considerably the city has conceded that a new trial is required for mr williams claims of excessive force against officers fields and jones as june two thousand and eight beating the city concedes that the district court committed reversible get its view of the facts finding and mr williams failed to prove his claim because he was confrontational in his behavior towards the guards and that justified their use of force against him that same an alternative ground to affirm the district court contends that because mr williams did not present direct testimony direct evidence of injury that this district court at the court should be affirmed however mr sufficient for compensation for recovery under section one nine hundred eighty three can can we can we talk for just a moment about the the withholding of medical care claim  and so the question i've got to you is can it really be the case that if and take it out of this particular case if you need to enter the abstract that if it's clear on its face that a party has shown up to court without evidence that will be crucial to make it's going it is the position that you're advocating that the court has to take the tell it that person put on their obviously inadequate proof so that you can get to the end of the plaintiff's case and then have a rule fifty motion you can't address it at the at the start well respectfully hard to begin not frivolous if it's just without merit in the sense that you can't you've got you can't make your claims they're not frivolous but you can't you don't have proof can you not can the court not say you  don't have adequate proof i know you don't have adequate if you just told me you don't have a needed piece of proof well your honor specially under these circumstances mr williams didn't have notice that that was the position the city was going to take that morning he never had an opportunity to research the issue to of the equation to both sides in the adversarial proceeding and that opportunity was not afforded here mr williams didn't have notice let's let's remove it from the abstract a little bit and but but cock still hypothetically let's assume this is a case where expert testimony is necessary and the plaintiff comes in on the first day of trial and the court says well who's your expert going to be and look at the pretrial memorandum in this no expert and they say there's no dispute that an expert witness would be required wouldn't the court have the authority under those circumstances to dismiss that claim but there would have been a pretrial memorandum in place pretrial briefing on both side by side by well not necessarily the other side look at kind of the confines of you can't rule twelve rule fifty six rapidity would not get would not apply in the circumstances and you have some authority that of course the court has inherent authority to to proceed with its docket in a timely fashion right now i'm asking where there was absolutely crystal clear that you had to have an expert that they considered you had to have an expert and there was no expert available essentially you're saying that there's a missing element a claim the perfect preferred method would still be a rule fifty six motion given the other side notice an opportunity to respond even if it were no such authority would be harmless or on the hypothetical right because the same result would have followed at the end of the planes  honor but again these are not the facts before this court and in this in these circumstances one we're saying substantively the problem is that the district court was wrong in saying that you needed an expert witness on that for you to provide medical care  correct but even with the substance but something to bear aside i appreciate the hypothetical that you just gave but the rules of procedure are still in place for reasons to ensure fairness not too needy to both sides of the equation and that fairness would not be afforded to both sides under the can but your position is it has to have done it i guess i may ask it what's your authority for the position that this is obligated to follow through twelve emotional fifty six motion what's this what's the basis for saying they can't show up at trial and anything before trial they would do the plaintiff's case and they made the roof if the motion really saying that they wouldn't do that it would be a violation of due process well at that point under the rules and rule fifty procedures mr windsor had a chance to put on his case and then they could say that there was not enough evidence to support a jury's finding for mr williams and that would be appropriate that never happened here he was never given the opportunity to put on this case i'm puzzled by by the claim that there's a notice problem there if you can see that you can go through trial if you know what the evidence is going to be it seems to simply a matter of form to say you've got to go through the exercise of putting it on for a jury and then wolf it was but leaving that aside for the moment you you would you can see that the city has a policy with respect to prescription medication the city has the city has a policy called the access to care policy that speaks to prescription medication however mr williams or evidence that there was a separate policy on the ground practices in place by p h s he just disputed that that was a ph us policy instead of the city policy is your your evidence in that regard was his statement that somebody told me there's a policy well talk about not prescription medicine we're talking about prescription medicine right correct are ok so if we're talking about prescription medicine and there's an access to care policy that's on the books and the only thing that mr williams got to say in response to that is somebody told me there's a policy your position is that that creates a factual issue as to whether or not there's a policy from a no purposes yes your honor rule it's not it's not simply that medication she does we can look at her language right so i'm puzzled by your reference repeatedly to it when she's talking about there being a policy specific to not prescription medication that you're to get from the commissary how is what she says there are contrary to the city's assertion that as for prescription medication we have one policy one policy only and it's publicized it's called the access to care policy and that's that you are missing never identif anything to her affidavit so there's nothing from ph us in the record that establishes that the access to care policy is the policy in play and that there's a clear case law that you're looking at the actual practices on the ground if there right thanks mcquire if you if you have conceded and there are there are some hair on the case so to speak why why doesn't it make sense to send this thing back and let the district court take it from the top just go ahead and to the extent there were problems here or or questionable exercises of  disclosure power get it done why it why are we here on appeal because there are numerous defendants in this action and i and i believe that each of those each of those defendants are separate public employees and i'm a public employee and if i or soon to sit as a public employee and and i want to trial or her i won in the district court and it was up on appeal and and and there was a valid basis for reforms of that appeal i certainly wouldn't feel like well you know just because because part of the first alleged claim of excessive force why why why is it appropriate that the the judge determine as a matter of law that that claim did not merit submission to the jury  the first excessive force claim right well will we are not properly to this court to affirm on the same basis that the district court were arguing an alternative