acts as modified by the supreme court's decision in wilkins supreme a summary judgment is appropriate when the plaintiff has submitted a sworn affidavit that states that the defendant quote forced a finger into  that affidavit incorporated is a factual basis for the guilty plea i do not believe so your honor ok i just was wondering right i didn't see that it was but i read these wander in the charging documents in the record of docket seventy eight dash one it states that he had obstructed or closed off for lockhart without violence right that's the charging document and he pled guilty at some point and there's you know there has to be a factual proffer of the basis of guilt and so i was just one and i can't tell from looking at the record and maybe it's not a part of the record and that's why and that answers the question but i'm wondering if it is a part of the record what the factual basis that was offered wise for the guilty plea to the extent that i know it's just that he failure mr sky years of failed to clear the rover's area if there was further basis i'm not aware of it being in the record i guess the problem for you is it was really incumbent upon state to establish if it wants to raise the collateral estoppel or kind of defense it was incumbent upon them to establish  factual basis for that conviction was and not your burden right that's right you're on a course i know you were appointed on appeal is that right yes your own right but not your client's burge correct your honor and not only not your client's burden but it's not a part of the record as far as you are aware anyway as far as i am aware standing here today that's correct but just to be clear even if there were a collateral estoppel issue or a heck yes you know that has no bearing on the sexual assault claim it might have a bearing on some of the genesis of the excessive force claim generally but not on mr schuyler sexual assault weapon other than the sexual assault you also had some other issues involving the application of the happened right after the attorney conference was it and it is our it's our position that summary judgment was inappropriate as to the entire application of force after the attorney client has it and the pepper spray the takedown and and  the sexual assault yes you know what you say went to the district court was basically wiping the evidence right yes your honor and mr conyers submitted a sworn affidavit it was e tail it was consistent with his  sworn amended complaint and the district court essentially weigh the evidence and should have done that under andersen will on the on the take down didn't the in your client under oath state that  got on the floor after pepper spraying him and he complied with that order but there is one spot on the record where he did state that you're on how do you how do you comply with the order and then say that you were there was a takedown how do you do both things at the same time  you had to i think officer lockhart himself says that there was a takedown so to the extent that my client said it one point that he got on the floor i think in the totality of the record that should still be viewed as a as an application of force to my client even though he admitted that he did that he complied i think your honor you there is one one part of the record where he does say that he got down on the floor however he's otherwise consistent that he was taken to ground and that's what officer lockhart's us focusing on the sexual assault your honour's boxer acts as he sets out i mean i guess your position is were were required at this stage to take his affidavit and if they can be reasonably read together and a way that supports his complaint or a botched a decent yes your honor as in a sexual assault claim the boxer accepts out an objective vs subjective test and the objective pronk as articulated in boxer x requires that there be more than to minimize injury our position is that that has been abrogated by the supreme court decision and wilkins  other circuits we cite rickson v stover of the third circuit have moved towards a more holistic analysis focusing on the nature of force the supreme court said that that's now the core judicial inquiry  so our position is that boxer acts that objective prong can't be applied so strictly your honor if in focusing briefly on one factual issue the district court's decision pages two to three appeared to rely very heavily on this inference that mr scott in years was wearing pants when he was sexually assaulted to be clear your honor that was not a position argued by the defendants below some of the district court did sue a spontaneous we believe that that was a reasonable inference that should have been drawn and mr skinner disfavor but even to the extent that that it wasn't a reasonable inference the defendants themselves below offered an interview of my client a sworn interview by an investigator which my client explained that his pants were kind of down but he was wearing large pants and my client is not a large guy he's five eight one thirty seven and that he wasn't wearing underwear right and he was not wearing underwear if there are that buzzing sound that we keep getting val in representing the officer your honor we have a red suit and mate who had a prior sexual history and who was serving time for exposure of sexual organs required to be manacled and chained and as courted by two officers when going from one location to another we do have two different areas that really are in dispute at this point one is the use of the pepper spray they scored again or to take down to the floor and cuff a man and then being taken and to have the pepper spray removed  the other issues have been found to be without any merit and abandoned on appeal so i'll just address these issues the determination there's no factual basis that is offered that conflicts with what what the petitioner has gone ahead and alleged in his complaint in this case that's the problem that's why i was asking opposing counsel about that because i couldn't find anything in the record the charges themselves don't deal well the charges do show and the police shows it goes through this w but that doesn't mean that excessive force wasn't used in or in