ESTELLE v. GAMBLE

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Argument of Bert W. Pluymen

Chief Justice Warren E. Burger: We will hear arguments first this morning in no. 75-929, Estelle against Gamble.

Mr. Pluymen, you may proceed whenever you are ready.

Mr. Bert W. Pluymen: Mr. Chief Justice, may it please Court.

This case arose when the respondent J. W. Gamble filed an action under 42 U. S. C. Section 1983 to the United States District Court for the Southern District of Texas, alleging an adequate medical treatment for a back injury, which he has sustained in filing suit against the Director of the Texas Department of Corrections, the warden of his unit, the Medical Director who is also the Chief Medical Officer of the prison hospitals.

District Court without requiring the State to file a response, without asking for any response summarily dismissed the claim rather for failure to state a claim upon which relief could be granted.

The United States Court of Appeals for the Fifth Circuit subsequently reversed the remand of the case with instructions to reinstate the compliant, appoint counsel, and permit amendment.

Your Honor, the crux of this case is whether the Federal District Courts will in the future and the Fifth Circuit sit as medical review boards to review the diagnosis and treatment by doctors in correctional institutions or whether that Federal Courts and the Fifth Circuit will operate within the confines as the limitations imposed by the Constitution and by the jurisdictional part of Section 1983 which is 28 U. S. C. 1343.

In looking at a complaint it is established law by this Court that a complaint should not be dismissed summarily unless it is beyond doubt that plaintiff can prove no facts in support of his claim, which would entitle him to relief.

Well, in the area of prisoner medical care there are only two places in the Constitution where a claim can possibly be stated, one is underneath the Eighth Amendment Cruel and Unusual Punishment Clause, the other is under the Fourteenth Amendment, Due Process Clause; a section relating to life.

Justice William H. Rehnquist: Your Brief I believe indicates that because of changes in creation of administrative procedures as kind of a problem will tend to go away in the future, is that so?

Mr. Bert W. Pluymen: No Your Honor that is in respondent’s brief.

I failed to see how a creation of administrative procedures will be helpful in terms of an issue whether a compliant, states a claim upon which relief can be granted.

Justice William H. Rehnquist: You do not question or do you question his outline of the administrative procedures that have now been established to deal with these problems.

Mr. Bert W. Pluymen: No, Your Honor I do not except for one instance, and that is that at the time when this complaint was filed in 1973 the grievance procedure which was subsequently written into the rules and regulations, in other words the appeal with the word and then to the director and director sending someone down from the staff to investigate the complaint.

Those were in effect fact in 1973 and have been for quite a while.

There were merely made written rules and regulations.

They went through the formal procedure of passing it through the board.

I do not see how and when question comes up is to whether the claim has been stated, how the existence or non-existence of a grievance procedure would help in any matter.

As a matter of fact, under both the grievance procedure and that Inmate Legal Assistance Project which was cited in respondent’s brief the inmate does not have to utilize either one.

He can go directly in the Federal Court and file a complaint, and the established law in that area right now is that no exhaustion is required under Section 1983 the latest ruling as the Court knows being McCray v. Burrell by the Fourth Circuit.

Justice William H. Rehnquist: If we decide that this Court should decide that administrative remedies have to be exhausted and utilized first, to what extent do you think that would solve this problem?

Mr. Bert W. Pluymen: As far as a flood of litigation in the Federal Courts is concerned, which the courts have experienced, the District Courts over the last five or six years I think it would help tremendously.

Minnesota has had experience with it; Maryland has had experience with it.

An independent grievance type procedure has helped tremendously in reducing the burden on the Federal Courts and also the states.

But as an alternative Your Honor, the State of Texas has a Tort Claims Act, which inmates are presently utilizing to sue the State, it is Article 6252-19, and in addition to being able to sue the state itself and obtain money out of corpus of the state, the inmate has the regular common law tort remedy to sue the doctor individually.

So it is petitioner’s position that the respondent in fact has state remedies and that the Constitution itself and the Federal Courts should not under the Eighth Amendment and Fourteenth Amendment hear ordinary negligence from medical malpractice or tort claims.

Justice William H. Rehnquist: Would that physician’s claim of privilege in this sort of action or defense be any different by virtue of that he was employed by the State of Texas?

Mr. Bert W. Pluymen: The only thing the Tort Claims Act does Mr. Justice Rehnquist is it establishes liability on the part of the state itself.

There is an alternative; you can either try to take the money out of the doctor’s pocket under the Tort Claims Act or take it out of the state’s corpus.

Justice William H. Rehnquist: But if the physician would be liable on the fact then that liability is assumed by the state assembly is not the federal Tort Claims Act?

Mr. Bert W. Pluymen: Yes Your Honor that is correct.

Justice John Paul Stevens: Mr. Attorney General while you are interrupted, would you help me on the procedure here that complaint was filed as I read the record in February and the magistrate made a recommendation in June, and then the District Judge dismissed the complaint.

What happened between February and June as to why the state did not file a motion of any kind or an answer?

Mr. Bert W. Pluymen: Mr. Justice Stevens, apparently the complaint was never sent by the District Court to our office.

The first time that we ever saw anything about the case or heard anything about the case was when an appeal was filed.

Justice John Paul Stevens: Well, what is the practice in this District in Texas?

Does the complaint just get filed or is it somehow or other screen by a magistrate for leave to file in someway?

It was a little puzzling to me at that time to figure out what happened.

Is there any automatic provision in the rules down there for you to be served when something is filed against it?

Mr. Bert W. Pluymen: Your Honor the practice in the Texas courts is to refer the cases to magistrate both the habeas corpus cases and the 1983 cases.

Justice John Paul Stevens: For what purposes?

Mr. Bert W. Pluymen: For screening.

Justice John Paul Stevens: And supposing they find no merit then do they deny lead to file or --

Mr. Bert W. Pluymen: The magistrate would recommend either to deny relief to file or to grant relief to file.

What usually occurs is that the magistrate will recommend that the court give a list of recommendations and conclusions and he will recommend generally -- I have never seen one otherwise -- that the petition be filed, and there is an informal preparers question in almost all of these things it has to be decided one way or the other.

There is some determination made as to whether an inmate in fact happens to be a pauper we had some problems with that, so that has to be decided.

Also a question as to whether counsel should be appointed in the case even though there is no federal statute which provides the reimbursement.

Justice John Paul Stevens: But that is all done in advance of any service or notice to the defendants.

Mr. Bert W. Pluymen: I could not honestly answer that question across the board.

I know it happened in this case.

We did not receive anything.

Justice John Paul Stevens: This is not a sport.

I mean this is the way it is done frequently in this district, is it?

