[00:00:01] Speaker 03:
Next case before us is 24-1134, Webster versus CHP, Correctional Health Partners.

[00:00:17] Speaker 01:
May it please the court.

[00:00:18] Speaker 01:
Good morning.

[00:00:19] Speaker 01:
My name is Brent Owen, and I'm here on behalf of Appellant Ronald L. Webster.

[00:00:24] Speaker 01:
We are appealing an order granting summary judgment against Mr. Webster on his 1983 claims.

[00:00:30] Speaker 01:
seek reversal of the summary judgment order for two reasons.

[00:00:34] Speaker 01:
First, the district court erred in the legal standard that it applied by requiring a subjective proof of Colorado or of Correctional Health Partners' subjective intent to deprive Mr. Webb of his constitutional rights.

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And second, regardless of whether the court agrees with me on the legal standard issue, there are factual issues that precluded the grant of summary judgment and the district court improperly weighed

[00:00:59] Speaker 01:
the evidence and essentially decided against my client where there are facts in the record that would have supported a trial to a jury.

[00:01:08] Speaker 01:
I'd like to discuss first the legal standard that applies to Mr. Webster's claim.

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Because this is a claim against an entity, Correctional Health Partners, there are three elements and we are required to prove that there was a disputed, genuine disputed issue of material facts on those three elements.

[00:01:25] Speaker 01:
First, the existence of Colorado Health Partners official policies are custom.

[00:01:29] Speaker 01:
And just to detour a little bit on this point, the briefing has, there's been a significant amount of focus on the other side that this is not the official policy.

[00:01:39] Speaker 01:
And what we're talking about here in concrete terms is Mr. Webster suffered a knee injury in 2012, suffered a hip injury, as a result, at least in part of that knee injury, ultimately required a hip transplant, and he didn't get that hip transplant for a very long time.

[00:01:55] Speaker 01:
and not being able to have the hip transplant caused him serious pain, essentially meant that he couldn't move, he couldn't take care of himself.

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He's a 60 year old man and he's relegated to essentially not being able to function even in the prison setting.

[00:02:10] Speaker 01:
So the policy that we challenge isn't the official written policy because of course you could write a policy that meets the constitutional requirements that is not what is required by the Eighth Amendment.

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What we are challenging is correctional health

[00:02:25] Speaker 01:
partner's consistent denial of MRIs and then delay in authorizing surgery.

[00:02:32] Speaker 01:
Both of those.

[00:02:32] Speaker 02:
But don't you have to show that an employee of CHP knew and disregarded the risk here?

[00:02:40] Speaker 02:
I mean, that was the basis of the district court's holding, as I understood it.

[00:02:44] Speaker 02:
Why is that wrong?

[00:02:45] Speaker 01:
That's incorrect because this is an entity claim.

[00:02:49] Speaker 01:
So we aren't required

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in an entity claim to show that a specific individual.

[00:02:55] Speaker 03:
And I think the exact language- Are you saying all monel claims are exempt from showing an individual violation?

[00:03:05] Speaker 01:
No, I'm not saying that.

[00:03:06] Speaker 01:
I'm saying that a monel claim where you allege that there is an entity that acted.

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And I think the quote in Krausen, I believe, is

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you can't achieve by two hands, you can't achieve with two what you could have done with 20.

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So in other words.

[00:03:20] Speaker 02:
So if you're relying on a systemic failure, that's what you're saying, right?

[00:03:24] Speaker 02:
You don't need to point to one employee because it's a systemic problem.

[00:03:28] Speaker 02:
Don't you need to plead that?

[00:03:31] Speaker 01:
Well, at this stage, this is a summary judgment case, issue.

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So we're here not on a motion to dismiss.

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The pleading is a pro se pleading.

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It was Mr. Webster in prison trying to draft a complaint.

[00:03:46] Speaker 01:
He was ordered by the district court to amend the complaint to address the theory that you described.

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He's not an attorney, I don't know, we couldn't have known that you needed to do the systemic failure.

[00:03:57] Speaker 01:
So two points, Your Honor.

[00:03:58] Speaker 01:
First, it doesn't matter because we're here not on the pleadings, we're here on the factual record that we submitted to the district court.

