[00:00:00] Speaker 03:
On the briefs, the first case on calendar for argument is Farr versus Johnson.

[00:00:06] Speaker 03:
Counsel for appellants, please approach.

[00:00:15] Speaker 03:
Good morning, counsel.

[00:00:16] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:19] Speaker 04:
My name is Maggie Amen on behalf of the plaintiff appellant, Ms.

[00:00:22] Speaker 04:
Robin Farr.

[00:00:24] Speaker 04:
Today, we ask that this court reverse the district court's grant of summary judgment and find that it aired when it granted Johnson's motion despite genuine issues of material fact.

[00:00:34] Speaker 04:
My client, Ms.

[00:00:35] Speaker 04:
Robin Farr, is an elderly wheelchair bound woman who suffers from Crohn's disease as well as other chronic illnesses.

[00:00:41] Speaker 04:
She's currently in the custody of the Arizona State Department of Corrections.

[00:00:45] Speaker 04:
In August of 2021, physician assistant Timothy Johnson overrode her prior treatment plan

[00:00:51] Speaker 04:
and changed the administration of her necessary Crohn's medication from KOP, or keep on person, to DOT, or direct observed therapy, to be taken at set times at pill call.

[00:01:02] Speaker 04:
Ms.

[00:01:03] Speaker 04:
Farr appealed this decision internally, and when administrative remedies proved unsuccessful, she turned to the federal judiciary for recourse.

[00:01:10] Speaker 04:
The district court, however, granted physician assistant Johnson's motion for summary judgment.

[00:01:15] Speaker 04:
But this was error because there are at least two genuine issues of material fact.

[00:01:20] Speaker 04:
First, regarding why Johnson made the medication administration change and second, regarding his knowledge about the harm that the change caused.

[00:01:29] Speaker 03:
Council, why is the reason for making the change a material issue a fact?

[00:01:35] Speaker 04:
Your Honor, the reason behind a provider's choice to engage in a course of treatment or in this case to change the medication

[00:01:43] Speaker 04:
is a material issue of fact because this court's precedent has underscored the why or the impetus behind the change is central to evaluating the responsiveness of the provider to the serious medical needs, getting to the objective, subjective prong.

[00:01:58] Speaker 03:
So what's your best case from the Ninth Circuit that says the why of the action is a material issue?

[00:02:07] Speaker 03:
What case says that?

[00:02:08] Speaker 04:
The best case to illustrate that is Colwell versus Bannister, where this court held that the blanket administration of a prison policy using strong language is the paradigm of deliberate indifference, underscoring that when a provider takes a medical action not pursuant to a medical judgment, but rather pursuant to an administrative policy, that amounts to deliberate indifference.

[00:02:32] Speaker 01:
Counsel, I was struck by the fact that Mr. Johnson, a physician's assistant, was overriding a doctor's prescription.

[00:02:41] Speaker 01:
Is that common within the prison system or is that something that we should take note of?

[00:02:48] Speaker 04:
I'm unable to speak to how common it is.

[00:02:52] Speaker 04:
However, Physician Assistant Johnson did have authority to override it, but to get to the factual premise of Your Honor's question, Ms.

[00:03:01] Speaker 04:
Farr had been prescribed her medication as KOP by medical doctors and DOs for at least seven years prior to August of 2021.

[00:03:11] Speaker 01:
I think Mr. Johnson's premise for changing it was because there was a centurion policy that you could not have these types of medicines be keep on person.

[00:03:22] Speaker 01:
Is there in fact any record evidence of such a policy?

[00:03:26] Speaker 04:
The district court, Your Honor, found a disputed issue of fact on this point and stroke the affidavit of James Flenno that had been offered.

[00:03:35] Speaker 04:
in support of this policy.

[00:03:37] Speaker 04:
However, it's clear that this was the assertion that Johnson put forward.

[00:03:40] Speaker 04:
He said this in his motion for summary judgment, in his declaration of facts, as well as his affidavit attached to the motion.

[00:03:47] Speaker 04:
And in Colwell, it was in fact an informal policy.

[00:03:51] Speaker 04:
And we see that in acting pursuant to this alleged policy, that's where the deliberate indifference came in.

[00:03:58] Speaker 02:
Council, so can you explain to me why it matters, why the change was made, if the change was still medically acceptable?