Mr. Bert W. Pluymen: I am not sure Your Honor; I could really not answer that, I just know --

Justice John Paul Stevens: The reason I raised that this practice has been followed in the Seventh Circuit was challenged at one time just wondering if it was challenged in that district.

Mr. Bert W. Pluymen: No, it has not.

I wish I could answer the question, but I cannot, we receive the complaints and generally in both habeas corpus cases and Section 1983 cases -- well I know in habeas corpus cases you get the recommendation.

You are served before the magistrate ever gets into the act.

In the Northern Districts, all of the cases I have ever handled you go ahead and receive the complaint without ever hearing anything from the court and you go ahead and answer it.

In this case, I do not know what happened whether it got to elsewhere.

Justice John Paul Stevens: Well, the magistrate seems to correspond it with the prisoner without corresponding with the defendants.

I was asking if you had any other information, but he did not ask the defendants if they wanted to file a medical records anything like that, which is, it seems a little bit unusual.

Mr. Bert W. Pluymen: My co-counsel just passed me a note and I am a little nervous this morning.

Justice John Paul Stevens: Well, I am not being critical I am just trying to discover what happened.

Mr. Bert W. Pluymen: I understand, but my mind is not working too clearly; hopefully it will be better as I go along.

But in 1983 cases the defendant has to be served, the defendant themselves, and the way we operate is that in habeas corpus cases we will --

Justice John Paul Stevens: This was the 1983 case.

Mr. Bert W. Pluymen: This is a 1983 case, right.

I was trying to make a distinction, but in 1983 cases the defendant has to be served and we do not automatically represent the defendants who were sued.

In other words, they have to request our office for representation.

So, the defendant has to request director -- but even the director has to request his representation because there are numerous cases where they will retain private counsel in 1983 cases, the number of defendants that we represent like the Howard and Charles (ph).

Justice John Paul Stevens: I see.

Justice Thurgood Marshall: You do not have to complain.

Mr. Bert W. Pluymen: I do not need to know whether we would serve with the complaint or not.

Justice Thurgood Marshall: Well, who you represent here?

Mr. Bert W. Pluymen: Mr. Justice Marshall I represent the petitioners, the director.

Justice Thurgood Marshall: Well, you do not have a complaint that the petitioner was not served; the petitioner was.

Mr. Bert W. Pluymen: That is correct.

I have no complaint about that.

Mr. Justice Stevens was inquiring as to the procedure that occurred in this case, and I just frankly do not know.

Unknown Speaker: Some procedure requiring the grant by a megistrate to leave to file a 1983 complaint?

Mr. Bert W. Pluymen: No Your Honor.

Unknown Speaker: Alright.

In other words, the plaintiff -- this was a handwritten one, wasn't it?

Mr. Bert W. Pluymen: Yes, Your Honor it was.

Unknown Speaker: And it was that had to be served on these petitioners.

Mr. Bert W. Pluymen: That is correct.

Unknown Speaker: But what you are telling is whether or not your office gets to defend the petitions, depends on you are being requested to represent the defendants?

Mr. Bert W. Pluymen: That is correct Your Honor.

Unknown Speaker: You have never heard of this case until it was an appeal?

Mr. Bert W. Pluymen: That is correct.

Unknown Speaker: Who represented the petitioners in the District Court?

Mr. Bert W. Pluymen: Apparently, there was no need to represent the petitioners in the District Court, because unless the District Court summarily dismiss without requiring a response.

Unknown Speaker: And that when the appeal was taken to the Court of Appeals you first heard of it?

Mr. Bert W. Pluymen: That is correct Your Honor.

Unknown Speaker: And does your office always represent defendants in cases like this in the Court of Appeals at least?

Mr. Bert W. Pluymen: Not necessarily, but as a practical matter most of the defendants will request our representation in the vast majority of cases.

There are some who retain private counsels, but even if the state has been required to --

Justice Thurgood Marshall: Don't you think that that case deals with attorney that represent Mr. Estelle?

The one I have seen it turns out (Inaudible).

Mr. Bert W. Pluymen: Mr. Estelle is sued thousands of times.

He is the name defendant in habeas corpus, every habeas corpus and every civil rights case filed in the institutions.

Private counsel would, and no case Mr. Justice Marshall where Mr. Estelle was requested anyone other than our office to represent him.

Unknown Speaker: Well, what you are suggesting is perhaps that other defendants then Estelle like the board of regions or other people who might be partied to 1983 --

Mr. Bert W. Pluymen: That is correct.

Unknown Speaker: -- under Texas Law, might have other counsel.

Mr. Bert W. Pluymen: For example, the Highway Patrolmen frequently have private counsel.

Justice John Paul Stevens: Mr. Attorney General, I do not mean to labor the point, but you assumed that Mr. Estelle was served.

I wonder if that is a valid assumption, because in forma pauperis complaint I assume the Marshall would not go out with the summons unless he got his fees, and the recommendation that he would be given permission to proceed in forma pauperis by the magistrate is in the same order in which he recommended that the proceeding be dismissed, which may explain why your clients never heard of the case until it was on appeal.

Mr. Bert W. Pluymen: It may explain it, I was really curious about it; I know our office never heard of the case until it was on appeal.

Justice John Paul Stevens: And I am just wondering if they are following Rule 4 thereof automatically issuing summons or what they do, and it seems to me that at this -- as I read this case, it seems to me as a pleading case, and here we are arguing the substance and lot of facts and all and I was wondering why there was nothing at all filed by the state.

It seems to me that maybe significant, but the answer is you did not know about the case.

Mr. Bert W. Pluymen: We did not know about the case, that is the reason, and it would not make any difference as far as substance is concerned whether the state were required to file a response or not.

The state came back and filed the motion to dismiss for failure to state the claim went out with the same result.

Justice John Paul Stevens: You would, but perhaps you would have filed a medical record, you might have had a different record before us and instead of just having prisoner allegation we do not know what you would have filed.

Mr. Bert W. Pluymen: That is true.

Justice John Paul Stevens: You might have investigated and find well there is something here.

We do not have any way of knowing what you would have done, had you been served in the normal course.

Unknown Speaker: But I take if the Court of Appeals just took it as if there had been a motion to dismiss file, all the allegations, the complaint were taken as true and they nonetheless held that that stated the claim for relief.

Mr. Bert W. Pluymen: That is correct.

The petitioner’s position is that when a District Court gets a complaint, which on its face clearly fails to state a claim upon which relief could be granted, it has the power to dismiss it without waiting for a motion to dismiss.

Unknown Speaker: So you disagree with the result reached by the Court of Appeals on the law?