[00:04:05] Speaker 01:
And the factual record that we submitted to the district court had evidence that there is delay, systemic delay, in ordering those MRIs which cause

[00:04:13] Speaker 01:
in this instance, caused Mr. Moore to suffer debilitating knee pain.

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And even worse, I think, in the factual record is the five months where he wasn't able to get hip surgery and he could barely stand or walk.

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The second point is the pleadings did reference it.

[00:04:28] Speaker 01:
It wasn't particularly well articulated, but to hold that against him at this stage is really unfair when we have factual records.

[00:04:34] Speaker 01:
Those issues merge, you try the case on the merits of the facts, not on what's in the plea.

[00:04:38] Speaker 02:
So I understand that we're not at the pleading stage, but don't, is it your position that this case was litigated through summary judgment as a systemic case?

[00:04:50] Speaker 01:
Yes, that's how, we briefed it to make that point.

[00:04:53] Speaker 01:
We've submitted expert, doctor expert testimony describing the combination of factors that led to Mr. Webster's pain, so yes.

[00:05:05] Speaker 03:
In any event, he's gotta have suffered a constitutional violation, right?

[00:05:11] Speaker 01:
Certainly.

[00:05:12] Speaker 01:
Certainly, he has suffered a constitutional violation, but I don't know that the injury is even disputed at this point.

[00:05:19] Speaker 01:
I guess there's some debate that maybe now he's healed, but I think the case law is pretty clear that if you suffer for five months and you are not able to stand or walk or take care of yourself and you're in debilitating pain.

[00:05:29] Speaker 03:
You're looking at delay, right?

[00:05:31] Speaker 03:
Correct, yes, you're right.

[00:05:32] Speaker 03:
Let's go to your MRI claim,

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I'm somewhat confused by your MRI claim.

[00:05:38] Speaker 03:
Apparently he needed an MRI to identify soft tissue injury.

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He did have an x-ray.

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The x-ray indicated bone-on-bone arthritic pain.

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He eventually got the hip replacement and it resolved the issue, which suggests that in fact it was bone-on-bone

[00:06:05] Speaker 03:
pain that he was experiencing, what difference would an MRI make?

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I mean, you have to show that somehow the lack of an MRI had some consequences here, and I don't see anywhere in the record talking about that.

[00:06:23] Speaker 03:
I don't see a single medical testimony about what difference an MRI would have made.

[00:06:29] Speaker 01:
Well, I'd point, Your Honor, and I believe it's at volume two, 134,

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to the expert testimony from Dr. Lindquist that we submitted that discussed how the delay here is in part because... I'm talking about your claim about they don't allow MRIs.

[00:06:45] Speaker 03:
I'm not talking about the delay.

[00:06:48] Speaker 01:
I misunderstood.

[00:06:49] Speaker 01:
I thought your Honor was trying to understand how that harms him.

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So I'm a little confused by your question.

[00:06:56] Speaker 03:
Well, you're saying they had a custom or policy to deny MRIs, right?

[00:07:04] Speaker 01:
Yes.

[00:07:04] Speaker 03:
We have a plaintiff here who suffered from a bad hip based on bone-on-bone contact, which is painful, and he was approved eventually for the hip replacement, and the hip replacement resolved it.

[00:07:28] Speaker 03:
The bone-on-bone friction was shown through the x-ray

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He was diagnosed based on the x-ray, he was treated based on the x-ray, and his condition was resolved based on the x-ray and the hip replacement.

[00:07:43] Speaker 03:
What difference would an MRI do to identify soft tissue injury if what was treated and resolved, his pain, was a hip replacement?

[00:07:56] Speaker 03:
I'm a little confused by that.

[00:07:58] Speaker 01:
Respectfully, Your Honor, I think one middle step there actually misses where there was injury suffered based on the MRI.

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So generally the chronology is correct, but the treatment that he was instructed to give when he had just had the x-ray was to do, was Tylenol and movement and riding a stationary bike, which exacerbated the pain.

[00:08:19] Speaker 01:
They didn't have the specific detailed information they needed to do the fix that they did eventually reach.

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And my understanding from both the expert testimony that we submitted

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and the medical records from at least some of the folks that correctional health partners relied on, was that those treatments weren't correct.

