with regard to the paranoid schizophrenia what is the allegation as true his communication of that and as to who exactly who he  and i need a treatment he doesn't give any indication of when the how no your honor all he says is that he was been treated for treated for this since two thousand and two and at least as the day of his life of his of his shows the pants were underneath my clients are and if you want the pants you got virtually naked man standing in front of you with a broken arm and a brace just grab the pants but instead for reasons that are unknown he decides he's going to grab this man's broken  force and going through the broken arm or sponsors of west with full knowledge of his medical condition everybody in the prison knew gunther had broken his arm and here he is standing at the braces not covered up by anything because the man is virtually naked and he sees this brace on there he could have supervisor and the and the guard decide well i'm going to put some pain on there is no record there's nothing in the record any prison unrest or conflict which would give luke all the deference under within the record merely reflects the force all the says on page six is with respect to the march seventh incident plaintiff has knowledge and her injury resulting from standing in the cold as i really did judge economist doesn't say anything about the arm twist mind on me on mentions on page three he's making going through the allegations and he says he stuck his finger in his face and he grabbed his injured arm and tried to force it behind his back but at least desire revealed he doesn't make the response to them that allegation that's why i'm focusing on it whereas a registered judge just says the planes pleaded against corrections officers in droves do not go away brutality intentionally causing physical injury most involve using language he found offensive but again the magistrate judge didn't seem to directly address the arm twisting so you're correct as above and i believe was an oversight by the luminous pages what was going on in the prison he complained about a lot of things you complain about how he's treated and a spokesman for one thing for sure spoke about was this incident with officer under what circumstances that night him mental health treatment and the circumstances under which showing a any of the doctors at either of the institutions were deliberately indifferent to his spinal injury and as a result his complaint even construed on  this circuit time again as stated that the reviewing court is not going to take the position of a medical review board to determine the adequacy of care if it's at if you receive some treatment then the allegations are insufficient in this case he received ibuprofen he complained that the pain was too severe it was initially a six hundred milligram dose he comes back to the institution medical staff and says the pains too severe i need something else and then increase it to eight hundred milligrams during that six month period at some point he comes up with the idea to contact his care provider for his spinal injury is able to get a letter or some records to show the institution and once they're actually made aware of the severity of his spinal injury they immediately refer him out to a neurologist to he's given an m that the facts as pleaded show that when they were actually aware when they were made aware of the severity of his many of his spinal injury they immediately referred him to additional specialist for diagnose six he received additional tests to try to solve that you don't have to take  y i think that part of the case law that i don't deliver to difference is that an inmate when they come in a doctor makes their own assessment but an inmate's word doesn't have to be taken at face value and under every every single circumstance they evaluated him he said he had a preexisting condition and they made the medical determination that six hundred milligrams by program was sufficient when he continued to return to them complaining about pain from the injury he day increase the dosage take hundred milligrams and then when they received the severity of it he says that he was previously diagnosed with a mental health issue but he never provides them with minarets mental health records in his complaint in his objections to his r n r he states that he was previously diagnosed in a correctional institution at richmond correctional but he was there's nothing his medical records he says that the doctors are viewed as records and they've apparently lost them misconstrued them that they have been improperly abandoned or for whatever reason but the doctors reviewed his medical files saw no prior diagnosis or treatment for mental health needs and made the determination that he wasn't go over that again because when i asked your river series about when was this previous diagnosis he thought it was on the outside are you saying that the only previous his objections to the r and r he does state that in richland correctional he was diagnosed with paranoid schizophrenia and once he was released in late replaced on parole at that point he was receiving treatment but he says that  issues he calls it what i think he's his language is paranoid skitzo even a prior diagnosis from an outside physician though doesn't mean that every doctor thereafter in a correctional institution is mandated to come to that same medical  conclusion same treatment that's why this allegation fell as they were a possible claim for relief because he has an alleged sufficient facts in this complaint even considering those additional things in his objections to the r and r to establish that the doctors were made aware of an excessive risk of safety or possible risk to the inmates and they actually drew the inference that their denial of treatment would lead to an excessive risk that inmate let me ask you about him in the the ma here i'm just having some difficulty between the two judges opinions one of them says he had an intake appointment on in early two thousand and eleven when she complained about the do we know about who do you think is right about when did he actually see this particular doctor i think that that's a clerical error on behalf of the the district works opinion his initial assessment was in february of two thousand and eight according to the complaint i'm going to construe those a received a letter from his outside physician a doctor was i believe in the six month period that people are talking about is between early oh wait and later on in no way yes the allegation is that in august of zero eight he was able