[00:04:06] Speaker 04:
Your Honor, in part it's because it removes the obligation of the providers to have these individualized medical judgments and to be responsive, to echo the language of Jett versus Penner, to the objectively serious medical need.

[00:04:21] Speaker 02:
But, I mean, if he's treated, if the treatment is still medically acceptable, why does it matter if it was for policy or because, you know, for any other reason?

[00:04:31] Speaker 02:
How does that violate the Eighth Amendment?

[00:04:33] Speaker 04:
I would push back on the premise that this was a medically acceptable course of treatment.

[00:04:38] Speaker 02:
Okay, so where's the medical, what's the objective evidence to show that this was a medically unacceptable treatment?

[00:04:44] Speaker 04:
We can look first to the grievances submitted by Ms.

[00:04:47] Speaker 04:
Farr, which provide a chronological outline of her subjects.

[00:04:50] Speaker 02:
So her subjective ailments.

[00:04:52] Speaker 02:
But where's the objective medical evidence showing that this was unacceptable treatment?

[00:04:59] Speaker 04:
While there wasn't any sort of expert testimony for Ms.

[00:05:02] Speaker 04:
Farr in this case, there is disagreement where other providers did not feel as though this was

[00:05:07] Speaker 01:
the acceptable course of treatment and we see that didn't doctor Ibrahim an actual doctor prescribe it keep on person even after the change had happened with Johnson.

[00:05:18] Speaker 01:
That's right your honor in spring of twenty twenty two and wasn't there another doctor I forgot his name.

[00:05:23] Speaker 01:
Also who.

[00:05:26] Speaker 01:
Didn't he prescribe his keep on person.

[00:05:28] Speaker 04:
He did, and the medical records are not entirely complete, but some medical provider had prescribed this medication as KOP for seven years prior.

[00:05:37] Speaker 02:
So did any doctor opine that not keeping it on person would be medically unacceptable?

[00:05:42] Speaker 04:
Not using those terms, however, the physicians did change it back to KOP, including, as Your Honor mentioned, Dr. Ibrahim in spring of 2020.

[00:05:52] Speaker 01:
One of the effects of, at least with the dicyclamine, of moving it to DOT is that it reduced the dosage over the course of the day, and Ms.

[00:06:04] Speaker 01:
Farr presented evidence that she suffered symptoms

[00:06:07] Speaker 01:
you know, flare-ups and other things.

[00:06:09] Speaker 01:
So at least it would seem to me to be a tribal question whether it was a medically appropriate thing to do.

[00:06:15] Speaker 04:
I would agree, Your Honor, and just to clarify, the dosage issue is not at issue here on appeal, but what you're getting at is that she was deprived of the most, of the effective use of these medications.

[00:06:29] Speaker 01:
Why is it not at issue in this appeal?

[00:06:32] Speaker 04:
I believe that the district court did not address that Ms.

[00:06:36] Speaker 04:
Farr was bringing it up below.

[00:06:38] Speaker 04:
And so what we're discussing is the administration.

[00:06:41] Speaker 01:
But doesn't it affect our evaluation of deliberate indifference, whether Mr. Johnson might have been aware of a significant risk of harm if the effect of his action is to reduce a dosage from what a doctor had prescribed?

[00:06:53] Speaker 04:
Certainly it could weigh into that, Your Honor.

[00:06:55] Speaker 04:
However, what we're emphasizing here is that in denying her the effective ability to treat her symptoms as they arose is what contributed to the harm that she suffered in this case.

[00:07:08] Speaker 02:
In several of her grievances... Is there a case that says that we could look to the patient's subjective, you know, description of her ailments to determine what's an objectively, medically acceptable course of treatment?

[00:07:23] Speaker 04:
None that has a rule statement to that effect.

[00:07:26] Speaker 04:
However, as occurred in JET, the court was able to make determinations on the subjective prong based on medical records as well as testimony.

[00:07:37] Speaker 04:
There's not a need for the physician.

[00:07:38] Speaker 03:
Well, Counsel, in Hunt, we did look to the complaints of the inmate regarding the pain that was caused by the lack of treatment.

[00:07:48] Speaker 03:
So we do have some precedent that allows us to look to

[00:07:52] Speaker 03:
the complaints of the inmate to determine whether or not the treatment is effective.

[00:07:58] Speaker 03:
That's right, Your Honor.