[00:08:37] Speaker 03:
So you take a person who has... Unless malpractice, that's not deliberate indifference.

[00:08:42] Speaker 01:
Well, it's deliberate indifference if the person in charge of approving the thing that you need to have doesn't approve it.

[00:08:48] Speaker 01:
So you can't know that that's the issue until the MRI is approved.

[00:08:54] Speaker 03:
Okay.

[00:08:54] Speaker 03:
On turning to your delay claim, what is your best evidence that this was an official custom or policy of CHP?

[00:09:08] Speaker 01:
I point your honor to the, I'll find the site in the record here.

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I mean, in narrative terms, in the specific record sites,

[00:09:23] Speaker 01:
Volume 2, 55, 56, 58, 127, 129, and 132.

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And then I think in the summary judgment briefing, so digging into the actual pleadings, paragraph 19, volume 2, 173, you have a record of the error in the submission in October, and it's not corrected until January.

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with correctional health partners takes the position that they approved it and fixed it the same day.

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The district court, I believe, relied on that in finding that our delay claim should be dismissed for summary judgment.

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I think that's a disputed factual issue.

[00:09:58] Speaker 01:
That's not a clear cut.

[00:10:01] Speaker 01:
The district court judge is essentially weighing that evidence, and that's improper at this stage.

[00:10:07] Speaker 03:
Well, in order to show, I mean, you don't have a written policy.

[00:10:12] Speaker 03:
on delay, right?

[00:10:14] Speaker 03:
Correct.

[00:10:14] Speaker 03:
Okay, so we're looking at an informal customer policy, and as I understand the law, you can show it by a pattern of tortious conduct, or you can show that he's actual constructive notice by the municipality.

[00:10:42] Speaker 03:
The only pattern that I see is Mr. Webster himself.

[00:10:47] Speaker 01:
Well, you have Mr. Webster's testimony that other providers, that the providers who are talking to him, who are treating him, are telling him these will not be approved because they don't ever approve these claims.

[00:11:00] Speaker 03:
Does it matter that that's hearsay?

[00:11:02] Speaker 01:
No, that was forfeited below.

[00:11:06] Speaker 03:
You think it's forfeited below for us to look at whether the summary judgment record

[00:11:11] Speaker 03:
is sufficient to create an issue of fact?

[00:11:14] Speaker 01:
I think that even if you are inclined to consider it as... What if I don't think it was way below and that I can consider it?

[00:11:22] Speaker 03:
What difference does it make?

[00:11:24] Speaker 01:
What difference does it make as a factual matter?

[00:11:26] Speaker 03:
Yeah.

[00:11:27] Speaker 01:
I think it demonstrates that there's a pattern outside and beyond Mr. Webster.

[00:11:31] Speaker 01:
We also cited to other cases where you have this pattern.

[00:11:34] Speaker 03:
It's a bit of a catch-20... Well, you cited to four cases, the other lawsuits, but interestingly,

[00:11:40] Speaker 03:
none of them were resolved in favor of the plaintiff.

[00:11:46] Speaker 01:
Well, fair enough, but that doesn't speak to whether or not there is a pattern.

[00:11:49] Speaker 03:
Well, it's hard to imagine that these unsuccessful claims against CHP would have put them on notice.

[00:11:59] Speaker 01:
Well, the question is whether or not, objectively, there was delay in obtaining the MRI.

[00:12:07] Speaker 01:
And the inquiry is based on whether or not

[00:12:11] Speaker 01:
the MRIs were not being given.

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And there's an extensive paper record.

[00:12:16] Speaker 01:
I mean, this case starts with a knee injury that occurs in 2012.

[00:12:19] Speaker 01:
He doesn't get the hip surgery until January of 2019.

[00:12:21] Speaker 01:
I would like to reserve the remainder of the time if there's no more questions.

[00:12:29] Speaker 03:
Thank you.

[00:12:29] Speaker 01:
Thank you.

[00:12:46] Speaker 00:
May it please the court, Andrew Rangel on behalf of the defendant, Appleley Correctional Health Partners.

[00:12:52] Speaker 00:
Let me start factually, Your Honors, because I think that would be helpful for some of the questions that I heard from my colleague.