Mr. Bert W. Pluymen: That is correct, and the Court of Appeals' opinion and also the respondent’s brief, it is very different for anyone arguing that there is a claim stated here to get away from the difference of opinion in a disagreement as far as diagnosis and treatment is concerned.

The petitioner’s brief outlines the general rule stated by Eighth Circuit Courts of Appeals when a motion dismiss is filed or when a claim is filed and the court looks at it and decides to go ahead and dismiss it for failure to state a claim, summary dismissal in other words.

That particular test to get underneath either the Eighth Amendment Cruel and Unusual Punishment Clause or Fourteenth Amendment is number one, if there is a total failure or refusal to provide medical care that presumably would be an Eighth Amendment violation and might also be a Fourteenth Amendment violation.

Unknown Speaker: Do you agree with that or not?

Mr. Bert W. Pluymen: I do agree with that.

Unknown Speaker: It has a total failure to provide any treatment in the prison.

Mr. Bert W. Pluymen: That is correct Your Honor.

Unknown Speaker: You think that would be a 1983 cause of action?

Mr. Bert W. Pluymen: I think that would state a claim.

Unknown Speaker: But what do you understand the Court of Appeals to have said here, this negligent treatment is sufficient?

Mr. Bert W. Pluymen: The Court of Appeals here came to the conclusion that there was a total failure to treat.

I have read that opinion several times and just could not understand why they reversed the District Court and the conclusion they come to is total failure to treat.

Unknown Speaker: If that is the conclusion, you agree with it?

Mr. Bert W. Pluymen: I would agree with the law that that is the law, but if the application of the law that the facts were correct, it is very difficult for me to understand --

Unknown Speaker: The states then withdraw the line between total failure and just an ordinary malpractice?

Mr. Bert W. Pluymen: An ordinary malpractice.

Unknown Speaker: Or negligence.

Mr. Bert W. Pluymen: Inadequate medical treatment without any exceptional circumstance like deliberate indifference, intentional neglect.

Federal Courts -- I understand the Fifth Circuit’s position to be essentially that well somebody has got to help this poor guy.

In the first place, he was not a poor guy he was treated by at least two doctors on at least eight different occasions.

They responded very quickly.

The day he was injured, he worked four more hours.

He requested a hospital pass.

They gave him one immediately.

They did not make him work any longer.

He went to the hospital, he was checked for a hernia, he was sent to his cell.

An hour later, he felt pain again, he did not feel good, he came back, they let him go back, he saw a doctor that very day.

Unknown Speaker: Well, Mr. Attorney, what if these Fifth Circuit’s opinion said the rule in this Circuit is that you stated 1983 cause of action when there has been a total failure to treat, you do not state one when you allege only a negligent failure, and we construe this complaint to allege a total failure.

Now, would you petition for cert on that ground?

Mr. Bert W. Pluymen: Yes Your Honor.

Unknown Speaker: Mr. Pluymen, I hope at Page 31, the Court of Appeals apparently read this as reading general medical services afforded by the state in these prisons are publicly known to be woefully inadequate.

Mr. Bert W. Pluymen: That is correct Mr. Justice.

Unknown Speaker: And that fall short of what you think would be the basis for a constitutional plan?

Mr. Bert W. Pluymen: Your Honor, in this class action lawsuit by a number of prisoners, which we have pending.

We have two to three of them in which the Justice Department is involved to extensive discovery that would be relevant, and it would be tried at the District Court level.

In this case, we failed to see how a general shortage of doctors in the Texas Department of Correction is relevant in anyway when he sees two doctors on a number of occasions.

They see him time after time, they give a prescription -- Dr. Astone gives a prescription as if the first day after he is injured.

Unknown Speaker: May I ask, what you are just telling is, is that in the complaint?

Mr. Bert W. Pluymen: No Your Honor that was in the Appendix submitted by respondent, the Appendix, a brief submitted by respondent to the Fifth Circuit.

It was a Citizens Advisory Report to a committee.

Unknown Speaker: That must be the one referred to I gather the footnote was --

Mr. Bert W. Pluymen: That is correct Your Honor.

Justice Thurgood Marshall: What is this Appendix Page 10 and 11?

Isn't that petitioner’s, I mean respondent, isn't that his writing?

Mr. Bert W. Pluymen: That is correct Your Honor.

Justice Thurgood Marshall: He says, he went to Dr. Ralph Gray, Medical Director of the Texas Department of Correction.

Mr. Bert W. Pluymen: That is correct Your Honor.

Justice Thurgood Marshall: He says himself that he had medical treatment.

Mr. Bert W. Pluymen: He does.

He not only went to see Dr. Gray, he saw Dr. Astone five different times.

Justice Thurgood Marshall: That is in his complaint?

Mr. Bert W. Pluymen: It is in his compliant.

He states he saw Dr. Astone.

The interesting thing about this whole complaint is that there was never any time when there was any substantial weight when he requested medical care.

He saw Dr. Astone, he saw doctor the very day he was injured.

He saw Dr. Astone on the next day; he was “examined” by Dr. Astone.

He stated that Dr. Astone’s medical record reflected he had a back strain, and Dr. Astone prescribed bed rest and pain pills for two days.

Three days later, he sees Dr. Astone again.

Dr. Astone prescribes bed rest and pain pills for seven days.

Seven days later he sees Dr. Astone again.

That sequence of the time between visitations and the time for prescriptions continues throughout this complaint.

Justice Thurgood Marshall: Is this a medical doctor?

We do not know, because you know in prisons the word 'doctor' does not mean a medical doctor.

It means that callman handing out pills, they call him doc.

Mr. Bert W. Pluymen: Dr. Gray I know the people who worked on the Prison Reform Committee, and they have all the respect in the world for Dr. Gray.

He is the Medical Director of TDC; he is the Chief Medical Officer at prison (Voice Overlap).

Justice Thurgood Marshall: And how about the prison (Voice Overlap)?

Mr. Bert W. Pluymen: Dr. Astone?

Justice Thurgood Marshall: No Captain somebody.

Mr. Bert W. Pluymen: Captain Blunt.

Justice Thurgood Marshall: You mean a doctor is a captain?

Mr. Bert W. Pluymen: No, sir, Captain Blunt would not be a doctor.

Justice Thurgood Marshall: That is what I thought, because this captain is a guard.

Mr. Bert W. Pluymen: In general way, if we are going to talk about -- here is the reports and everything.

In general, the medical captains are people who come out of the army and were medics and have tried and they are utilized by TDC on -- The issue in this case is whether a claim under the Constitution of United States was stated with the kind of medical care that this person alleges, petitioners just failed to see how it is anyway possible to conclude that the claim was stated.

Unknown Speaker: Actually that has been reported as the allegations of the complaint.