[00:07:59] Speaker 01:
I mean, I think one of Mr. Johnson's record notes noted the actual symptoms that she was experiencing from them.

[00:08:09] Speaker 01:
I don't think it was just her saying that this was happening.

[00:08:11] Speaker 01:
There was some record evidence that the flare-ups were happening, correct?

[00:08:15] Speaker 04:
That's right, Your Honor, and I see him nearing the end of my time.

[00:08:17] Speaker 03:
Could you just, for the record, talk briefly about your second?

[00:08:21] Speaker 03:
We delayed you on the first material issue of fact, so could you just briefly talk about the second issue of fact?

[00:08:27] Speaker 04:
Yes, Your Honor.

[00:08:28] Speaker 04:
There's also a material issue of fact as to Johnson's knowledge about the harm that the change caused.

[00:08:33] Speaker 04:
This is referring to the period between August 2021 and December 2021, where Ms.

[00:08:39] Speaker 04:
Farr's symptoms increased both in frequency and severity.

[00:08:43] Speaker 04:
The best piece of evidence that Your Honors can review are the December 2, 2021 patient notes, where P.A.

[00:08:49] Speaker 04:
Johnson notes that she has a lot

[00:08:51] Speaker 04:
of Crohn's symptoms, including nausea and diarrhea, but he does not change her medication back, and he also does not prescribe her Imodium, which also treats these symptoms as well.

[00:09:04] Speaker 01:
There were many grievances that she filed after the change in the prescription.

[00:09:13] Speaker 01:
Is there anything in the record to suggest that Johnson was made aware of these grievances or is that a reasonable inference that we could draw from all the grievances that something like this might come to his attention?

[00:09:26] Speaker 04:
Your Honor, Johnson asserts in his response brief that he did not have knowledge of these grievances.

[00:09:32] Speaker 04:
However, as Ms.

[00:09:34] Speaker 04:
Farr states throughout these grievances, she had spoken to Johnson.

[00:09:38] Speaker 04:
She even saw him for, I believe, an evaluation of cancer lesions in October.

[00:09:44] Speaker 04:
And so I believe that it is a reasonable inference to be drawn that he

[00:09:48] Speaker 04:
was spoken to by Ms.

[00:09:50] Speaker 04:
Farr about this.

[00:09:51] Speaker 04:
And even if that isn't the case, his own notes indicate that he spoke to her about this issue on December 2nd, 2021.

[00:09:58] Speaker 04:
All right.

[00:09:59] Speaker 03:
Thank you, counsel.

[00:10:00] Speaker 04:
Thank you.

[00:10:01] Speaker 04:
For these reasons, we respectfully request that you reverse with instructions for the appointment of pro bono counsel.

[00:10:06] Speaker 03:
Thank you.

[00:10:06] Speaker 03:
Thank you.

[00:10:06] Speaker 03:
We'll hear from the state.

[00:10:13] Speaker 05:
Good morning.

[00:10:14] Speaker 05:
May it please the court, Sarah Barnes,

[00:10:16] Speaker 05:
And I am here on behalf of appellee P.A.

[00:10:19] Speaker 05:
Johnson.

[00:10:21] Speaker 05:
We obviously would like this court to affirm the district court's grant of summary judgment below for P.A.

[00:10:27] Speaker 05:
Johnson.

[00:10:28] Speaker 05:
And I want to start first with two main points to address, which is there is a loan claim for deliberate indifference against P.A.

[00:10:36] Speaker 05:
Johnson only.

[00:10:37] Speaker 05:
There's no negligence claim.

[00:10:38] Speaker 05:
There's no Monell claim here, and he's not subject to a policy claim.

[00:10:42] Speaker 05:
There's no dispute that P.A.

[00:10:43] Speaker 05:
Johnson did not enact the policy to which he refers, nor is there any dispute in the record that that is so.

[00:10:52] Speaker 03:
In fact... Is there any, as Judge Sanchez inquired, is there anything in the record that establishes the existence of a policy?

[00:11:02] Speaker 03:
Other than the affidavit of P.A.

[00:11:05] Speaker 03:
Johnson, is there any record of this policy?

[00:11:08] Speaker 05:
The policy is established by not only P.H.

[00:11:12] Speaker 05:
Johnson's declaration, which is not controverted in that regard, but also by the fact that the keep-on-person changes were made.

[00:11:20] Speaker 05:
And a side note, keep-on-person and as needed are not the same thing.