[00:12:59] Speaker 00:
There are two issues here, one is the hip, one is the knee.

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The MRIs relate to the knee, not the hip.

[00:13:06] Speaker 00:
The hip is solely the delay between the context of

[00:13:15] Speaker 00:
when the provider incorrectly submitted the surgery for the hip as a knee surgery, when that was corrected, and the delay that ultimately resulted in the surgery.

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The longest period of delay that you have that exists is two months.

[00:13:34] Speaker 00:
Let's go back to what the district court did related to that delay, and it goes to Judge Rosman's question and also Judge McHugh's question.

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There has to be an underlying constitutional violation.

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regardless of the theory that we're proceeding under.

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And I don't think this was appropriately litigated as a systemic theory under Croson.

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But even if this court assumes that it was, you still need to meet the Eighth Amendment Estelle standard.

[00:14:01] Speaker 03:
Do you mean for an individual or can the entity have been deliberately indifferent in adopting a policy that

[00:14:12] Speaker 03:
was known or could easily predict that it would result in constitutional violation.

[00:14:19] Speaker 00:
So let me parse that a little bit, Your Honor, because as the court knows, deliberate indifference in this context is used two different ways.

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And so the first way of deliberate indifference is in the Eighth Amendment sense, the substantive requirement of the Eighth Amendment.

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Croson in the STEM systemic cases suggest you don't have to identify the individual person

[00:14:39] Speaker 00:
who violated your constitutional rights.

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You can identify collective people from an entity who violated your constitutional rights.

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But you're still having to establish that those people collectively have the intent that meets the requirement under the Eighth Amendment.

[00:14:57] Speaker 00:
You don't get to pass that up and just go right to the deliberate indifference in the sense of a Menell Claim, Your Honor.

[00:15:05] Speaker 00:
That's the

[00:15:06] Speaker 00:
the flaw that exists in the theory here.

[00:15:09] Speaker 00:
You still need an underlying constitutional violation.

[00:15:12] Speaker 00:
The district court correctly determined that that doesn't exist.

[00:15:16] Speaker 00:
Back to Judge McHugh's question related to custom policy and practice in terms of the delay, I think that's exactly right.

[00:15:24] Speaker 00:
First of all, I think with the delay, at best what you have here is negligence.

[00:15:29] Speaker 00:
And so you can't meet the substantive standard under the Eighth Amendment as a negligent claim.

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As the court is well aware, 1983 claims require something more than negligence as a general matter.

[00:15:41] Speaker 00:
But an Eighth Amendment Deliberate and Different claim requires actual knowledge of the issue and the determination of drawing the inference that there's a substantial risk of harm.

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That's in all of the cases related to the Eighth Amendment Subjective Standard.

[00:15:59] Speaker 00:
The court below got that correct.

[00:16:02] Speaker 00:
It also can't be a policy, your honor, because all you have with respect to the delay based on the misidentification of this as a knee surgery initially and then a hip surgery later is the one instance involving Mr. Webster.

[00:16:20] Speaker 00:
That is insufficient to create notice and deliberate indifference on a custom theory

[00:16:27] Speaker 00:
And there's no evidence that anybody who might be a final policymaker for CHP was involved in that decision or had awareness of it, which would be the other way that you could get around it.

[00:16:37] Speaker 00:
Going to the MRI issues related to the knee, it's important to evaluate this in my judgment in the context of what the administrative review is.

[00:16:53] Speaker 00:
This is an initial decision by one medical director to deny these MRIs and make the determination that they aren't medically necessary.

[00:17:03] Speaker 00:
That decision is subject to two levels of appeal from a review by a different medical director with additional information provided by the healthcare provider and also the ultimate review by the chief medical officer of the Department of Corrections.

[00:17:21] Speaker 02:
So who has the final authority to make

[00:17:23] Speaker 02:
the treatment decision?

[00:17:24] Speaker 02:
Is it your client?

[00:17:26] Speaker 00:
No, it's the CDOC chief medical officer.

[00:17:30] Speaker 00:
So ultimately, if a provider had determined, the provider gets notice of the denial.

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The provider has the ability to say, just like any insurance company, your provider can appeal denial of an insurance medical necessity denial.

[00:17:48] Speaker 00:
It's the same kind of administrative process here.

