tell of the new trial and on that issue there are four points that need to be addressed core issues one relates to the shackling of the plaintiffs in the appellant and the searches that were conducted and that relates also to improper punishment the second is the improper classification of new shorter that put her into the high observation housing unit the third is the denial of recreational opportunities in the fourth is the denial of showers will start with the searches your honor and is this court has long said in many cases there is a very strict scrutiny that's applied to body cavity and strip searches and in the kennedy case and in the way case and in other cases that the courts the movie or with the court has been careful to say for example in byrd in the absence of an expressed intent to punish a pretrial the detainee may nevertheless prevail by showing that the actions are not rationally related to a government legitimate non governmental purpose or that they appear excessive the court has consistently recognize that a body cavity search standing in and of itself is humiliating is frightening and i extremely invasive and the conditions that that must be examined relate to the scope that manner the location and the justification and that goes all the way back to the bell case and it's consistent with everything the ninth circuit has done in that regard it's important to see exactly what happened and going to in fact the pallies brief a properly no do you want me to continue with the process it doesn't stop with just the bra on the panties ok please finish then she asked for the bra so i gave her the bra then she said turn around pull down your underwear then do over open your vagina and cough so i turned around i pulled down my pants and i opened my inner thighs and coughed kit and i interrupt for a moment because it's it is clear these are invasive searches the record is clear about that there was a trial it's not as if there was a grant of summary judgment isn't a concern in part here that the instruction was insufficient to for the jury to understand that the deference to the state with respect to security concerns did not give the jury the the law that it's not unlimited isn't that the real problem here that's in it that that is a significant problem the deference that the jury was instructed to provide to the county was unwarranted and the jury could have at least been provided with an instruction that said you don't have to give deference if you find that there is no legitimate purpose but yet the jury was told to provide deference to these actions and that confuse them that was not proper for them to have before them but whether they had the added structure in or not the activity that we're talking about under no circumstance can be tolerated because this search was not just a visual search it point and i was not the lawyer trying the case at that point but when the motion for a new trial was prof there was no conceivable way that age jury could find the way that it found even with a deferen exception for an instruction for example not only did we have this invasive search on three occasions once when she's having as she testified in a heavy menstrual cycle the consequence for that was that she was chained to a post out of reach of the toilet out of reach of a bed out of reach from being able to lie down now that's beyond indecent it's sadistic that was her punishment for the executive decision that she didn't properly comply with the body cavity search as we know from the cases we just heard from from i know from are where there is it and where there l a county has changed that practice they have indeed they've changed the practice they now use a body scanner  and there was no reason given a trial the question was asked why did you change the policy answer i don't know but there certainly was a less invasive way to do this putting aside that there is no showing that the visual body cavity search had to have been conducted in the very first instance there was no no showing in that regard the decision that was made to put the  the h o age is also one that we challenge because there's the classification is improper putting a person in the h o h unit requires epperson undergo much more scrutiny much more attention much more detention and in this case the decision was made to put her in that unit not by a medical health professional a doctor a psychologist it was by a social worker the social worker took all of five minutes to make an assessment to recommend that ms shorter be put into the h o age and if you look at what the criteria was it was that the prisoner who was neat looked up from under her blanket said i don't want to have any mental health services and then the conclusion was that she was belligerent and not cooperative it's almost a catch twenty two situation who wouldn't  be somewhat not cooperative when you're asked these kinds of questions you say five minutes what they looked at all the records there was a substantial amount of material she considered and then miss shorter never objected to the classification well i think that she said she didn't want to be there and she was there there was you see it was confined for thirty two days and people were not listening to ms shorter as we can see with recreation time the the need for recreation time from the pierce and other cases is quite clear mission order had one hundred fifty minutes over thirty two days i believe it works out to something like five less than five minutes a day but there are two aspects this that are troubling number one she was not offered recreational opportunities what she was offered was the expense even was offered she could go sit in another room shackled to another table and watch television that's not exercise that's not being able to do things which you're supposed to do it on in that kind of situation moreover it's very clever both with this and with the issue of showers there's no testimony that she was ever offered the opportunity to get the showers or to have the recreational opportunities the testimony is that they she was never denied those opportunities but she was never offered those opportunities so with the recreational issue it was meaningless being shackled in a t v room with other people present that doesn't provide exercise but with both out in the shower there's no evidence in the record that this was offered to her they just said they didn't deny it and that's probably true maybe they didn't deny it but they didn't offer it wasn't provided to for in a meaningful way we can infer from the conduct of the county in intention to punish in this case we don't have to have them say that yes they absolutely had an intention to do it it is the only logical inference that can be drawn after all chaining somebody to in a position where they're in public view by the way  screening and they're sitting there half naked chained as i said beyond reach of the toilet facilities or even being able to lie down or the bag that's inhumane under any circumstance and that's why the motion for new trial should have been granted that's why the deference instruction should not have should have been given or an instruction that you don't need to find deference if you find that there was no legitimate purpose for this and that it was or that it was excessive one other question on your appeal of the summary judgment with respect to the medical treatment with regard to blood clots you brief that under jet do you have any comments with respect to whether castro should be extended in this context yes i would like to see castro extended because it's logical for all the policy reasons of castro as well as teams really they're very instructive and we don't have the subject address the deference issue in the jury instruction the nor word case is on point here and that this court actually held that it is error not to instruct the jury to give deference to concerns with respect to meals recreation and showers the norwood case is specific as to conditions of confinement and it says that the deference instruction must be given in regards to conditions of confinement in regards to meals there was no evidence that mission order was denied meals the evidence showed no you didn't answer my question i said whether that was whether the security concerns if any with respect the inmates were offered recreation however it can't be unlimited recreation mrs shorter was not housing the general population here any dispute that she only had one engine fifteen minutes and thirty two days and that was spent chained to a not she did receive i believe it was one or two days of recreation however it was her that was refusing to do the recreation she said that she did not want to sit at a table with the other  to change at the table but what about taking her outside your honor the evidence shows that she was offered recreation and she specifically referred to refused the recreation the same was sick but the record was under spirited recreation meant by definition for that unit being chained to a table that was and spewed it was in it here and i believe that there was also a basketball court that the inmates could be taking to from this unit yes i believe one of the  county witnesses testified to that fact and there was also group sessions i believe me shorter herself discussed that she could hear other inmates talking and she didn't want to be any part of it you would agree that discretion or deference even if an appropriate instruction is there is not unlimited i mean you are the plaintiff did not ask for any explanation of the difference if that was question you would agree that it is not unlimited correct yes i would agree to that and you would agree that that instruction was not given to the jury by the judge your i believe the appropriate instruction was given to the jury it was a model jury instruction and it was taken from a case that's not quite the same as this but the judge did not instruct the jury that the deference to be given was not unlimited that it had to be the jury had to find that it was reasonably related to append a logical interest a legitimate one the jury never knew that to take your i would have to look at the language of the exact instructions however i don't believe that issue was on appeal table the whole time yes in fact h u h detainees are always handcuffed when they're outside of their cell yes now a choice detainees don't go to the gym we don't have a gym they don't go to the outside rec correct so i'm i'm not sure what could have happened with basketball when you're chained to something the whole time but that doesn't make sense with that your honor unless there are any other questions will submit