[00:11:26] Speaker 05:
And I think that there is some confusion about the fact that where there's references to as needed, that automatically means KOP, and it does not.

[00:11:34] Speaker 03:
As needed means it can't be as needed has to be keep on person because there are there are scheduled times for the observed therapy.

[00:11:44] Speaker 03:
So how can that be anything other than keep on person?

[00:11:48] Speaker 05:
Because there's multiple references in the drug prescription orders that talk about as needed.

[00:11:54] Speaker 05:
And what happens is, and even in Dr. Ibrahim's own note on A22 of 2021 regarding the Promethazine, it says AM pill call, PM pill call as needed.

[00:12:09] Speaker 03:
Well, but that specifies to the pill call, so that's direct observation therapy.

[00:12:14] Speaker 03:
but as needed without that reference would not be consistent with direct observation therapy, would it?

[00:12:23] Speaker 05:
There's no prescription for her that's at issue that says that it can't be as needed under the direct observation therapy.

[00:12:32] Speaker 05:
In other words, she comes at the AM, if she wants that medication, she can take it if she's feeling like she needs it at that time, along with the multiple other medications that she was prescribed.

[00:12:43] Speaker 05:
to have at the AM pill call.

[00:12:44] Speaker 05:
And then again, same thing at PM pill call.

[00:12:47] Speaker 03:
And both these medications... So what if she has symptoms in the interim?

[00:12:50] Speaker 05:
There is no medical evidence in this case whatsoever that she needed to take one of those two medications, Dicyclamine or the Promethazine, at

[00:13:01] Speaker 01:
the time that she's all of a sudden having sure there is there's there's plenty of indications of different flare ups from her Crohn's disease different experience you know things that she was experiencing after after the 2021 prescription change.

[00:13:19] Speaker 01:
And what's unclear and I think what the district court picked up on was could there, what was the basis for this change and could the symptoms be related to the different dosage or the fact that she could not take it at the time that the symptoms were arising?

[00:13:34] Speaker 05:
Your Honor, what I would say to that is two things.

[00:13:36] Speaker 05:
One, the

[00:13:38] Speaker 01:
The dosage, again, is not an issue on appeal, so there is no... I guess I have a different point of view about that, because in my view, if the deliberate and different standard is determining whether Johnson had knowledge of a significant risk of harm and one of the consequences of his changing the prescription was necessarily changing the dosage for one of the drugs, then it seems to me that that is a relevant consideration as to his knowledge.

[00:14:03] Speaker 01:
Knowledge of the risk.

[00:14:05] Speaker 05:
And there is no medical evidence that suggests that the changing of the dosage to comply with it being within the DOT policy would create a significant risk of harm to her for what has already been determined to be, in its undisputed, a disease where there are naturally flare-ups even upon

[00:14:23] Speaker 05:
or even having these medications, whether they be keep-on-person or DOT.

[00:14:27] Speaker 01:
I mean, I guess that's for trial, right?

[00:14:30] Speaker 01:
Can I circle back?

[00:14:32] Speaker 02:
Sorry, did you want to ask a question?

[00:14:34] Speaker 02:
Just a simple question.

[00:14:35] Speaker 02:
Is there any medical evidence showing that the change from KOP to DOT caused the flare-ups?

[00:14:42] Speaker 05:
There is not, Your Honor.

[00:14:43] Speaker 05:
There is no medical evidence whatsoever.

[00:14:45] Speaker 05:
And in fact, Ms.

[00:14:47] Speaker 05:
Farr did not communicate that to, and we've got to remember, P.A.

[00:14:50] Speaker 05:
Johnson only had a few encounters with her that are at issue with respect to this particular disease and this change in medication.

[00:14:58] Speaker 05:
She did not even communicate that clearly, that that was something that she thought.

[00:15:02] Speaker 05:
But again, even if she thought it, she's a lay person who is not credible to make that kind of determination.

[00:15:07] Speaker 03:
She knows her symptoms, but she knows her symptoms.

[00:15:10] Speaker 03:
In Hunt, we've given credence to the

[00:15:13] Speaker 03:
symptomology that's articulated by the inmates.

[00:15:17] Speaker 03:
So the fact that she is articulating these symptoms raises a material issue of fact.

[00:15:24] Speaker 05:
And respectfully, Your Honor, I disagree, because first, Hunt is very different than this case here.