Mr. Bert W. Pluymen: That is correct Your Honor.

Unknown Speaker: That was submitted to the Court of Appeals by way of an appendix.

Mr. Bert W. Pluymen: Your Honor, that is correct.

Our position is that if there were 300 doctors in TDC, and he saw none, how is it relevant that there were 300 doctors there.

They alleged that there were two or three fulltime doctors.

Now, he saw two and he did not just see them once, he saw them on numerous occasions, and he saw them practically, immediately after he complained.

Unknown Speaker: The complaint says that he saw them on numerous occasions.

I find that the cite on this is very difficult to gauge for me at my age with my eyes.

Has anybody ever tried to translate this and place there something for it?

Mr. Bert W. Pluymen: I understand.

Well, in petitioner’s statement of facts we set out something, in respondent’s statement of facts some other parts of it are set out, neither is complete.

Unknown Speaker: The material submitted to the Court of Appeals by appendix there was a pleading is that Citizens Advisory Committee of report is not that -- not the sequence of treatment which is the sequence of treatment is in the complaint.

Mr. Bert W. Pluymen: It is in the complaint.

Unknown Speaker: What you are saying I take it is that even if the medical care in Texas prisons generally is inadequate, that is only complaints filed here, there is no showing, no allegation of the Court can act upon.

Mr. Bert W. Pluymen: That is correct Your Honor, it is completely irrelevant.

Unknown Speaker: Well I thought also, it is your claim or as a legal matter that an allegation of inadequate care was insufficient to state a claim under the Federal Civil Rights Act.

Then allegation of either inadequate care or negligent care was insufficient to state a federal claim, was that your point?

Mr. Bert W. Pluymen: That is the point, Eighth Court of Civil Appeals has dealt with.

Unknown Speaker: That is your position.

Mr. Bert W. Pluymen: That is the position.

Unknown Speaker: Mr. Attorney General anyway did you and your respondent can get us a translation of that you agree on?

Mr. Bert W. Pluymen: I think we can probably have it typed up Your Honor verbatim.

Unknown Speaker: That you both agree is that what was served.

Mr. Bert W. Pluymen: We can do that.

Unknown Speaker: I mean at least you have Page 3 or 7 of your petition, it really summarizes each allegation, does it?

Mr. Bert W. Pluymen: It is a summary and an interpretation.

Unknown Speaker: Well, it is an interpretation and not just --

Mr. Bert W. Pluymen: It is not a verbatim transcript.

The original record contains the complaint, and it is a legal sized paper, his writing as fairly big although, and it is not typewritten and so it is hard to read.

Unknown Speaker: So it reduces this the way we get it, doesn't it?

Mr. Bert W. Pluymen: That is correct Your Honor.

Justice John Paul Stevens: Mr. General I ask one other question.

We first are dealing with the fact, but under Conley against Gibson I guess it tested the sufficiency whether under any state of facts which can be conceived, there might be a valid claim proved reverse to that affect.

Then the Court of Appeals seems to adopt it in even more liberal standard.

At Page 31, they say that a situation calls for even greater liberality on the part of the District Court where the state has not been required to file any pleading whatsoever and that was the point we are talking about earlier.

Mr. Bert W. Pluymen: Do you think the standard for reviewing the sufficiency of the complaint should be the same or different when there has been no response, no motion, no nothing by the state?

Our position is it should be exactly the same.

Justice John Paul Stevens: So you would disagree with the analysis by the Court of Appeals on that point as well as on the test what Section 1983 requires.

Mr. Bert W. Pluymen: That is correct.

Although I could not predict like Your Honor said exactly what the state would have done, if I had to handle this case I would have filed the motion to dismiss the failure to state a claim.

Justice William H. Rehnquist: Certainly there is no hint in the Federal Rules as Civil Procedure that the standard is any different when the state has responded by way of a one line motion to dismiss or by some other pleadings when the question of sufficiency of a claim to state a claim is the complaint to state a claim is right.

Mr. Bert W. Pluymen: No there is not Your Honor.

I doubt that by answering the state could somehow salvage the complaint.

Justice William H. Rehnquist: Well, conceivably if the state answers, and then there is a motion for judgment on the pleadings, the plaintiff is entitled to rely on the state’s admissions and the answer is well as on the plaintiff’s complaint.

Mr. Bert W. Pluymen: That is true Your Honor.

The court would consider all of the cases decided by the circuit courts.

We would submit that on the facts there is no case that we have any substantial disagreement with as far as granting or dismissing a complaint.

Justice William H. Rehnquist: Is that what we usually take, our law firm take a consensus the Courts of Appeal?

Mr. Bert W. Pluymen: I understand that Mr. Justice Rehnquist, no you do not.

Justice William H. Rehnquist: We have never even held a total absence of medical care raises the constitutional question, have we?

Mr. Bert W. Pluymen: No, you have not Your Honor.

I was just citing the Eighth Court of Appeals because there are quite a number of judges and other collective wisdom in -- the facts that those cases when you compare them with the facts of this case and every case where they granted relief or permitted a complaint to be filed over a motion to dismiss, the facts of those cases were completely different.

They were a total completely different nature than the facts of this particular case.

Unknown Speaker: Is not your position at the Court of Appeals applied the wrong standard of law in deciding whether there was a cause of action stated, because the court says that the treatment was inadequate?

Mr. Bert W. Pluymen: And the court says it at one point, another point the court says it was a total refusal to treatment which --

Unknown Speaker: There is a totally failed to provide adequate treatment, now that is an adequacy standard, isn't it?

Mr. Bert W. Pluymen: That sounds like.

Unknown Speaker: And that standard I think that you assert as wrong.

Mr. Bert W. Pluymen: We have asserted that all the way through this case, we asserted in the brief and cite numerous cases in support of it.

Chief Justice Warren E. Burger: Mr. Hedges.

Argument of Daniel K. Hedges

Mr. Daniel K. Hedges: Mr. Chief Justice, may it please the Court.

My name is Daniel Hedges, counsel for the respondent J. W. Gamble.

The respondent would like to make just three basic points before the Court today.

The first of those is that a Pro Se Petition by an illiterate prisoner alleging a violation of his constitutional right to medical care should never be dismissed without requiring a responsive pleading or at least examining the relevant medical records.

Second, that a petition which sets forth a pattern of conduct, which establishes deliberate indifference by prison officials to the rights of prisoners to adequate medical care or to medical care at all, states a cause of action.

And third, during from the procedural point to the substantive point that the complaint itself, under whatever standard, the Court chooses to apply Mr. Gamble’s complaint does state a cause of action.