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It goes first to another medical director at CHP.

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Then after that, it's the ultimate decision of the chief medical officer of the Department of Corrections.

[00:18:04] Speaker 00:
So from a causation perspective, which is an embedded element under 1983, you can't have causation for the initial decision.

[00:18:14] Speaker 00:
It's not a final decision.

[00:18:15] Speaker 00:
It's an interim decision that's never

[00:18:19] Speaker 00:
done anything with.

[00:18:21] Speaker 00:
Here you have the intervening decision of the healthcare providers not to appeal.

[00:18:30] Speaker 00:
That's what ultimately causes an injury related to the MRI denial if there is an injury.

[00:18:37] Speaker 02:
Well, a delay in authorization from CHP would contribute, right, wouldn't it?

[00:18:42] Speaker 00:
It would contribute, but the mechanism of the administrative process, Your Honor, means it can't be causal.

[00:18:49] Speaker 00:
Because the steps are the, if you were going to, I suppose you could have an argument, your honor, if ultimately it was approved and you had the argument that the initial denial was so beyond the pale that there was no legitimate basis for the initial denial, maybe you could have a deliberate indifference in that context.

[00:19:14] Speaker 00:
But what you run into then, your honor, is the line of cases from this court that says,

[00:19:20] Speaker 00:
differences in medical opinion don't create an 8th Amendment claim.

[00:19:24] Speaker 00:
That's the other context that exists here.

[00:19:28] Speaker 00:
Ultimately, this is sort of a quasi-medical review.

[00:19:32] Speaker 00:
You get the medical information, you provide it to CHP, they make a determination related to that.

[00:19:38] Speaker 03:
What about the testimony from Mr. Webster that the reason the CDLC providers

[00:19:46] Speaker 03:
didn't appeal was because they felt it was futile because they were convinced that it was never going to be approved.

[00:19:55] Speaker 00:
So there are a couple problems with that.

[00:19:56] Speaker 00:
One is the court, as you identified, it's potential hearsay.

[00:20:00] Speaker 00:
Setting hearsay aside because I don't think that that's dispositive of this issue or there's other ways to make it dispositive.

[00:20:11] Speaker 00:
The provider manual is part of the record.

[00:20:15] Speaker 00:
It's part of the summary judgment record.

[00:20:18] Speaker 00:
It describes the process by which there's an appeal.

[00:20:21] Speaker 00:
And the providers have access to that and they are supposed to use that.

[00:20:28] Speaker 00:
The problem with Mr. Webster's testimony is it doesn't identify a particular provider.

[00:20:36] Speaker 00:
It doesn't identify a particular denial.

[00:20:39] Speaker 00:
And most importantly, Your Honor, it doesn't provide any information that anybody from CHP knew that that was the attitude of the providers.

[00:20:47] Speaker 00:
And ultimately, it's important to remember, this is a system set up by CDOC.

[00:20:54] Speaker 03:
What he's trying to use it for is to establish a custom and policy, an informal custom and policy.

[00:21:02] Speaker 03:
So if the providers, not CHP,

[00:21:08] Speaker 03:
recognized that CHP in fact had such a policy and it's just going to be denied.

[00:21:14] Speaker 03:
Wouldn't that be some relevant evidence of whether a policy existed?

[00:21:19] Speaker 00:
Perhaps, Your Honor, but as I mycologically with Judge Rossman, you go to the next step of causation.

[00:21:25] Speaker 00:
So under the analysis under Monell in both the municipal liability and the entity liability,

[00:21:34] Speaker 00:
context, you need to have a moving force behind the policy or custom and the constitutional violation.

[00:21:43] Speaker 00:
Because of the way the system is set up, it isn't a moving force.

[00:21:47] Speaker 00:
It's the subjective opinion of a provider who makes a determination not to appeal.

[00:21:55] Speaker 00:
But how is that having evidentiary significance to create causation

[00:22:01] Speaker 00:
for an entity that has no knowledge and has set up a system that's directly contrary to that information.

[00:22:09] Speaker 00:
It doesn't fit and the other sort of overlay that I would add with that context is there would need to be in the subjective intent requirement of the Eighth Amendment sufficient knowledge by somebody at CHP

[00:22:30] Speaker 00:
that this was something that was happening, and then them failing to appreciate that that could create a serious risk for somebody like Mr. Webster, and then not doing anything about it.