arresting him or taking him down for this particular event in other words it's not necessarily inconsistent that he both did something that was that he should have done and that your client used excessive force in arresting him for that conduct it may not but there are also for there to be excessive force there needs to be number one some culpability in the minds of the officer well but hold on just one second if we're talking about collateral estoppel we need to know what happened what what what it was specifically that he pled guilty to right we need to have the facts of what happened and then we can line those up with what he's alleging in this case and see if there are any and consistencies but and if you're telling me as i think the record seems to indicate that that's not clear in the record then i think we have to move on to a different argument well the record  not a question now the details of it as set forth in the arrest warrant upon which the information was based that he pled that all of those  problem is that the problem is arrest warrants there's nothing as i can tell in this record to establish that the facts alleged and arrest warrants were made the basis of the factual plea for the conviction all of the detail fives are not part of that record yet but that they're probably t head bar where for example there was probable cause to support an arrest but there was never the less the use of that excessive force agree with that right and the absence of a factual basis for the plea in this instance i don't know how we can say that the conviction necessarily you know bars his claim of excessive for if there is interference with the officer then the benefit of the doubt as to how to handle the situation generally goes to the officer unless there is evidence that the officer has used excessive force had a malicious he alleges that he did six you know mr green it just doesn't seem to me that this can be resolved to a summary judgment well the minimal force that has been approved they take down there is no evidence that there was any injury as a result of that the he was taken immediately to decontamination where he remained for fifteen minutes there is nothing to end the k we've said the use of pepper spray is excessive quote is excessive force in cases where the crime is a minor infraction the arrestee surrenders is secured and is not acting violently and there is no threat to the officers or anyone else and when you read his several affidavits you can certainly read it as being consistent with the view that given what we said and that the use of excuse of pepper spray here was excessive you got the affidavits of two control tower officers and two officers on the ground but we can't we can't credit them over his half a day but at summary judgment can when there is a speed there still has to be or excessive force either malice on the part of the officer or a showing of substantial injury there is no president say that the use of pepper spray can be excessive force right there are circumstances where it can be excessive force here we've got a centrally one burst of pepper spray he's taken the ground without any entry and immediately decontaminated he has pled that he has resisted an officer now the details of that resistance our grade are not in the record that i am aware of but still you do not have any injury any evidence of any malice on the part of the officer or anything to indicate that what he did was excessive but if we credit his if we credit is affidavits i think you and then the second aspect of it which i consider to be more serious of the two is of course the anal penetration which you as denied by the officer den y the control tower officers and other officer that when we have a question of fact i mean that's the problem there well again every question of fact does not create a jury issue well but that seems to me like it would be a pretty material question of fact i mean why wouldn't that be a material question of fact well under the boxer case for aston's boxer x case are checked by medical there's no complain of any problem with his rectum two other times that day he is saying there is no compliant  february the fifteenth he's distressed over the fact that he's facing forty years in prison and at that point he starts eating feces and smear and feces and it's really not until about three weeks later that we have any report that he is contending that law carden started his finger up his rectum a mediately upon that report been made  a supervisory officer we did it and took a statement and immediately sent him down to medical for examination and at that point in time they did exactly name and they found no evidence of any entry and the only thing happen ormal they found was that he had a next arnold hemorrhoid as far as his statements as to what occurred when he is explaining all of this he is acadian that he was wearing clothes that were too big for him the one in his socks had not come in and darren what he considers to be a struggle that his pants came part way down hemorrhoid have caused him discomfort but if he legitimately thought that the officer had done something wrong then he had plenty of opportunity for two to three weeks to go ahead and tell medical he send suicide prevention at that point in time and he takes no effort to go ahead and tell anybody until all of this is jerry is over and at this you understand that i mean i do i can't say that it's facially absurd or ridiculous there's nothing that he's alleged that we can look at and say oh this couldn't it happens doesn't contravene the laws of nature think that's the problem right i mean you've got a really good jury argument well i don't believe that we need to go to a jury because of the fact that there's still a requirement that there be some proof of this otherwise every time any inmate makes any statement no matter how ridiculous that i was injured or i was sexually assaulted that that always invariably will create a jury mr parents is there anything you need to clear out that we don't understand just one point your honor there's been some suggestion about credibility on this and the mental health of my client i point this court to moore thought we ought to just go ahead and start