In reference to the question by Mr. Justice White just a few moments ago in the opening pages of the Fifth Circuit opinion, they state, we find the complaint sufficient in alleging that the action of the authorities was tantamount to a refusal of medical treatment.

Later on, in the opinion they do state it was inadequate.

I would probably find myself an agreement with my colleague from the Attorney General’s office that is not entirely certain just which of the standards of the Fifth Circuit did apply in this case.

Unknown Speaker: (Inaudible) The allegation to the complaint is true.

It is obvious you cannot conclude that there was a total failure to provide treatment.

He saw a doctor and a doctor did some things for him.

Now, you can say, they did either the wrong things or it was inadequate, but he had medical care of some kind.

Mr. Daniel K. Hedges: He saw doctors Your Honor, but we would certainly say that we can argue that there was a refusal of medical care.

I had cited the Court to an example from the Fifth Circuit case Robinson versus Jordan where the individual was complaining of severe rectal pain, saw doctors on several occasions, the doctors prescribed suppositories of some sort to treat this person’s pain.

The pain persisted.

He continued to complain, they would not do X-rays, they would not do further tests, and they would not change the prescription.

Months later, the person finally got another examination.

He had advanced rectal cancer, and have a colostomy that person stated a claim.

I would say that if a diagnosis is conducted, treatment is prescribed in accordance with that diagnosis, but the symptoms persist.

There is certainly a medical possibility that the diagnosis was wrong, in refusal to conduct to subsequent diagnosis, and if necessary change the treatment.

You are not really talking about just disagreement with the diagnosis; you are talking about a refusal to conduct a subsequent diagnosis in the phase of persisting symptoms.

Unknown Speaker: That is an assertion that the doctors refused to provide care that they knew should be provided.

Mr. Daniel K. Hedges: I think if they are -- if it is clear to them that the care which they were providing was having no affect whatsoever than the logical conclusion would be that their diagnosis was wrong, but --

Unknown Speaker: And it is actually a malpractice claim, isn't it?

And the other case you told us about that was a malpractice claim.

Mr. Daniel K. Hedges: That was a 1983 case.

Unknown Speaker: Yes, but it boils down to as a malpractice claim, doesn't it?

Mr. Daniel K. Hedges: It is very similar, and we do not need to rely on that in this case, and I hate to spend my time before the Court dealing with that.

Unknown Speaker: But that is quite different from a claim of a total failure or refusal to give any medical care whatsoever to somebody in accidents.

Mr. Daniel K. Hedges: It is definitely different from the total absence of medical care.

Unknown Speaker: Okay, and the two claims are different not under Gray, but in kind, are they not?

Mr. Daniel K. Hedges: Yes, they are.

We feel that we can come under the total refusal test as well for circumstance in this case.

Unknown Speaker: On the basis of the man’s own complaint he saw not one, but two doctors and saw them more than once.

Mr. Daniel K. Hedges: I would like to call the Court’s attention to certain other allegations in the complaint, in which on certain occasions, overall on certain occasions, this individual suffered from the deliberate indifference of prison authorities to his medical need.

This is the standard we would urge before the Court today, and not the total refusal standard.

This standard is set forth in our brief, and explained in some detail.

This is the standard we would set forth before the Court and urge if that an allegation of deliberate indifference by prison authorities to the medical needs of a prisoner states a claim, this test has several advantages, one of them being you are not looking at medical care.

You are not disagreeing with doctors, you are looking at the actions of the prison authorities, and I have cited nine examples in the brief for the prison authorities denied adequate medical care to this individual on administrative basis.

I would like to just bring back to the Court three of those, which we have, a very good example of what I am talking about here.

Mr. Pluymen pointed out this individual was never refused the opportunity to go to see a doctor or seek some sort of medical personnel when he was in pain, this is incorrect.

On February 7th and 8th 1974, when he was in solitary confinement, he asked to go on sick call.

He was refused permission to go on sick call by prison guards not by medical authorities, but by administrative individuals by prison guards.

The Law Enforcement Assistants Association, branch of the Justice Department has stated in one of its recent reports that denial to access to sick call is an open invitation to inmates to sue the institution for its prima facie evidence of denial of medical care.

He also had a prescription from one of the doctors that he did see that he received a lower bunk, the man had lower back injury, they prescribed a lower bunk; he never got one.

Once again, an administrative decision by the prison authority not disagreeing it is a diagnosis, not disagreeing that it is the treatment.

I think Mr. Justice Stewart is absolutely correct, we were discussing diagnosis, and we were discussing treatment a minute ago, we are not now.

Justice Thurgood Marshall: Mr. Hedges as I understand you that every time a prison guard denies a man a right to sick call, it is a 1983 action.

Mr. Daniel K. Hedges: Not every time he does it Your Honor but I would urge upon the Court the standard stated in --

Justice Thurgood Marshall: Perhaps (Inaudible).

Mr. Daniel K. Hedges: You cannot put a number on it Your Honor.

Justice Thurgood Marshall: I did not think you could.

Mr. Daniel K. Hedges: You cannot Your Honor but I would urge upon the Court standard --

Justice Thurgood Marshall: Because I mean, the guy every morning says I would rather have sick call than go to work, he never would go to work or he would have 365, 1983 a year.

Mr. Daniel K. Hedges: Some of the prisoners apparently come pretty close to filing that many Your Honor, I realize and that is a problem, but the Second Circuit in the 1974 decision Bishop versus Stoneman examined the full accumulation of instance.

What the District Court has done there is look at each individual incident alleged to know this incident by itself is not enough and they dismissed.

The Second Circuit reversed and remanded, I think, look at the accumulation of the incidence, and if from that accumulation of incidents you determine a series of incidents, which constitute a pattern of conduct demanding to deliberate indifference to the medical needs of prisoners then you have a claim.

Justice Thurgood Marshall: Well, do you think this complain shows there?

Mr. Daniel K. Hedges: I do indeed Your Honor.

There are nine separate instances where this individual --

Justice Thurgood Marshall: Well, I start over with a very great difficulty of a man that has a 600 pound bale for long that he cannot move.

Mr. Daniel K. Hedges: That is very difficult to understand Your Honor.

Justice Thurgood Marshall: Is it rather impossible, the man that has 600 pound weight for along with and to work four more hours before he gets a pay?

Mr. Daniel K. Hedges: I think what happened with the pound that bale -- we were in such a difficulty here Your Honor; it is hard to tell just what happened.

It is hard to tell a 600 pound bale fell on him or he was trying to pick up one to fail and strained his back.

Your Honor, it is impossible to tell.

Justice Thurgood Marshall: (Inaudible).

Mr. Daniel K. Hedges: It is very hard to understand.