[00:22:44] Speaker 00:
But the evidence is directly to the contrary.

[00:22:47] Speaker 00:
They publish the provider manual, they provide the provider manual to the providers, it sets up a pretty easy system for purposes of this kind of denial.

[00:22:58] Speaker 00:
I don't know if this fact is in the record, but I know it from my work for CHP for a long time.

[00:23:05] Speaker 00:
The denial itself is going to inform the provider that they have the ability to appeal.

[00:23:12] Speaker 00:
And so maybe they're doing that.

[00:23:16] Speaker 00:
Sometimes providers don't appeal because they agree with the decision.

[00:23:22] Speaker 00:
And there's no evidence in the record at all from any of these providers.

[00:23:27] Speaker 00:
related to what their thinking was and what was going on there.

[00:23:34] Speaker 03:
If you need an individual who had objective and subjective knowledge and was deliberately indifferent, what's the purpose of a systemic claim?

[00:23:48] Speaker 03:
Why not just go after the individual?

[00:23:52] Speaker 00:
Well, I don't know, Your Honor, and there are some pleading issues in this case, as the court identified.

[00:24:01] Speaker 00:
I think it's important to understand, I don't think systemic was pled, but... But assuming it's before us, because we've been discussing it.

[00:24:09] Speaker 03:
In Crosson, our first case was Garcia, and Garson and Crowson

[00:24:14] Speaker 03:
There's no discussion in either of their cases about some individual who had the requisite subjective and objective knowledge, is there?

[00:24:24] Speaker 00:
But those are not Eighth Amendment claims, Your Honor.

[00:24:27] Speaker 00:
Those are different contexts, and as the court knows, you have to evaluate whether there's a constitutional violation in those different contexts.

[00:24:36] Speaker 00:
My memory is, and it's been

[00:24:39] Speaker 00:
I don't know this for a fact, but my memory is Croson is a Fourth Amendment case.

[00:24:44] Speaker 00:
And so if you're dealing with the Fourth Amendment objective reasonable standard, you're looking at the totality of the circumstances differently than you would be in an Eighth Amendment case.

[00:24:58] Speaker 00:
Well, if Croson stands for the proposition, nothing in Croson states that you don't have to have an underlying constitutional violation.

[00:25:07] Speaker 00:
you still have to have an underlying constitutional violation.

[00:25:10] Speaker 00:
That's black letter law from Menell.

[00:25:14] Speaker 00:
There is no sort of systemic exception to, you may be able to create the underlying constitutional violation based on the systemic issue, but you still have to have an underlying constitutional

[00:25:29] Speaker 02:
Well, I'm trying to understand, you know, the district court did not cite any of the legal principles that attend to a systemic violation, right?

[00:25:39] Speaker 02:
I mean, so I'm trying to discern, based on just what the district court has told us in its order, how it understood how we should be thinking about the constitutional claim.

[00:25:49] Speaker 02:
And so is there a

[00:25:51] Speaker 02:
a reason why, that you can think of, why the District is very able, District Court would not have discussed Croson?

[00:25:59] Speaker 02:
Is it because it doesn't apply here?

[00:26:01] Speaker 00:
I don't think it applies and I don't think that there was a systemic claim pled.

[00:26:06] Speaker 00:
The way that I always understood this at the District Court was this was a standard Eighth Amendment claim.

[00:26:12] Speaker 00:
against correctional health partners.

[00:26:14] Speaker 02:
Our law does say that you have to allege a systemic claim.

[00:26:18] Speaker 02:
And here we have a pro se individual who is not familiar with the intricacies of our jurisprudence.

[00:26:26] Speaker 02:
And by the time we get to summary judgment, he's counseled.

[00:26:29] Speaker 02:
So how should we be thinking about that?

[00:26:32] Speaker 00:
So factually, procedurally, Your Honor, that's not entirely correct.

[00:26:36] Speaker 00:
OK.

[00:26:36] Speaker 00:
So it is correct that the

[00:26:40] Speaker 00:
The plaintiff pro se filed a complaint, then in screening, then United States Magistrate Judge Gordon Gallagher screened it and directed him to file an amended complaint.

