thank you your honor may please the court christopher healy on behalf of mr walker this case can be decided narrowly by the black letter principle that factual disputes cannot be resolved on summary judgment this court should reverse the district court for three reasons first the district core resolve material factual disputes against mr walker which was not permitted to do on summary judgment second even those disputed facts of mr walker's favor and the officers used force that was clearly unlawful under no fewer than five of this court's decisions decided at the time of mr walker's arrest and third or any other issues in support of the district court's judgment have been op and raised by the officers and are therefore waived so you can ask you question and i think i agree with you about sort of the fundamental issue in the case you cite is i understand from your briefs two sources for the disputed facts document ten reference page five in document fifty eight reference page three and four  those are you know his responses to that to the officers account you agree i assume that one of the officers account of the sort of the fullness of the arrest that this that the excessive force claim would fail so this probably comes down to whether or not you have sort of frontally disputed the officers accounts the trouble on having is that even giving those sources the fairest possible reading i just don't really see that they dispute sort of hit on the officers account all they really describe is sort of what happened but they don't dispute the officers account at all of why like they never say basically just sort of is sort of an ellipsis those sources don't dispute the officer story they just sort of tell half the story they never say like oh i didn't do anything to warrant this treatment they just said you know like i tried to give the guy my license on the arm barred me or whatever do you see my point i do your honor and i think but i think that he does dispute those facts i have a point the court has which specific that this will be helpful for me and i'll just make notes as you go along which specific sources and statements do you point to that actually dispute the officers contentions that he resisted or engaged in provocative and violent god so first i would point to his summary judgment brief which is duck fifty eight three he says that he attempted to present officer poveda his identification at which time officer prevailed on the daily placed him in the hand restraints and then while he was in hand restraints officer pervade a grabbed his right wrist began bending it in an aggressive manner and broke his wrist right in that so i guess that this is the trick for me so the officers say that he said you know what the f do he became agitated it up to the fighting stance and he tried to wriggle out of the handcuffs and in sort of response or dispute of that walker says i attend i attempted to present my id at which time they put me in hand restraints but that doesn't really dispute does that their contention that he was provocative and violent just says maybe it means like while being provocative and violent i tried to give the guys my id well your honor  se so he drafted this by himself so under the liberal pleading standards preferred to say plaintiff season title to every reasonable inference in his favor and i think it is a reasonable inference to say when you read his statement that when he says he was placed in handcuffs immediately after attempting to provide his id that he's disputing that he gave the officers justification to restrain him but i don't rest just on that so if you look at page six  complaint that's doc ten this relates to the pepper spraying which occurred a little bit after the initial encounter with the officers so the district court and its analysis said that mr walker had resisted the officer's attempt to put him into the police cruiser once inside he began immediately kicking the rear door panel he broke a piece of the door and as a result he was pepper sprayed but what mr walker said is that he was placed in the back of the car and he says mr walker was sprayed with chemical agents by defendant roberts and beeman while he was in the back of the police cruiser all for asking why he was in police custody mr walker was kicked punched by all three of the the above named defendants flex cu were applied and he was hog tied so when he says that he was beaten up all for asking why he was being detained he's disputing that he was thrashing around and back in the car and giving the officers costa pepper spray him yes i mean i actually agree with you about that it is i've sort of counted them up it seems to me there are basically sort of five saw that episode here one is the initial arrest two is the bent wrist three is the first pepper spray four is the hog tie five is the second upper strike and i agree with you about the first pepper spray episode which is one that you're discussing there actually think that you also may have a leg to stand on on the second pepper spray episode because of you know sort of giving every benefit of every doubt to the statement you know all for asking why he was in police custody the other three episodes i just don't really see that there is any dispute as to the why of this happened why these things happened but as to the pepper spray i think that you you may be on to something and i guess then i think the question there is in an excessive force case haven't we said that this is an objective standard it's not it's not about sort of the officers motivations for doing something you know sort of he's kind of like shrinking their heads why why they did it all for asking why i was in police custody but is that really a dispute about sort of the objective realities of what was happening around him yeah i think it is wrong because i don't think what he's trying to do is suss out the officers motivations i think what he's doing is providing the core with the with his his testimony about what happened and he says i asked why i was detained and then i was pepper sprayed so you know whether  agree with you that the fourth amendment sander's an objective standard and it doesn't matter what was in the officers head but i think that the timing of that mr walker describes here suggests at least in his view and under the summary judgment standard you have to look at his view that he was pepper sprayed in response to for to ask in response to asking why he was being detained so what we received my time i want to speak a little bit about the qualified immunity question i mean i do think that the crux of this case is the procedural issue and once that's decided the qualified immunity issue is quite simple but you know if the court used the disputed facts in mr walker's favor as i think it should and as the district court should have done then the officers used force that was clearly unlawful