It is also impossible to --

Justice Thurgood Marshall: But once you have worked the lead --

Mr. Daniel K. Hedges: If that is what he was trying to say it is hard to understand what he was trying to say Your Honor that a 600 pound bale fell on him, that would be hard to believe.

Justice Thurgood Marshall: (Inaudible) did not fail.

Mr. Daniel K. Hedges: If indeed a 600 pound bale fell on him that would be hard to believe.

He said the bale fell flat.

But Your Honor I think we are getting problem, we start trying to delve into just what this person said here.

Justice Thurgood Marshall: (Inaudible).

Mr. Daniel K. Hedges: I think it is a question of what is he trying to say rather than do we believe him or do we not believe him.

It is unclear from this petition getting back to man’s complaint.

You cannot tell whether or not there was in fact a diagnosis here.

The Court is asking was it there diagnosis of lower back strain.

All it says in the complaint is and once like this is Dr. Astone record show plaintiff had lower back strain, in another place as Dr. Gray, record show plaintiff had lower back strain.

In the same hospital two different doctors do not have their own records, the patient has the records, and it is impossible to tell from the complaint; who made that entry in the record?

Was it even a doctor at all, or was it one of these inmate nurses?

We get back to the questions that the Court asked at the very outset, those go to this procedural point.

Without the medical records themselves, without ever having seen the medical records it is really impossible to tell just what did happen to this individual, just what cure was received.

We have a great danger when we allow the District Courts to dismiss these cases, which are so very difficult to interpret and in fact difficult to believe admittedly, and there are so very many of them, but when we allow them to be summarily dismissed without a response and pleading and without any discovery, we run a tremendous risk at the very few valid cases or the valid cases that do come along will simply be thrown out with the invalid ones because there are just too many cases to consider and consider carefully.

What should be done here is that the state or the defendants in this case Mr. Estelle, Mr. Gray and Mr. Husbands should be required to assist to the Court.

This is not a question of whether Federal Courts will sit as medical review boards.

The question in this case before the Court is, should the defendants be required to play their role in the litigation of helping the courts to decide whether or not there is a valid claim, and the tools are there in the Federal Rules of Civil Procedures, summary judgment with affidavits a 12(b)(6) motion with the medical record simply attached.

None of this was done in this case.

Another solution which is there which was discussed earlier is the administrative grievance procedures.

Those are there in the Texas courts now.

In the Federal Courts, in the experimental project -- I am sorry in the Texas Department of Corrections, right.

Those administrative procedures are now available in the Federal Bureau of Prisons, 35% of their complaints received favorable action.

Those are complaints which never had to go to Court because they received favorable action in the prisons, within the grievance procedures and furthermore those which do go for these grievance procedures, and then get into the courts are going to have documentation attached; they are going to have a record attached.

It is not going to be like the case here.

So there is no excuse for the District Courts dismissing these cases without requiring some sort of response in pleading or some sort of discovery.

It is very dangerous in a few good cases, a few valid cases, will be thrown out because of the great flood of litigation and furthermore there are other procedures available.

Justice Thurgood Marshall: As I read this Appendix, the magistrate ruled that it could not be filed, or these are not permitted to be filed --

Mr. Daniel K. Hedges: It was filed and an immediate dismissal recommend Your Honor.

Justice Thurgood Marshall: No, he says I permit it to be filed, isn't that what he said?

Mr. Daniel K. Hedges: Permission to file in forma pauperis be granted.

The Clerk be required to file the petition.

Justice Thurgood Marshall: So he allowed it to be filed in forma pauperis.

Mr. Daniel K. Hedges: In forma pauperis, that is correct.

Justice Thurgood Marshall: Well, that is not what I asked.

Is this that allowed it to be filed?

Mr. Daniel K. Hedges: I do not know under any provision of which he could deny the permission to file it Your Honor.

Justice Thurgood Marshall: Well, we get back to what we raised in Attorney General, was Mr. Estelle served?

Mr. Daniel K. Hedges: There is no summons or vindication whatsoever of service in the record Your Honor therefore on the record we have to assume he was not.

Justice Thurgood Marshall: Well, how can you complain about the state not filing something while they did not know about it.

Mr. Daniel K. Hedges: The blame does not lie with the state there Your Honor, the blame lies with the District Court and the magistrate were not requiring that the state be served in (Inaudible) and wherever the blame was and the end result is that the District Court did dismiss a petition without any response and pleading Your Honor.

The effect on my client is the same whichever place it started out.

Unknown Speaker: What you are arguing for then is the exception to the normal provisions of the Rules of Civil Procedure where a defendant can simply come in and file a one sentence motion to dismiss and argue the sufficiency of the complaint.

You say that a defendant in a 1983 action is not able to do that.

Mr. Daniel K. Hedges: He could do it.

I think it should not be granted Your Honor unless -- all he would have to do is to attach a xerox copy of the medical records in his affidavits from the doctor.

Unknown Speaker: Well, but supposing he does not attach anything, the Rules of Civil Procedure do not require you attach anything in the way of the evidence to a motion to dismiss.

Are you saying that there is a special exception to the Rules of Civil Procedure for a defendant in a 1983 action?

Mr. Daniel K. Hedges: I think for a Pro Se Petition and a 1983 action such as the one here, the courts should not dismiss these cases without at least looking at the medical records and requiring some response and pleading.

It is not in the Rules of Civil Procedure Your Honor, it is absolutely correct that this is the position that several of the circuits have taken, and I would urge before this Court that it is a very sound position for the reasons that I have already stated.

I would like to move on very briefly from the questions of Procedure to the questions of what is a proper standard once a District Court has one of these petitions for reviewing it.

I would urge upon the Court the standard which I have already touched upon that deliberate indifference by prison officials to the medical needs of prisoners, allegations of this state a claim under 1983, before that test it is really essential that the Court keep in mind that whatever test the Attorney General's office advocate and they advocate this exceptional circumstances test.

Whatever test I advocate, the improper test was used in the present case, and that was the so-called prison deference rule or hands-off doctrine.

This is at the District Court level.

The magistrate used this test and this is one which you simply think we are going to interfere with the decision of prison officials, which is probably inadequate test it matters with administration of prisons, it matters with discipline, but the circuits uniformly held this is a totally inappropriate test when you are talking about the medical needs of prisoners the constitutional rights of prisoners.

The proper test is that a deliberate indifference and I have already dealt with the case, which best exemplifies, Bishop versus Stoneman which the Court looked at all of the circumstances involved.

As the Second Circuit says that based on this accumulation of instance we see a pattern of conduct here, which indicates a deliberate indifference to the needs to prisoners.

