themselves but it seems sort of similar to me as i think about this kind of like the form that was filled out for the intake when when mr for gala got into the pleasant valley state prison that day they had to take the messy real world facts and put them into these boxes you know one of four boxes on the form i think what the judge below was doing is kind of similar to that particular fitting the facts into the categories made three errors i think coming out the way they did on the hudson factors and also on the qualified immunity analysis i think it's an error to say that he's disappearing in order because of the timing if you view the facts in the light most reasonable to mr gallo what compatibility and he understood from both the and from the go between writer that different cell assignment was in the works and this is not in a reasonable understanding because it is actually the cell assignment that he that getting that same night that he thought was in the works so then when he at the end of the shift he encounters another you know representative of the brought directors here the institution that has to operate to different people count as another person the armand and he's telling him to go to sell one twenty eight just  cuff up and i'll take you to administrative segregation that's without his testimony so he says ok turns around puts his hands behind his back now the order as far as he understands it is that he is going to go to administrative segregation not to so want twenty eight and then under forgot his testimony he is then just shoved towards the cell so he wasn't actually given an order to go to so want twenty eight and his resistance is merely out of confusion this is not what i was order to do i thought i was going to add segue now i'm being pushed towards a cell he plants his feet because he is confused and i think if you call that an order and that shoving without explaining what you're doing  he starts pushing him and then after he starts pushing on me threatens and i think is that in order i think that's the question how is the threat to me you could call it a threat but isn't it also an order i think there's an issue of how much time he had after the threat but what the testimony is that he  you know has friends the body slam wallace his partner says that's not necessary and then immediately after he throws on the ground so i think if you follow forgot his testimony he didn't really have a chance to respond to to that you know he starts getting pushed his  on one level because he's heard different things about where he's going and then more immediately from mr de armand he's heard that i'm going to take you to add second i'm putting you here and then you know now he's threatened to beat him up i think you know the state makes a lot of  a reasonable officer would believe and i think a reasonable person being pushed by someone in contradiction to what they just told them would also be a little confused and might want to plant their feet and try to figure out what was happening so i don't i don't think you want to die on that hill his response was he was going to take him to administrative segregation and then immediately decided that that kind of use that as a ruse in a way to slam into the ground which i think is relevant it didn't actually accomplish anything he never actually ended up in cell want twenty eight slamming someone to the ground doesn't just sort of a matter of inference it's not pushing him towards the cell it doesn't really achieve anything other than just to cause different that's a different case than what forget his testimony is here he gave a clear order and then he gave instructions to do something else take him to administrate segregation and then just started shoving him towards the cell so i think that you know i think he's not trying to achieve a law objective i think that the standard is you can use reasonable force to try to achieve a lawful objective to bring an inmate to this it's not a lawful it's not a lawful objective to punish the inma by slamming the inmates face in the ground and i think what judge watch berthed been telling you for now nine minutes ok is you really ought to focus on that ok so i think that that issue may have actually been we may have driven that into the ground so what what what case law clearly established that what the armaan did in this situation violated the eighth amendment what case is clearly established well i think the a somewhat similar fact pattern but i think also the magistrate in the ruling refers to the california court of regulation section and i think that is also california code of regulations or nothing state law ok what federal law clearly established i think i was referring to the court regulations because that's what the magistrate for do but federal law i think cuts in the mcmillan guards same kind of fact pattern is here is there any evidence about what alternative kinds of force were available i mean this this leg thing that they did that took him down do we know that that's not considered a smaller level of force than other options in the range of options i think what they could have done i mean  they could i don't know your honor i don't have an exact answer for what less amount of force they could have used but i think because there's no testimony here right is there about like the range of options to us that if you are a christian guard in this situation where we can like rank them in terms of whether where this fits  hudson about like how severe the reaction was to the resistance we don't have like an expert on prison force of options here right right that's correct i think that all i can say about that is that that's right but i think the premise hear from you for the defendant circumstances was not excessive second officer of the arm and wasn't held to qualified immunity from his or forgot was claims and third the lower court correctly answered judgment on the state law claims based on his previous findings of law  as like counterpart here pointed out the standard on at the moment excessive force is the hudson factors specifically to german whether the force was applied in a good faith effort to maintain or restore discipline or to maliciously or maliciously inside a sickly for the very purpose of causing harm and to determine that so is slamming somebody's face in the ground a good faith effort to restore discipline your honor we first of all don't actually characterize the we dispute that characterization that he was la that's what he said that is what he has said you can't dispute that this pastor wright i mean we have to take his from his allegations is true don't we yes your honor we do have to take his factual allegations as true though why are you saying we dispute that it's mostly a  term slam versus whether he was taken to the ground your honor so i the officer says i'm going to slam your face to the