under at least five of this court's decisions that were decided at the time of mr walker's arrest slicker versus johnson said it's unlawful to kick a suspect in the ribs and beat his head on the ground while he's handcuffed and not posing a threat leave versus ferraro unreasonable to slam a plaintiff's head against the trunk of her car after she was arrested handcuffed and posing a threat to the officers and no risk of flight and the common thread throughout all of these cases is that when one of the suspect is not resisting and is not posing a threat to the officers to anyone else doesn't pose a risk of flight the officers can't use any force much less the quite substantial force that was used against mr walker here and as you know as the facts as the court was b the facts mr walker contest that he dispute that he resisted he says that he didn't give the judge the officers any justification for their use of force against him and that is that that's sufficient to go to a jury i mean that's a credibility dispute between the officers account of his arrest and mr walker's account th where she talks she does her analysis of the officers of the of the use of force she repeatedly adopts the officers version of the disputed facts and one reason we know that is under the heading mr walker's response and summary judgment brief the district court didn't discuss his amended is verified amended complaint or is verified summary judgment brief it off i think of the district court had looked at that evidence and had still concluded that he had failed to raise a material factual dispute i think that would be allegations contained in their complaint in summary judgment motion were not considered by the court we would simply argue that in this case the trial judge in this case did state that the plaintiff can't rely solely on the complaint in the initial pleadings and needs to be some type of support there are some cases such as holyfield that state that conclusory allegations in and of themselves are not enough and a summary judgment motion can be appropriate when a pla f and that was in a prisoner case produces nothing more than naked allegations and this is a case where it is our belief that you're conceding then as i understand it that the judge was wrong when she said that a pro se prisoner cannot rely solely on the complaint and the other initial pleadings to contest a motion for summary judgment well i don't think the judge was entirely wrong there there does seem to be some cases that state that  summary judgment is appropriate when all that a plaintiff is relying on is the naked allegations within the complaint but that's not what we have in this case that he's also relying on his opposition to the motion for summary judgment credibility determination that has to be made by the fact finder it could be considered a credibility determination however the record evidence in this case based on the sheer number of affidavits filed by all four of the officers involved in the incident combined with the supervisor who reviewed everything he says something different than the other four officers but i thought the standard was that we have to consider the evidence in the light most favorable the best walker that is correct and he says he was grabbed by the throat for own the ground subjected the racial  question for the fact finder or the jury to decide whether or not the force that was used to restrain him was excessive he says i didn't resist arrest they said he did i think credibility determination for the fact finder why am i wrong about that well i don't think you're entirely wrong on the total sum of the evidence that i would be considered in this matter clear where does he say i didn't resist arrest this is sort of the substance of my question to your adversary and i think he got to the closest suggestion that he didn't resist arrest with respect to the pepper spray or he said that he sprayed quote all for asking why he was in police custody maybe that's good enough but is there a place in this record where more clearly he says i didn't resist arrest i wasn't violent i wasn't provocative he's indications that he really didn't do anything wrong he was asked why he was being detained why he was being arrested and flies in the face of all the other statements from all the officers that were involved on this are you do you agree that the implication of his filings is that the upshot is that he didn't do anything wrong do you agree with that tape from his perspective i would agree with that that this is a verified compliant and we have to have every i would simply and say again and i don't know where i can go with this but the general weight of everything that was considered by the way is probably not a term you want to use that this procedure this is a district court judge i can understand now that was more likely than not the jury's going to find for your clients the for the officers and against the the petitioner here i'm not saying that that's going to happen i'm just saying that they could it's easy to fall on th how are they going to believe the petitioner but are the plaintiffs in this instance so i just add that to me there is and i have to confer with my colleagues about just think you have material issues fact then and i just want to and are you just saying that there really is not one well i don't know if i want to can see that but having said that  is a difficult case from our perspective in terms of if the court is inclined to take plaintiff's allegations contained this complaint in summary judgment response in the light most favorable to him it puts us in a difficult position there's no question that being the case certainly would be a situation where the trial court certainly qualified immunity would not be ruled on at this point it would have to go thank you are on i only have a few quick points on rebuttal judge newsom i want to give you one more place where you specifically raises a factual dispute i mean i think it does so throughout but a very particular point so this is this is at the traffic stop or speech at the traffic light and route to the pinellas county jail he says that detective schmidt arrived and this is mr walker's summary judgment brief at page six detective schmidt arrived at the scene and attempted to speak with the plaintiff the plaintiff didn't wan talk to detective schmidt at which time detective schmidt grabbed plaintiff by the throat used a racial slur and choked him and that's he's denying that he gave any justification for use of force right there i think i think i want to i want to be very clear and setting out what we're relying on so we have the verify the verified amended complaint but the summary judgment brief is a separately verified document and what i would ask the court to do is when you look at his brief and particularly the factual background section just imagine it's a separate