Unknown Speaker: Well, in all these cases, it would be essential in a case such as this for the Court to come to some judgment as to how gross or how deviant the performance, the medical personnel was.

Mr. Daniel K. Hedges: Whereas you might not have to in one case, Your Honor you might have it the --

Unknown Speaker: But In this one you would have to look at the course of treatment, and come to some conclusion as to whether the doctors were indifferent or whether they were merely negligent or whether their treatment was adequate.

Mr. Daniel K. Hedges: Well, in this case Your Honor I would urge that the Court look at the actions of the non-medical prison personnel, nine separate instances, which I have set out in brief, in three of which I discussed with the Court just a minute ago and I think you will find that those completely aside from diagnosis and completely aside from treatment.

Unknown Speaker: Well, as I understand the suggestion that at least they stand it out to be deliberate indifference of the prison officials that when if ever do we get into the question of the adequacy of the medical treatment under your submission.

Mr. Daniel K. Hedges: Your Honor I think I discussed that somewhat in my colloquy with Mr. Justice Stewart a little while ago that you have the situation you likely did in Robinson versus Jordan if you are going to look at that, of course one of the initial quetions is are you going to look at it at all.

Unknown Speaker: Well, under your suggestion would -- looking at the adequacy of the medical treatment be required?

Mr. Daniel K. Hedges: It would be one of the factors you would look at.

It would not be the sole factor, and probably --

Unknown Speaker: But the basic standard would be deliberate indifference of prison officials to the medical needs of the inmate.

Mr. Daniel K. Hedges: That is correct Your Honor, and the medical treatment would be or denial of medical treatment would be one aspect of this, and when you look at a deliberate indifference standard -- if you are talking, and you can establish deliberate indifference to the needs of all of the prisoners in the prison system, this of course is relevant to an allegation of deliberate indifference to the needs of one of the prisoners in the prison system, and the fact that at many times there is one doctor available to 17,000 prisoners is relevant to the care afforded or the interest and the needs in the situation of one of those --

Unknown Speaker: No matter how adequate his particular treatment of a particular inmate may be.

Mr. Daniel K. Hedges: I do not think, I think that would be going be going too far.

I think you need to look at the adequacy of his treatment certainly.

Unknown Speaker: Would that be relevant only in a class action?

Mr. Daniel K. Hedges: It would certainly be more relevant in the class action Your Honor, but it would not be totally irrelevant in the case such as this, and I would like to call the Court’s attention on this point that in their brief the Attorney General’s office does not allege if there was any real prejudice or that the outcome of decision by the Fifth Circuit was in anyway influenced substantially by their reference to this Appendix.

Therefore, this is not a matter that the Court should even really consider and furthermore it was clearly a proper matter for judicial notice since it was the report of a working paper, which ended up being a report from a legislative committee.

So it was perfectly proper for them to consider it, it was relevant to the medical care.

Unknown Speaker: Mr. Hedges, talking about the standard that you would have a supply, in your brief you state that allegations and mere negligence by prison medical personnel or disagreement as to the diagnosis do not constitute action of proclaims under the Civil Rights Act, have you changed your position on that?

Mr. Daniel K. Hedges: No, I have not Your Honor.

I have concurred with the Attorney General on that.

Unknown Speaker: If this complaint alleged nearly negligence on the part of the doctors you would not be --

Mr. Daniel K. Hedges: Well, I do not think I would be arguing this case in this fashion.

No, Your Honor, I do not think that states, that does not state a claim.

As the Attorney General has pointed out there are other remedies available, they are short of relying on your constitutional remedies, you simply got the Texas Tort Claims Act available, and several other remedies.

Unknown Speaker: There is a Texas Tort Claims Act.

Mr. Daniel K. Hedges: Yes sir it is right.

Unknown Speaker: And it is available to inmates of countries.

Mr. Daniel K. Hedges: Yes it is Your Honor and that would be the solution from your negligence.

Unknown Speaker: You are relying on averments of negligence against nine medical personnel.

Mr. Daniel K. Hedges: More than mere negligence, but grows indifference to the needs that this individual, just an insistence on completely ignoring him on several occasions.

Unknown Speaker: Do you argue that that rises to the level of an Eighth Amendment violation.

Mr. Daniel K. Hedges: If there is a pattern of such conduct against such an individual, yes Your Honor that is exactly what we would argue.

Unknown Speaker: Under the facts I have read in this complaint?

Mr. Daniel K. Hedges: Yes, Your Honor, we argue that the delivered indifference against this individual does amount to Cruel and Unusual Punishment.

Unknown Speaker: It is the only possible federal constitutional claim in these cases; there is no procedural due process claim.

Mr. Daniel K. Hedges: Yeah, there is not.

Unknown Speaker: And there is no other possible procedural claim?

Mr. Daniel K. Hedges: There is not Your Honor.

Unknown Speaker: The feel is there.

Mr. Daniel K. Hedges: There is not.

Cruel and Unusual Punishment standards, what we are dealing with -- I have talked about the procedural problems, I think the Court delved into them very closely, at the very outset with their questions of the Attorney General of this.

We have never seen the medical records.

We do not really know what happened in this petition, it is exceedingly difficult to read and simply in profit of relying these individuals to try to make these pleads, we have looked at the standard of care.

I would like to point out one more thing that is in the complaint, one more instance of this deliberate indifference, I cited one, I would just like to cite one more to the Court, and I think it will convey to the Court somewhat better than the denial of sick call, what deliberate indifference really is.

On January 31st Gamble went before the unit disciplinary committee because he refused to go to work.

One of the people who testified at that disciplinary committee meeting was the Captain Blunt who he had seen on so many occasions at the infirmary.

Now, three weeks previous to this Captain Blunt had prescribed for Gamble hypertension medication and pain medication.

At the time of the hearing Gamble was still receiving his medication.

He was in a physical condition, which require hypertension medicine and back medicine.

Blunt testified at this unit disciplinary committee hearing that this man is in first class medical condition.

First class medical condition means this man can go out in fields and go back to work on the 600 pound bales of cotton or whatever heavy labor there is.

Immediately following that he was put in solitary confinement, there was no medical examination of him before he was put into solitary confinement.

This is a textbook example of deliberate indifference by prison officials to the medical needs of this individual.

To briefly summarize this is a case where the wrong procedure was used.

There was on response in pleading required, the medical records have never been seen, and all that might be required here is to take a look at these medical records.

Furthermore, very simple streamlined procedures are available both through the Federal Rules of Civil Procedure, and through these administrative grievance procedures which Mr. Chief Justice Burger has called for in his 1973 speech on the state of judiciary, in which Mr. Justice Powell has touched upon in his pro-tenure (ph) decision.

