acting maliciously when he attacked mr taylor with a host of pepper spray and this defendant first off was laughing at mr tester when he got in pain the defendant was repeatedly taunting mr tatar with a racial slur and moreover under the circumstances there was just no need whatsoever to use any kind of force understeer tetter he was an obviously sick man who was having trouble even standing up when he was pepper sprayed and was not offering any kind of resistance you never disobeyed an order nor did he ever refuse to obey an order nor did he ever threaten anyone your position is obviously his illness was well documented in that he had had it for many years and the prison medical department head issued him a written pass to sit or lie down whenever he felt unable to stand which been obvious to the defendant just from looking at the situation all those present could easily tell that taylor was in distress regardless of what the guard knew beforehand and moreover the guard in his affidavit claimed to know who m there's plenty of evidence that the defendant knew that mr tester was actually a very sick man who posed no threat and moreover that he was physically unable to  to carry out the order to to go back to his unit mr taylor was not somehow choosing to disobey that order he just simply couldn't carry it out and i submit that that's an important distinction because when an inmate choose not to obey an order they're offering some kind of resistance to authority there's maybe a reasonable supposition that this might lead to some further disorder or danger of some  kind but when a person physically can't do something they just physically can't do something they're not doing anything wrong they're not offering any kind of resistance they're not doing anything that is somehow going to lead to a fight or riot or anything like that he order if i were representing a client who had disobeyed an order i would argue to you that merely disobeying an order there's no categorical rule that any disobedience to an order whatsoever  automatically justifies use of force such as pepper spray to the face that you still have to look at whether there is actually any type of danger in the situation whether there's any actual need to use this type of force in order to get the prisoner to debate with them as to what they really need to do what he's been told i wouldn't say there's any force before i certainly don't think there's any kind of duty to debate with the prisoner about it being in order to know if a prisoner had disobeyed an order to show that he was in distress and was not intentionally deceived i wouldn't go so far as to say that's what this case comes down to but i do think it's a very important fact in my client's favor that there is less than your  to receive this medicine and there's a prison guard is now what is the what is the relation of this prison guard who is there is he there to monitor that why are there just enjoying the record indicates the prison guard standing at this gate it's not entirely clear what he was doing in there except for him with some other officers nearby that he should accept to accept flirting with some other officers nearby  so he's flirting with other officers in the prisoner is in line he has this disorder he's waiting for his medicine and then what how does this come up around us well he has to go through th gate to get his medicine and the defendant is at the gate and the defendant says you go in through the gate and mr tener attempts to explain in just a few words politely that he has the permission  superior officer lieutenant graham to go through the gate which he needs to do to get his urgently needed medication and all he says is i told him that lieutenant graham was calling him on the radio and then lieutenant  white people and in this instance it's a it's the guard using against this prisoner who then goes on to unnecessarily inflict pain on this prisoner and i think the reasonable inference of those circumstances is being you look at up and we're kapadia that's exactly what it means yes i haven't looked it up and we compete here but i'm sure i'm sure that's what you would find i think it's a well known derogatory term determination is whether the force that ultimately was use and there's been cases say that if mace pepper spray issues unnecessarily that is excessive force is the question whether the force that was used when it was in this circumstance we've had other cases in which of those things have come up some things like the fact that a little bit more egregious than what you're dealing with here but what makes that force that ultimately was used against him excessive or unreasonable under the circumstances what it has to be under absence of any need for force in this circumstance and additionally because of the the fact that the defendant laughed and taunted him with this with this racial slur that betrayed his  me my client categorically denies that in his affidavit the defendant initially didn't make any such allegation either in his initial two reports on the use of force subsequently in an affidavit prepared for this cane and it is the purpose of the cane he had this this illness which frequently made him feel dizzy and be unable to stand up he was issued the cane too to help him to cope with that he h your client indicate that he was not threatening at any time and this pepper spray was used against them and what happened as a result of the pepper spray as a result the pepper spray fell down and term the use of pepper spray exacerbated the symptoms of his asthma made him have to use much more medication more frequently to control it also damaged his senses of taste and smell and made him  wilcox this case is before us on an appeal from the district court ground of summary judgment is that correct yes sir what is what was a district court supposed to do in considering they have to put you out of the district court make it because of his physical condition of not getting his medication he stated that he was trying to get back to his unit was he not compliant at that time no sir why not he was asked twice told me i can come here and get my medicine go through the pale line and go to the unit that's what he was trying to do what you wanted the record demonstrates that you don't disobey a question officer what about he might get to the pill and before the others did he had done this in at least ten occasions what's different in this case where you wanted him in this case there were twenty to thirty unrestrained inmates some from the no just verbal state but in the light most favorable all you have is a verbal statement and what you are saying is that the use of pepper spray in that instance is just yes or you are because until he can make it to the don't let nestle and indicate until he physically can make it to the done isn't he he's got is came you can pointless see this is not something strapping strong guy and yet the response is not only the sergeant continued to to question about it but he uses that racial term because of which quite frankly laugh i'm quite offensive that is that is no better than if you'd use the n word against someone who was african crush does not assume that the threat there is no longer a threat let me actually that question i realize you can't just you just can't verify everything but the inmates but you got one here with a cane apparently appears from affidavit basically and he says he has this information