor, and Thomas.

[00:20:18] Speaker 00:
That's what you want.

[00:20:19] Speaker 01:
Yes, and Thomas versus Ponder suggests that a prisoner's verified complaint can be treated as an affidavit in cases for summary judgment as well.

[00:20:26] Speaker 01:
I hear the complaint was verified.

[00:20:28] Speaker 01:
But turning to the points in the record that rebut a few of defendants' characterizations now.

[00:20:33] Speaker 01:
First, at record 3ER 312, Craver Floyd herself, excuse me, notes that Craver did report vomiting to his PCP.

[00:20:41] Speaker 01:
Second,

[00:20:42] Speaker 01:
Craver's weight was decreasing at the point the caloric slash was made.

[00:20:46] Speaker 01:
He dropped from 197 to 190 just prior to the caloric decrease, and that was at 3ER320 and 319.

[00:20:57] Speaker 01:
Third, Craver was in chemotherapy.

[00:20:59] Speaker 00:
Could you give me the citation as to the record report of vomiting?

[00:21:06] Speaker 01:
Yes, Floyd notes that Craver reported the vomiting to the PCP at 3ER312, Your Honor.

[00:21:13] Speaker 01:
Craver was also undergoing chemotherapy at the time he did receive the care packages from his family and at the time that his other symptoms stopped and that finally is at SER 0118.

[00:21:24] Speaker 01:
But again, all of these points suggest that there are disputed issues of fact on both sides of the objective question and the subjective question.

[00:21:31] Speaker 01:
And for that reason, this court should reverse and remand.

[00:21:34] Speaker 01:
Thank you.

[00:21:35] Speaker 03:
Thank you.

[00:21:37] Speaker 03:
All right.

[00:21:37] Speaker 03:
Thank you, counsel.

[00:21:38] Speaker 03:
This matter is now submitted.