Whether the Eighth Amendment allows a court to create a constitutional defense to an admitted Eighth Amendment violation requiring a prisoner plaintiff alleging deliberate indifference to serious medical needs to prove he was denied all medical care before prevailing

QUESTION(S) PRESENTED 1. The Question before the Court is Whether the Eight Amendment under Estelle vs Gamble allows a Court to create a Constitutional Defense to an admitted Eight Amendment Violation which requires a prisoner plaintiff alleging deliberate indifference to serious medical needs to prove that he was denied all medical care before he can prevail on an Eight Amendment violation at the Summary Judgment level of the proceedings? See Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) Prison Medical Officials knew the Prisoner was infected with Tuberculosis and thereafter claimed the Prisoner was faking his disease and instructed him not to return for further medical attention but reluctantly continued to see him and did not provide treatment for the Tuberculosis they knew he had until after the Prisoner became paralyzed. They then allowed the Prisoner to be hospitalized for Tuberculosis Treatment the Medical Officials initially refused to provide. Imagine being locked up and having to depend on one source for medical attention then being diagnosed with Tuberculosis in one institution only to be transferred to another where the Medical Director announces that you are faking your diagnosed disease, instruct you not to return for medical attention, and ultimately after you become paralyzed from the disease he allows you to obtain the medical attention to which he knew you were entitled to from the beginning. Further imagine after filing legal actions against these Medical Professionals, the District and the Appellate Court rules that the fact that the Medical Professionals ran irrelevant and unnecessary test but still allowed you to be hospitalized after paralysis served as a defense for the Medical Official’s initial Indifference of calling the Prisoner a fake and demanding he not return for additional medical attention. A Prison Medical Official violates the Eight Amendment when he has knowledge that a Prisoner has a serious Medical Problem and is indifferent to the Prisoner’s Medical Treatment. His subsequent conduct has no bearing on his initial Indifference. The District and Reviewing Courts were of the opinion that these Doctors and Professionals earned a Constitutional Defense to the Eight Amendment violation 2 ; because they subsequently allowed the Prisoner to be seen while never providing Treatment for the Tuberculosis until after the Prisoner became Paralyzed by the disease. Their holding places the burden that an Eight Amendment Prisoner Plaintiff is required to prove that he was denied all medical care in order to prevail against a Motion for Summary Judgment. 2. Is it a violation of the Fifth Amendment’s Due Process Clause for an Appellate Court to refuse to review Questions of Federal Law under the Federal Rules of Appellate Procedures, Rule 4? 3