ground and if he had left it at that than it's just an idle threat but then the officer tripped whose hands were handcuffed behind his back tripped him forward and isn't it couldn't a reasonable jury conclude that what the officer was actually trying to do at that point was to do exactly what he threatened to do which is to slam forgot was face into the ground yes your honor that is certain is true so then you lose and that the merits and then you have to retreat to qualified immunity is that right i disagree with that your honor i believe that the force that was actually used even if stated as the way mr forgot has stated it in his appeal could be considered to be reasonable as a matter of law specifically because the force employed here which is circumstances and the force that was used specifically in this particular instance mr officer de armin's partner did break mr forgot was fall his face was not actively slander the ground directly from the position that that your client was very much trying to slam his face in the ground right that made that maybe your honor however there's no civil action for attempted use of excessive force he wanted to slam his face knew the ground he didn't succeed because the attempting to restore harm he did it to to cause harm he didn't cause the exact harm that he promised and threatened to do which is to slam the face into the ground but he did cause a different harm which is he  injured his back your honor first i do not believe that there is any evidence on the record regarding the extent of mr forgot his injuries aside from mr ferrars concession that his injuries were minor also well he says that it hurt his back in that he's had ongoing back problems now you may contest the cause of that and say he already had about problem but if we again take his allegations is true don't we have to assume it hurt his back you're on the district court actually explicitly addressed mr ford i was claims that this incident hurt his back and disregarded them because he was not qualified to offer that testimony and to my knowledge mr guy was never challenge that finding and has therefore waived any ability to then argue that this injury was greater than i gets punched in the face and then i testify you know what my face really hurts in the cause of my my my discomfort was the punch i received do i get thrown out of court because i don't have a doctor come in and say that that was actually the cause of my of my discomfort certainly not your honor so why not the same for mr for go in this case your honor mr forgot what has stated fairly consistently that he had a preexisting back and vision and there's just no evidence that his claim that this exacerbated his back and dish and had any support now it's a difference between stating that my back hurts and my back hurts because i have a slipped disc in the l five s one vertebrae or something like that  one gets you through out of court and the other one is just how you're feeling at the time now specifically i'd like to look at the hudson factors as the district court considered them as as stated the extent of the injury suffered by the inmate is undisputed that these injuries were minor both by mr forgotten by the district court now the need for application for force has been disputed by mr forgot however his argument appears to be the no force was necessary whatsoever it's undisputed that mr not prison inmates do not get to pick and choose which orders they have to follow or when they get to go to their cell the only force that was used came immediately after mr gollop began physically resisting the officers and as they are trained to do they he was trying to i mean obviously according to plan he was trying to the opposite of trying to punish him for giving a hard time he didn't want to be messing around with this guy viewed him as you know just being being difficult for no good reason and he said you're going to do what i tell you i'm going to make you pay and you'll learn next time and i think we have some evidence terms of their interactions afterwards that you or your client i guess the next time we go all the way right i mean i just don't see how you could say that a reasonable jury could read the anything more than the force that was needed to bring him into compliance with orders well how do we know that i mean i asked your opponent this question about whether we have evidence about the range of options do you have evidence that says this is the minimum option that they had available your honor i would point to the case law both hudson and wilkins indicate that when officers are required to make split second decisions such as in this case they use the force that they're trained to use and they're allowed to use reasonable for to under the title fifteen for the california code of civil procedure a california code of regulations reasonable force to gain compliance with lawful order to affect custody or to overcome resistance and i believe all three of those situations apply in this case but how do we know that i mean maybe they had ten other options for getting him to move forward that would have had less force maybe they didn't but we don't know one way or the other right there's no we don't know what their options were in terms of getting him to comply beyond slamming his face into the ground hoping that he gets hurt i mean that seems like there hasn't been a lot of discussion of that but it seems like perhaps another piece of evidence that the jury could use to say that somehow this officer had a problem with mr forgot you know your honor that statement was made indicating that mr for go ahead not say that any reason why you could not go into that cell aside from the apparent reason that his new cellmate was black but the idea that if they had some conflict the way they should resolve it is they should fight with each other isn't he going to get hurt that way the fact is your are an inmate cannot there's no reason for an image to refuse a valid housing assignment unless there's actual threat to his safety and in this case mr for has not pointed to a single threat to his safety well didn't he say didn't say and again maybe he's lying maybe he's trying to tell the truth but is remembering things inaccurately but on summary judgment we have to take what he says as the gospel he says he went to the south talked to the cellmate and he suggested that the cellmate indicated that they were incompatible and self made was african american and forgot i was asian so why are you saying that it was for guy was a decision as opposed to the cellmates decision or her understanding your honor i do remember that being in the record and i agree with your characterization of those facts i don't know that it really matters one way or the other whether was for god or the going to be physical violence he says go fight him then i mean it sounds like he assumed