[00:15:29] Speaker 05:
In Hunt, he is presenting with bleeding, gums, weight loss,

[00:15:36] Speaker 05:
objective, observable things that could be attributed to the fact that he's saying he can't eat this particular food.

[00:15:43] Speaker 05:
That is a stark contrast from what we have here, which is her presenting on December 1st to P. A. Johnson and saying that

[00:15:51] Speaker 05:
As sometimes she did, I'm having diarrhea and nausea, while she has multiple other symptoms.

[00:15:59] Speaker 05:
She's been on this medication for a long time.

[00:16:02] Speaker 05:
She did just start a few months prior the DOT method of administering it, but she still has that medication.

[00:16:09] Speaker 05:
He then responds to that.

[00:16:12] Speaker 05:
It's not like these other cases where he's denying something, ignoring, wait and see what happens.

[00:16:18] Speaker 01:
Well, but his response was, because what struck me was, even after he changed it initially, Dr. Ibrahim prescribed again, keep on person, and then he changed it back.

[00:16:31] Speaker 01:
And my understanding is, those changes never occurred with a conversation with the prescribing doctor, or with her.

[00:16:39] Speaker 01:
It was just automatic.

[00:16:41] Speaker 01:
Based on this supposed policy, there's no written documentation of.

[00:16:46] Speaker 05:
And I believe that it's in SCR volume 3, 258.

[00:16:51] Speaker 05:
And if I could double check that, I will in a second.

[00:16:54] Speaker 05:
Dr. Ibrahim did not prescribe it as keep on person.

[00:16:59] Speaker 05:
That's not what the record shows.

[00:17:01] Speaker 05:
The record shows that on 8-22, Dr. Ibrahim put in the promethazine only, which, by the way, he didn't even do the dicyclamine.

[00:17:12] Speaker 05:
He put in the promethazine as

[00:17:15] Speaker 05:
He'll call AM, PM as needed and down below on that very first page it says may not be KOP.

[00:17:25] Speaker 05:
So I think there's been some confusion about what Dr. Ibrahim put in.

[00:17:29] Speaker 05:
On 822 he put that one prescription in and it says may not be KOP.

[00:17:35] Speaker 05:
May I grab my, I'm just going to grab this.

[00:17:48] Speaker 01:
So can I refer you to, let me see, SER257, where there's handwritten notes that says KOP for Dicyclamine and Promethazine.

[00:18:05] Speaker 01:
And I understood that to be from Dr. Ibrahim.

[00:18:10] Speaker 05:
SER257, Your Honor?

[00:18:13] Speaker 01:
Actually, no, 330, I apologize.

[00:18:24] Speaker 05:
Okay, on SER-330, which honestly appears to be the same document as SER-257, it's just an elongated version that actually shows the Medication Administration record, it says comments may not have KOP.

[00:18:42] Speaker 01:
But do you see the handwriting, KOP, keep on person as, where did that come from?

[00:18:50] Speaker 01:
Is that not from the doctor?

[00:18:52] Speaker 05:
I don't have that on my SCR 330 in Vol.

[00:18:56] Speaker 05:
3.

[00:18:57] Speaker 05:
I apologize, but it's not here on mine.

[00:19:00] Speaker 05:
It's highlighted on mine that it says may not have KOP, which is the same on SCR 257.

[00:19:11] Speaker 05:
When P.A.

[00:19:12] Speaker 05:
Johnson says he looked at it and believed it had been put in KOP and it needed to be DOT on,

[00:19:22] Speaker 05:
8-23-2021, that was for disoclamine.

[00:19:26] Speaker 05:
I'm sorry, I always trip over that word, disoclamine.

[00:19:30] Speaker 05:
And so there is no Dr. Ibrahim ever in the record anywhere saying it had to be this or that it needed to be that, nor is the record from anyone else previous to this change, which P.H.

[00:19:43] Speaker 05:
Johnson says was policy, and he actually wasn't even able to enter it a different way.

[00:19:49] Speaker 05:
There is nothing disputing that.

[00:19:51] Speaker 05:
But more importantly, there is no medical evidence that making that change consistent with the policy that he's not liable for was medically unacceptable.

[00:20:04] Speaker 05:
Having one reference to P.A.