from lieutenant does he have a radio or does he have some means to communicate to verify what you are i think what the court is doing there is second guessing sergeant johnson's only dealing with the fact he got time to call him names it's got time to do all these other stuff to him how long does it take to just pick just radiuses i've got this inmate here says he's supposed to be a lieutenant is that correct he was on notice that somebody at least that was his position whether it's true or not is you know subject verification my question is why not take that little radio he did have a radio on it and you are the record doesn't reflect one way  didn't even try to verify he just what you are and he had a dangerous situation and he had to clear him a terror from this line let me ask you this suppose for the sake of the argument that mr turner was incapable of going any further i mean suppose that here literally collapsed and then got sprayed what could he have done if he was  to medical suppose he was totally incapacitated would that make him non compliant if he was totally incapacitated yes he could move get control of him so he had to use chemical munitions and that control the situation and then he was able to handcuff a man has called him out of there you're making the same mistake the district judge made you're not considering the evidence and the like most favorable to the plaintiff i'm not saying the jury would have to believe it are conversing saying this isn't this is wrong that is a recipe for disaster in a prison that is a situation that must be resolved quickly straight who's not doing anything but lean against a wall going to do it so i get back that's a different type what you're using here is pepper spray and quote like the cases are pretty clear i mean even now a case of taylor versus lane a legal case in other cases in which it was use if i unnecessary force and when we focus on the evidence in a light most favorable what we have is a man with a cane who leans up against the wall and says i'm going to lean on this wall until i can get back and he get sprayed for it even if he said no i won't go back because lieutenant told me i can go through each time he's given a reasons just say no i'm disobeying you he's telling him there's someone over you who's given me authority to go through here and he's done it many times and and i don't know what to you know even under the circumstance of a prison inmate does what he's supposed to do and what he's told to do and he's done it many times not the first time he's coming through this gate he's done it many times and i don't know if he's ever worked before you may have come through insula tenet told me that god might have just let him through but this one chooses to call him racial names and bought away that can't help with the other inmates he tell me this is a confrontation between black inmates and white in eight and here it is god uses a racial word that's very offensive in this crowd how is that helping the know this maybe they show it but because he's been in there for while they know what he's doing they notice me and i know a situation he's got a cane and he's trying to get through and you've got is god who has already authority and you've got a racial situation that you just described that he uses a very inflammatory racial term against him and then as the man is leaning against the wall so i want to get back sprays prison you do what you're told and lieutenant johnson is charged with maintaining order and he has to clear the situation and in williams vs benjamin does it by using a racial epithet in front of this was it in front of the racial a minimal amount of spray your honor in a minimal amount of spray demonstrates a measured in tempered response not a wild angry response and that's what i'm citing to williams versus benjamin when they gassed inmates and they were confined in their cell and the if used unnecessarily isn't doesn't meet the standard but your honor that if you use unnecessarily you know using force to enforce shoulders and control an uncooperative that mean you lose but just means you don't get the benefit of it because affidavit establishing a light most favorable that doesn't present it a case that you when he does lose the call thought immunity defense and there's again there's no dispute that he repeatedly refused to base directives mattia this about whether or not he had exhausted his administrative rheumatiz the record reflects that he said that the head big was stops right the prison told him that quote genuine issue of material fact as to whether he had exhausted his administrative remedies and that in itself would preclude the granting of summary judgment your honor the reason i disagree with that is there is documented evidence in the record that he was he was not or what he says that the grievance officer told him that agree which had been completed you say that makes no difference what you're telling me yes so he has to follow grievance well suppose a grievance officer says you've done that fly the outside world just because you get bad advice doesn't mean you're skewes from following the procedures thank you thank you thank my opponent put a fair amount of emphasis on a policy that supposedly existed of separating inmates from the east and west yards and not let him be in the pillai at the same time i just want to point out that the record shows that inmates that the assertion that the that an inmate has to obey the order of the officer that standing in front of him and tell him to do something what sergeant johnson ordered mr taylor to do was first not to go through the gate and it is undisputed that he obeyed that order and he never went through the gate even sergeant johnson's affidavit does not claim that mr tatar went through the gate so mr taylor while being the order not to go through the gate made this brief attempts to  convince sergeant johnson to change his mind by pointing out to him truthfully politely and briefly that graham had said that he had permission to go through the gate and indeed with him graham said the same on the radio during this conversation and it's not really correct as my opponent suggested that mr taylor was ordered three times to go back to his unit only the third time did he say i can't do that because i'm sick  the defendants the defendant ordered him not to go through the gate and he didn't go through the gate and he repeated that order a couple times and then the defendant for the first time ordered him to go back to his unit and at that point m by saying i can't make it to the dorm i'm too sick and weak lean on this on this wall and all of discos that conversation extensively already of course i'd also point out that nothing anywhere in the record nothing in anybody's affidavit says that there was any actual disorder or conflict or threat from any of the other inmates in the vicinity one of the affidavits mentions that some of the in mates watching the situation were were laughing at were laughing at mr tatar were finding certain johnson behavior entertaining and a couple of the inmates quietly spoke monks themselves and you know and  disapproved of what was going on and one of them asked another guard to please intervene which the other guard declined to do so that's the totality of the evidence regarding what the other inmates were doing on the scene and there's nothing in there that suggests there was any kind of actual threat or disorder from