Texas now has them.

It is too late for Mr. Gamble to utilize them, but they are available now, and this Court should not be seeing any more cases coming out of Texas like them.

Mr. Gamble simply asked to be a court of the same right that other prisoners in Texas now have.

Second, the standard of care, whatever the Court decides with the proper standard, the wrong standard was applied here, and that was just this hands-off doctrine.

We just would not interfere with the prison officials’ decisions, and third completely aside from questions of diagnosis and treatment Mr. Gamble’s complaint does state a cause of action in case of deliberate indifference to his medical needs by the prison administrative officials.

Unknown Speaker: Mr. Hedges Is it really fair that Judge Duhé (ph) has said that he applied the hands-off in prison matters approach, because I was on an impression, he was residing in some major piece of litigation involving a review, all the medical records within the Texas system.

Mr. Daniel K. Hedges: Doctrine Judge Duhé (ph).

Unknown Speaker: Isn't that correct or am I misinformed?

Mr. Daniel K. Hedges: Your Honor we cannot tell from this case whether Judge Duhé (ph) really even reviewed the magistrate’s decision or not the Lawrence versus Wainwright case, which is the hands-off doctrine case as in the magistrate’s decision.

No indication whatsoever in the record that there was any independent review of the magistrate by judge.

The all Judge Duhé (ph) says this we adopt the recommendations of the magistrate.

Unknown Speaker: I see.

Mr. Daniel K. Hedges: So that was the standard, which was not --

Unknown Speaker: If I am correct in believing, he does have some major case pending or he decided something involving that.

Mr. Daniel K. Hedges: That is correct.

He deals with care afforded to prisoners in the Harris County jails Your Honor.

Unknown Speaker: I see.

Unknown Speaker: Magistrate’s report states that he requested that then plaintiff to clarify, and particularize the allegations and depravations.

The magistrate then goes on to say that his response was negative, he did not do that.

Is that a response in the Appendix.

Mr. Daniel K. Hedges: It is not and must not have been a response Your Honor.

There was no response, and with mail being a way it is so in my efforts to communicate with my prisoner I do not know whether he received that request or not, but I do not believe there was a response.

Unknown Speaker: But I think we must assume that he did.

The magistrate says his response did not do so.

They have been lost somewhere.

Mr. Daniel K. Hedges: It is not in the record, which I received when I was appointed by the Fifth Circuit Your Honor.

Unknown Speaker: I was also puzzled by the last comment you made.

Judge Duhé (ph) signed a final judgment, and he says for the reason set forth in the magistrate’s memorandum.

Are you suggesting he did not look at the memorandum?

Mr. Daniel K. Hedges: No, it is impossible to tell from the records Your Honor what degree of review there was.

If there was a great danger, it is helpful to utilize the magistrates, but as the Court is very well aware of the enormous volume of these cases.

Unknown Speaker: We run the great danger of the courts abdicating their responsibilities to the magistrates, and letting the magistrates make these recommendations, I have no indication whatsoever if that occurred in this case.

We said you cannot assume that the District Judge did not do his duty.

Mr. Daniel K. Hedges: Certainly not, Your Honor.

Unknown Speaker: Mr. Hedges one other question, there is the -- did docket entry make reference to a motion to vacate the District Judge’s order, I could not find that.

Do you know if there was in the nature of the a motion for a leave to amend the complaint or for --

Mr. Daniel K. Hedges: That simply requested that if he vacated, it is also Pro Se.

Unknown Speaker: And no additional backed allegation?

Unknown Speaker: No, there were not.

Chief Justice Warren E. Burger: Mr. Pluymen you have about three minutes left.

Rebuttal of Bert W. Pluymen

Mr. Bert W. Pluymen: Your Honor, the apparent from our arguments today and more apparent from the two briefs that counsel and I had no disagreement, this is the law to be applied.

I have no disagreement with the deliberate indifference test, and the court should decide to use that test under constitutional standards.

The only disagreement that we have comes to the application of the law to the facts.

The deliberate indifference, particular occurrences cited by counsel in his brief are taken completely out of context.

The failure of the building department to issue him a lower bunk for one week during a course of medical treatment by Dr. Astone four weeks are failed to see how that stands out.

His medical prescription for 30 days given by Dr. Gray which was lost for four and then given to him, I fail to see how that alleges any constitutional claim.

He is being threatened by a lieutenant and a sergeant 60 days after he was injured, and he was asked do you want to go to work, he said no, and they threatened to send him to the “farm”.

That was some 34 days after Dr. Astone had ordered him to do light work, and he had refused to do it.

He was taken before a disciplinary committee twice.

The first time after having been cured for by Dr. Astone for three weeks he said I still heard Dr. Astone has had me for 26 days under his cure, he did not even notice my high blood pressure.

The disciplinary committee did not say go to work or we are sending you to solitary.

They said we are going to send you to see another doctor.

The very next day he saw Dr. Gray.

He remained under Dr. Gray’s care for two weeks after that.

It was not until 86 days or 40 days after that first disciplinary committee hearing; 86 days after the injury that he was taken before disciplinary committee the second time and that is when he was sent to solitary for refusing to work.

It had been a long time; he had been doctor’s care twice.

Doctor already ordered him to do light work months before he had refused to do it then, they finally cracked down on him, and sent him to solitary.

So there is really no deliberate indifference in this case as far as constitutional standard or claim is concerned.

Bishop v. Stoneman which is cited by counsel as the best evidence or the best example of deliberate indifference.

The allegations contained in that case are horrendous, back injury, request to see a doctor - it took six months, people vomiting blood, not seeing doctors for seven, eight days after that.

The facts are just -- it is not only difference in degree in that case, but in kind.

If Your Honors were serious about us typing up verbatim transcript to this complaint since we agree on the law Your Honors can determine for yourselves.

The application of all the facts, there is no sense in us arguing over.

Chief Justice Warren E. Burger: Perhaps the head counsel here is trying to agree with you that it is a correct reading.

Mr. Bert W. Pluymen: As far as the medical record is concerned should the Court call up the medical record in every case.

Our office will submit the medical record generally to the Court along with a motion dismissed or whatever planning for the benefit of the Court.

In this particular case, what difference does it make in terms of whether he stated a complaint or not?

Upon reading the complaint he named the analgesics, Robaxin, febuverine, sodium salicylate, the EKG.

I spent two days in a county medical library trying to figure out the terminology that he states in his complaint.

He obviously copied it.

We do not even have to assume that he copied it out on his own medical record, but taking a look that the Court called up the medical record what difference would it make.

Chief Justice Warren E. Burger: I think your time is up now counsel.

Thank you gentlemen.

The case is submitted.