[00:20:06] Speaker 05:
Johnson in December of 2021 that says he was, that she was having some nausea and diarrhea for a condition that comes with nausea and diarrhea on occasion does not then equate to

[00:20:20] Speaker 05:
This harm is caused by DOT versus KOP.

[00:20:25] Speaker 03:
That takes me back to Hunt.

[00:20:27] Speaker 03:
Do you have Hunt before you?

[00:20:29] Speaker 05:
I have the notes from Hunt, Your Honor.

[00:20:30] Speaker 03:
I don't have the entire- I'm looking at the facts of Hunt.

[00:20:33] Speaker 03:
Okay.

[00:20:34] Speaker 03:
865F2199.

[00:20:37] Speaker 03:
And the first paragraph of the facts is talking entirely about Hunt's complaints.

[00:20:44] Speaker 03:
In fact, there was no documentation, medical documentation, until after the court ordered

[00:20:51] Speaker 03:
the grievance be responded to.

[00:20:54] Speaker 03:
And even then, there was a reputation of his complaint.

[00:20:59] Speaker 03:
So we considered his complaints to be an indication of what was medically necessary.

[00:21:08] Speaker 05:
Yes, Your Honor, but there also, my recollection of the facts of that case, which I did look at, I don't have it in front of me, is that regardless of how it came to be, the examination was made and there was objective observation of those issues for him.

[00:21:23] Speaker 05:
But again, more importantly, he's being denied something here that would be a reasonable- Counsel, that's not the facts of Hunt.

[00:21:32] Speaker 03:
I'm sorry.

[00:21:33] Speaker 03:
That's not the facts because the prison maintained

[00:21:37] Speaker 03:
that he has sufficient teeth to eat foods as long as he was given soft foods.

[00:21:44] Speaker 03:
There was no medical documentation to support his complaints.

[00:21:50] Speaker 03:
It was his complaints that formed the basis of the Section 1983 complaint.

[00:21:56] Speaker 05:
I understand, but there was physical evidence of what his condition was.

[00:21:59] Speaker 05:
They simply determined that despite that,

[00:22:02] Speaker 03:
He has enough teeth to eat this food without- You don't think there's physical evidence of Ms.

[00:22:08] Speaker 03:
Farr's ailments?

[00:22:11] Speaker 05:
There is physical evidence that she expressed to this lone defendant in the case that she was having nausea and some vomiting.

[00:22:20] Speaker 03:
Diarrhea.

[00:22:21] Speaker 05:
Diarrhea.

[00:22:22] Speaker 03:
Uncontrollable.

[00:22:24] Speaker 05:
Correct.

[00:22:25] Speaker 05:
On one occasion.

[00:22:26] Speaker 05:
And there is no evidence to tie that in any way, shape or form to the change in the manner in which those medications were delivered to her.

[00:22:36] Speaker 05:
And every single case on which Ms.

[00:22:39] Speaker 05:
Farr relies are cases that talk about denial of treatment, refusing surgery, refusing recommendations from other physicians, specialists,

[00:22:49] Speaker 05:
saying this needs to happen or there's going to be harm.

[00:22:52] Speaker 05:
There is no such medical evidence here.

[00:22:54] Speaker 05:
And I do see that I'm out of time, so unless there's some other question.

[00:22:58] Speaker 01:
I did.

[00:22:59] Speaker 01:
So she has several grievances that talk about how her Crohn's symptoms are flaring up and she needs to keep on person.

[00:23:09] Speaker 01:
That was on 9-9.

[00:23:12] Speaker 01:
on 9-19 that Johnson changed her prescription and since that change she's in constant pain, nausea and discomfort, on 10-13 sick all the time without my medication to keep on person.

[00:23:25] Speaker 01:
Why isn't it a reasonable inference that these grievances, I mean I would somehow get to Johnson

[00:23:34] Speaker 01:
to his attention if she's filing multiple grievances during the course of August and September and thereafter.

[00:23:41] Speaker 01:
Why shouldn't it be a reasonable inference for purposes of us determining if there's a genuine dispute, his knowledge of what was going on with her?

[00:23:50] Speaker 05:
So it's not a reasonable inference in this situation because there is direct, controverting evidence to that fact that is undisputed.

[00:23:58] Speaker 05:
There is evidence from-

[00:24:00] Speaker 05:
that he did not see those grievances?

[00:24:03] Speaker 05:
His declaration that that's not a part of how the system within the prison works.