to gather judge nor the district judge really addressed you give him some reasons why his complaint isn't good enough but neither the district judge or magistrate judge did in terms of addressing the allegation that me by the arm and he led but it's fingers in his face several pages later his complaint it's like a running diary a handwritten a diary he says oh i forgot to mention he also tried to bend it behind my back no but that's in the same document correct but  i think that's why i think those are trying to bend it behind her back when you have a broken arm if there's no no people logical reason for it would seem to be an adequate complaint when i would disagree and when you construe the facts as we did in the complaint there was clearly a legitimate good faith reason for the use of force corrections officers trying to get the inmate dressed out transported to another medical facility so that he can be provided with additional medical treatment this is the main thrust of year complaint as i'm being denied with medical treatment corrections officer luke was trying to expeditiously get him to that transport and when he's faced with an inmate that's recalcitrant that's refusing an order whether expressly stated put your clothes on the four implicitly by the procedure but the inmate was clearly aware of he'd been transported off the facility and i was the one procedure was he was ok to have the patients with you but you're supposed to put them full so that you know the facts as described is he got once a corrections officer luke who grabbed him by the arm was able to get the pants away and threw them on the ground but what i mean is what was wrong with his having the pants well the transport procedure he calls this a shakedown cell what shakedown cell if you do a contraband check you go there strip search the inmate you train you get the clothes changed out to make a transport and the natural inference is from  described in the complaint is that's what was transpiring but i mean these here in boxers you would think that some point he wants to plant so either he's entitled to have them you just got to do something with them or else he's going to get pants later on yeah he's going to be i think what the facts lead to the doctor was trying to get the pants away from him so the plausible good faith reason for exercising force on the inmate was to effectuate compliance with his order to get the pants away from him after he was able to get the pants away no other force was used he was never in office or when faced with an inmate that is refusing an order whether implicitly expressly or otherwise when they're faced with an order and they're refusing that corrections officer does not have to adopt a wait and see approach if a corrections officer is faced with someone that's denying her refusing to comply with an order he's justified in using force and that's why the sadistic i'm sorry the subjective element of an excessive use of forth claim requires an determination of whether or not the force was used for a plausible good faith reason the facts have no force used against him or to refuse an order he was faced with a corrections officer implicitly or otherwise that the procedure was to remove your clothing and get transported out and dressed out to go to a medical facility when he stopped complying with that order the reason that they were going through that procedure is to ascertain whether or not they have any contraband to get them transported out so a corrections officer faced with an inmate saying i want to be your supervisor is basically being asked to leave me alone with the contraband check you want me putting a little bit of spin on it but it's tell me why there is anything that says that he couldn't just grab the plants i mean he's either got of wonderous armor on top of his arm right isn't that his statement correct your honor  think it's not like he's you know hiding stuff in his crotch i mean that's what you usually get these kind kinds of cases the determinative issue in an excessive use of force place especially when considering the supreme court's precedent with whitley versus outburst it was the right plausible good faith reason for the officer to use that amount of force and there was a plausible good faith reason there's no subjective look into the officers eyes and see what he really thought is there is not a that the pleadings in other words when he pleads that he did it because he was getting right losing it all as opposed to he did it because that was the only way to get the pants i mean he's pled the one thing and it seems that it sounds more like a trial issue or at least if you get a summary judgment later on about plausible good faith if you have nothing from the officer you know we're not a state where the officer provides an affidavit or a deposition saying the only way i could get the pants was to grab his own well in the fastest way to show that there was a possible good faith basis for him to use that force and the case law is clear that an attempt to push someone into a closed door for example or almost break someone's glasses that amount of force has been helped him in this he tried to put his arm behind his back this isn't a did he have to use that force or wasn't the most reasonable thing the standard is wasn't used for a good faith possible basis them i believe that that is probably before the district court and i think given the review by the by judge economists he says that these are the facts as pleaded in the complaint and in the injections to the r and r i don't think that he actually specifically ever consider those exhibits him assessing the sufficiency of the complaint it's not clear and even for a pro se party i think it was incumbent upon inmate there at that point to say well here's what you said is wrong in my as you point out correctly so that we are putting states here and like in their brief posing counsel keeps putting backs and evidence or not there were limited to what gunther has said and that's the complaint as well as the objections to the report and recommendation court can deprivation here whole deprivation here and so that it's clearly made them in the nation in like i've mentioned before in terms of the excessive force claim he keeps talking about procedures and orders and things of that nature but that in posing council talks about how well he got the records and they start treating and this man is in prison he cannot go down the street to the doctor it should not be incumbent on him have to prove that he is sick before getting treatment as we saw when w case will be submitted