there was going to be physical violence so it so the idea that it was like somehow irrational to think there might be physical violence is undermined by the allegations about what the arm and s right how do you get out of that problem well your honor mr for i would just as not been able to actually state and you any threat of physical violence that he actually was and was in fear of and he certainly did not say that in the record that he told officer during that he would had that fear well isn't that what it means to say we're incompatible isn't the whole idea of that that we may end up fighting and we're going to get hurt not to my understanding your honor but i'm not entirely familiar with  now as to the qualified immunity question that that was brought up earlier it is certainly true that the qualified immunity immunity analysis requires a high level of specificity to determine if the ri question was clearly established at the time and as your honor pointed out on questioning mr foote i was i pointed to a single case that would have put officers you aren't on notice this isn't a qualified immunity case this is a case where a jury needs to figure out who's telling the truth because if mr mcgowan is telling the truth i think it was clearly established long before this happened that an officer can't just deliberately slam someone's face in the ground for the purpose of punishing him right so it's not nothing to do with qualified immunity seems to me it's just a question of sorting out whose version of the facts is right if your version is right then there's no wait them out violation your client's fine if mr forgot was version is right i don't see how we would be able to say that the officer was  already restrained right certainly around i'm saying you have someone here who is handcuffed basically helpless and that the allegation is that he was his head was forced forward while his legs were flipped out from under him so that  head would make maximum contact with the ground there's no that's not good faith effort to gain compliance that's an effort to inflict punishment on somebody and that's what the and then it says you cannot do your are willing in me explicitly refuses to obey orders and in fact offers physical resistance there is no way of knowing what i mean is going to do obvious or d armand is not a mind reader he's not able to tell what mr forgot was going to do while yes all he managed to do before he was brought back into compliance was drag his feet there's no way that officer yarn could have known that and he could not have known and it was not clearly established that rated twisting his arm and raising up on his feet and bringing him to the ground would have violated his constitutional rights now simply citing hudson and and wilkens very very general excessive force cases does not put the right in question beyond debate as the supreme court has repeatedly cautioned this court that the right to must be to find a very high level of specificity here the district court specifically said officer john would not have been on notice that the law precluded him from employing a brief tempered measure of physical force in the face of inmates noncompliance with an escort that was preceded by the inmates noncompliance with orders there are no material disputes in fact is there anything in that sentence that's that's your version of the events if the plan is versions of a version of events or believe that it's not the way that's not the way it went down so that's why i'm saying to me this is this is nothing to do qualified immunity just need a jury to sort out who's right and you might have to go to trial to do your own are definitely point to the point to the judge to the just records statement of the facts which but the district court can't find the facts here right if there's if we're looking at the same record so weird overview we don't defer to the district finding of fact there was no trial here certainly your honor but i simply mean the recitation of facts that the district court considered which was generally by and large the players version of events except to the point where they were undisputed by defendant now i do see that i've run out of time so unless the court has any further questions for me i'm sorry ok thank you for your argument you have some time remaining for a bottle thank you just first i want to me correct one statement at the state just there that mr gao has made a concession that his injuries were minor and he hasn't made that concession i think it's clear from the briefing that he hasn't made that concession he has there's testimony the record about the short term pain and the long term pain that he suffered as a result of this tightness and pain in his back required him to squat most of the time making body the following day throbbing pain up and down his leg on wrist those kinds of things in the short term that in the long term he was designated as not as fit for duty immediately prior when he entered and then designated not fit for duty right after this he can't carry things over twenty five pounds if this were a mandate for a trial if the district court stuck to the idea that he couldn't use the back and back injury because of lack of medical testimony say we just are there other injuries that he could use to get nominal damages or something from this case yes he  testify specifically as to whether the physical therapy that he was ordered and the broken vertebrae that he alleged to have was a result of the injury there's like a causation problem but it sounds like he did have the hurt wrist and hurt bruises regardless of the back right the short term injuries rehab regardless of the back i think the long term back campaign i don't know what a expert can say about that he suffers pain or not it's his body you know i think he has that too i think this specific things that the record called out can infer his intent whether or not the government is intending to gain compliance with an order or intending to cause harm from his statements and we mention those i've seen the briefing but some of them came up in the response of questioning the take off on intent to just sort of cause harm and then i think also you know the statements in mr forgot his brief about what happened afterwards when he's trying to dissuade him to file anything suggesting he's going to go all the way next the next time or whatever the exact words were i think those things you could infer an attention to cause harm so i think also on your question about the other options that they had i think that's a question for the jury you know what could have also been done i  to be restrained obviously the big difference here is that he's voluntarily submitted to have his hands but tied behind his back so thank you also let me thank you on behalf of the court let me thank both of you for your willingness to take this case pro bono