[00:24:07] Speaker 01:
But just because a declaration says something doesn't make it not a tribal issue though.

[00:24:12] Speaker 05:
It makes it not a tribal issue when there is no evidence that's credible to the contrary to refute it.

[00:24:17] Speaker 05:
the fact that she wrote a grievance that is then responded to and signed by somebody completely different, which is the case with every one of her grievances, there's no reasonable inference to then draw when it doesn't say on the face of those documents that he got them.

[00:24:33] Speaker 03:
He says- How could the grievance be resolved without consulting with P.A.

[00:24:40] Speaker 03:
Johnson?

[00:24:41] Speaker 03:
If the grievance was against him, how could the administration resolve that grievance without

[00:24:48] Speaker 03:
consulting with him?

[00:24:51] Speaker 05:
Well, first, I'd like to point out that whether or not the administration resolved the grievance in a manner in which it is acceptable or not acceptable, again, is not an issue because there is no claim against Centurion in this case.

[00:25:04] Speaker 03:
No, no, that's not the issue, whether or not, but as a practical matter.

[00:25:09] Speaker 03:
As a practical matter?

[00:25:10] Speaker 03:
As an administrative matter.

[00:25:12] Speaker 03:
How could a grievance be resolved that's made against an individual if that individual

[00:25:17] Speaker 03:
is never interviewed or consulted.

[00:25:20] Speaker 05:
You have to go by what the record shows.

[00:25:22] Speaker 05:
There is no record evidence or testimony that he was consulted by these people responding, whose job it is to respond to the grievances that they consulted with P.A.

[00:25:33] Speaker 05:
Johnson in particular.

[00:25:34] Speaker 05:
There is evidence that they reviewed and responded to it based on what they looked at, but there's no direct evidence that he was consulted.

[00:25:43] Speaker 05:
But in any event, even if he had been consulted on one occasion that she's claiming that her symptoms are being caused by this KOP or DOT administration, again, there's no medical evidence to support that.

[00:25:59] Speaker 05:
That is her belief.

[00:26:01] Speaker 05:
That is solely her disagreement with

[00:26:04] Speaker 05:
A policy again that P.A.

[00:26:05] Speaker 05:
Johnson did not implement.

[00:26:08] Speaker 03:
But are you saying it's undisputed that she never apprised P.A.

[00:26:14] Speaker 03:
Johnson directly of her issues?

[00:26:17] Speaker 05:
No.

[00:26:18] Speaker 05:
What I'm saying is the fact that she apprised him in December 1, that she's having some symptoms of Crohn's.

[00:26:24] Speaker 05:
She asked for a modium.

[00:26:26] Speaker 05:
A modium is an over-the-counter, which she can get.

[00:26:29] Speaker 05:
He does respond and also provide her another Medrawl pack, which that particular one was allowed to keep on person.

[00:26:36] Speaker 05:
It's a pack and it's given to her.

[00:26:38] Speaker 05:
He responded to that.

[00:26:39] Speaker 05:
He didn't ignore it.

[00:26:40] Speaker 05:
This is simply not a case like many of the other cases that are relied on here by Ms.

[00:26:46] Speaker 05:
Farr where he's not responding, wait and see, not treating, denying.

[00:26:51] Speaker 05:
It is simply him following a policy he believed he had to follow.

[00:26:55] Speaker 05:
not be, and in his declaration, which was given in response to the, in conjunction with the motion for summary judgment, which is not contested, he says that he agreed that having it administered at the beginning of the day and the end of the day, versus giving her the dosage to have in her hand, which by the way, the dose is just so limited.

[00:27:16] Speaker 05:
She's not given an inordinate amount to just hold in her cell and take whenever she wants.

[00:27:20] Speaker 05:
She's still only given a small amount.

[00:27:24] Speaker 05:
I hope that answers the question about that.

[00:27:25] Speaker 05:
She did communicate the symptom to her and he did not ignore it.

[00:27:30] Speaker 05:
He responded appropriately for these reasons that we asked.

[00:27:33] Speaker 03:
Are there any other questions?

[00:27:34] Speaker 03:
Sorry.

[00:27:34] Speaker 03:
All right.

[00:27:35] Speaker 03:
Thank you, counsel.

[00:27:36] Speaker 03:
Thank you.

[00:27:55] Speaker 00:
Good morning, Your Honors.

[00:27:56] Speaker 00:
May it please the Court.