[00:26:51] Speaker 00:
Then, counsel enters their appearance.

[00:26:54] Speaker 00:
We file a motion to dismiss.

[00:26:56] Speaker 00:
Counsel responds to the motion to dismiss.

[00:26:59] Speaker 00:
So at that point in time, counsel is on the case.

[00:27:02] Speaker 00:
If counsel believes that there's a systemic

[00:27:06] Speaker 00:
claim here, counsel has every ability to plead the systemic claim.

[00:27:11] Speaker 00:
The motion to dismiss was denied procedurally because there was no stay, discovery happened, and we filed a summary judgment while the motion to dismiss was pending, and so ultimately the court ruled on the summary judgment, not the motion to dismiss.

[00:27:27] Speaker 00:
But it isn't correct to think that it was only pro se at the time that that battle was joined, Your Honor.

[00:27:36] Speaker 00:
I see my time's expired, thank you.

[00:27:48] Speaker 01:
Thank you.

[00:27:48] Speaker 01:
Just to address a handful of issues that came up.

[00:27:52] Speaker 01:
I think there's been a lot of focus on Mr. Webster's testimony, whether or not it's hearsay.

[00:27:58] Speaker 01:
I would like to flag that there are other instances in the record of providers noting, providing evidence that

[00:28:05] Speaker 01:
Correctional Health Partners is not inclined to grant the MRIs, and so that informed our argument here, specifically at volume two, 164 and 150, that's Mr. Griezman, and then Ms.

[00:28:19] Speaker 01:
Hib's testimony at 179.

[00:28:21] Speaker 01:
On the Hib replacement, I'm not entirely sure where the two months come from.

[00:28:28] Speaker 01:
My understanding of the timeline is that September 25th, 2018, after essentially

[00:28:34] Speaker 01:
arguing with correctional health partners to try and get some relief and the providers, fair enough.

[00:28:41] Speaker 01:
He was sent to get a knee surgery.

[00:28:43] Speaker 01:
That was incorrect.

[00:28:44] Speaker 01:
That was corrected October 25th, 2018 by the provider.

[00:28:47] Speaker 01:
And that's at 129 and 132.

[00:28:49] Speaker 01:
The surgery doesn't happen until January 7th, 2019.

[00:28:54] Speaker 01:
So it's a bit longer than was said.

[00:28:57] Speaker 01:
I just want to emphasize that there's delay here.

[00:29:00] Speaker 01:
and under the law that time you're suffering and the fact that there is a fact dispute about whether or not it was authorized is enough to survive summary judgment.

[00:29:09] Speaker 01:
And then respectfully, Garcia and Krausen are both Eighth Amendment claims.

[00:29:15] Speaker 01:
My understanding is that they're both Eighth Amendment claims.

[00:29:18] Speaker 01:
Garcia's a 1985 claim.

[00:29:20] Speaker 01:
You have a drunk inmate who's taken in and the official policy, which clearly complies with the Constitution, is to make sure that

[00:29:28] Speaker 01:
this person is taken care of.

[00:29:29] Speaker 01:
The actual in effect policy is that they don't do anything and the individual dies and there's liability.

[00:29:35] Speaker 01:
It's the point of having liability for systems because if you always have to point to a certain person, it actually rewards no one knowing what's going on.

[00:29:44] Speaker 01:
And Krausen is somewhat similar to a more recent case in 2020.

[00:29:48] Speaker 01:
I can't pronounce the medical term that the person went through, but he went into shock.

[00:29:53] Speaker 01:
They thought it was drug and alcohol withdrawal.

[00:29:56] Speaker 01:
In fact, he was having suffering.

[00:30:00] Speaker 01:
And again, you have systems that don't pay any attention to it.

[00:30:04] Speaker 01:
So if you can come in and say, well, constitutional rights were violated because no one was paying attention, then that's quite a loophole for the Eighth Amendment.

[00:30:11] Speaker 01:
Thank you for your time.

[00:30:12] Speaker 03:
Thank you.

[00:30:14] Speaker 03:
We will take this matter under advisement.

[00:30:17] Speaker 03:
We appreciate your argument and your briefing.