[00:27:57] Speaker 00:
My name is Aaron Pinkett, and I'm here on behalf of the Plaintiff Appellant, Ms.

[00:28:00] Speaker 00:
Robin Farr.

[00:28:01] Speaker 00:
I'd like to quickly address something that was brought up by opposing counsel, and that was questioned by Your Honors.

[00:28:07] Speaker 00:
In terms of whether or not Ms.

[00:28:09] Speaker 00:
Farr directly communicated this issue to PA Johnson, there is direct evidence in the record that does support that.

[00:28:17] Speaker 00:
I would point you to the September 19th grievance at 2SER 69.

[00:28:22] Speaker 00:
It specifically says, it is apparent that PA Johnson not only changed my prescription and removed KOP status, but it's clear he did it for mere convenience rather than to take into consideration my physical well-being.

[00:28:35] Speaker 02:
But that doesn't say that she communicated that to PA Johnson.

[00:28:39] Speaker 02:
That just says she blames him for it.

[00:28:41] Speaker 00:
Yes, Your Honor.

[00:28:42] Speaker 00:
But lower down on it, it says, if yes, give staff members.

[00:28:47] Speaker 00:
It says PA Johns, even though it clearly says PA Johnson up top, which a reasonable jury could conclude that she is apprising PA Johnson of this change during this encounter.

[00:29:01] Speaker 02:
But there is another PA Johns, correct?

[00:29:04] Speaker 00:
There is not another P.A.

[00:29:06] Speaker 00:
Johns.

[00:29:06] Speaker 00:
There is a Gemini Johns who is a nurse practitioner.

[00:29:10] Speaker 00:
However, Ms.

[00:29:11] Speaker 00:
Farr is entitled to all reasonable inferences.

[00:29:14] Speaker 00:
And the fact that she says P.A.

[00:29:16] Speaker 00:
Johnson up at top and then later says P.A.

[00:29:19] Speaker 00:
Johns, a reasonable inference would be that she is talking about the same person in both instances.

[00:29:25] Speaker 00:
And when it comes to causation, first off, that is a jury question.

[00:29:29] Speaker 02:
But also, in addition, it says... But if it is a jury question, but what's the evidence to show the causation?

[00:29:38] Speaker 00:
So specifically, we can refer to Ms.

[00:29:40] Speaker 00:
Farr's notes.

[00:29:41] Speaker 02:
Just Ms.

[00:29:41] Speaker 02:
Farr's testimony.

[00:29:43] Speaker 00:
Yes, she says, since this change, I am in constant pain, nausea, and discomfort due to not having my medication on hand and as needed for these symptoms.

[00:29:53] Speaker 00:
So there is direct evidence that she is directly attributing this to PA Johnson's change in the administration.

[00:30:02] Speaker 00:
I see that I am at time.

[00:30:03] Speaker 00:
for those reasons.

[00:30:06] Speaker 01:
Mr. Pinker, let me ask you this.

[00:30:08] Speaker 01:
The Farmer versus Brennan Deliberate and Difference Standard talks about knowledge of a substantial risk of harm.

[00:30:15] Speaker 01:
And so here's my question.

[00:30:17] Speaker 01:
Is it actually the case that plaintiff had to come up with knowledge that Johnson knew that the symptoms were happening or that he was harming her?

[00:30:28] Speaker 01:
Or is it enough to have knowledge that changing the dosage, changing the prescription could cause a substantial risk of harm to a person?

[00:30:38] Speaker 01:
enough to get it to trial?

[00:30:40] Speaker 00:
So it would be the latter.

[00:30:42] Speaker 00:
And specifically in Farmer v. Brennan, the language is, a provider is deliberately indifferent where they know of and disregard an excessive risk to inmate health and safety.

[00:30:52] Speaker 00:
So the fact that she is communicating that there is this harm that is happening to her with her worsening condition would be enough to meet the standard that was illustrated in Farmer v. Brennan.

[00:31:05] Speaker 03:
Any questions?

[00:31:06] Speaker 03:
All right, it appears there are no further questions.

[00:31:09] Speaker 03:
We thank all counsel for your helpful arguments.

[00:31:11] Speaker 03:
And on behalf of the circuit, we thank the Northwestern University School of Law Federal Appellate Practice Clinic for your able representation.

[00:31:20] Speaker 03:
The case just argued is submitted for decision by the court.