basis which is that at trial mr williams at the end of his case in chief when he had entered all  beat up can't the jury make a reasonable inference that that hurts i think the problem with with that inference argument is that it's a sort of circular argument if you're going to say that you can infer pain you're sort of you're sort of abyss aerating the idea that that have held that are have a specific requirement of injury and for example denial of medical treatment claims are stick with this one though now that i want a medical treat let's talk about this one because that's what we're talking about a guy gets punched kicked maced in the face and you're saying it's not enough for him to say i got punched kicked maced in the face he's also got to say and it hurt or he loses if i may just take the court's indulgence for one minute the reason i want to point to the denial of medical treatment cla is that the supreme court in a still specifically pointed out that there are two elements of a denial of medical treatment claim and one element is injury and so the court has been willing to state that in some constitutional planes injury is a specific element of that constitutional lane why do you need to correct them so that why can't you establish something circumstantially as you would and the element in any case under the sun so the circumstantial evidence of injury is that you've go williams that there was interest i think i think when we fall general tort like principles it's incumbent upon a plaintiff in proving their case to put forth direct evidence of of the elements of their claim and if an certain circumstances under which you might be able to infer injury or for example if mr williams if if the evidence was that mr williams had been shot or mr williams had been run over a car or were some extrude the extreme circumstance there stomping mace in the face doesn't do it well you know i actually want to point the court to the actual facts of this case in the april twenty sixth two thousand and eight incident the facts of this case particularly with her particularly with respect to officer hughes and i him and after non defendants pushed him to the ground and kicked him and stomped him so those actions are not at issue here that she quote joined in and kicked him and so there's there's basically three options there's  a ruler there's a punch by her and there's possible kicking when she's joining in with some other people although we don't really know how much because she's joining in with some nondefense we really have no idea kind of what's going on  you have enough to say that the jury had to be able to sort it out and not a judge thrown it out i think where we have no idea how hard she particularly again he is we have absolutely no evidence with clear early for the judge to guide that in the circus is for none of that ever happened because you're going on a completely different theory than the one the judges i do recognize that however i'll point out that when we made this argument on appeal appellant had an argument in response to make that argument and i will note that argument was never made in response in their reply brief it was never made when they stood up here on oral argument and i think that this is completely akin to this court's case law talking about the that if you it's sort of the waiver to the weaker argument with respect to fifty and fifty so obviously normally you have to you have to make a fifty eight you have to state your grounds for fifty eight with be thrown out because he did show he was injured no we did not so why isn't that a way for it what it it would have been waiver the plaintiff we have the waiver my family to point that out in the first instance they had an opportunity argument and assume we examined that on the on the record that we've got before us i take it that from what you said your your assertion is there's no jury question as to whether or not each of those individuals mus use or ms lackey by kicking them is use case by masing in his lack case did something from which a jury could infer injury that's got to be your position right on the facts of this case yes ok gotcha understood if i might just quickly move on to the case that claims against the city i think that there are clearly two grounds upon which those the dismissal of those claims can be affirmed i think the authority issue was pretty clearly established moving on to the expert witness i think was the district  ruling on that basis can be clearly if affirmed still makes clear that you have to establish that there is a serious medical need and deliberate indifference to that need and i want to be clear because i don't think my brief was entirely or hold up when you say what that with this record is clearly appropriate the argument from your opponent which i'd like you to me is that there are some kinds of injuries where you you've got to have medical evidence you know they denied me a medicine that i needed for developing a chronic injury you got to have a the expert for that everybody would but they didn't they wouldn't give me medicine for pain when they broke my nose does it take an expert to come in and say a broken nose really hurts so you should give somebody a broken nose pain medicine right for that i mean well isn't that a what's wrong with that argument that there are some kinds of injuries and some kinds of pain associated with obvious injuries that are so significant that you don't need an expert to come in and say that really hurts everybody knows that really hurts because i think if you might i think i think that just as a question is is what is a serious medical because the real question is not was it just it's not whether it was a serious injury and i think where i misspoke a little bit in my brief and where i want to clarify here on our argument is it's not the seriousness of the injury the injury happened and and you know inmates have a right even juries i mean inmates come into the system with with you know it's a he or i mean mr williams came into the system with a preexisting broken neck i mean there's all kinds of serious injuries the question is is what was the deprivation or the denial or the the the prison officials response in in response to that need and what they didn't do and the consequences of that and so i think the question is what was what was the consequences of their failure to provide that medication and i'll admit in sort of looking through all the case law and trying to figure out well what is a serious medical need case a little bit all over the place on this honestly but but looking at more recent case law looking at the substantial risk of serious damage to his future health so with this idea that it's not just like leaving pain it's not a temporary thing it's something that has a real lasting effect and so i think the question is did by not providing over the counter strength medication to mr williams did the prison did prison officials you know was there a possibility of a sort of future and lasting damage to him needed an expert to make the case for the plaintiff that rigor i think so i think you really needed to understand what if any damage what did what was there by him not having this pain medication was it you know ok was he possibly in pain for three or four five days which might we then she says he's referring to a policy that the city asked and the policy in the city as we now know as nothing to do with this case because if you look at two o two i just know convenience and doesn't even mention a restriction on one over the counter drops that you have to buy your own over the counter drugs and that's the prescription drugs at one ninety five one night you sets the city policy specifically says has to be something that is widespread so widespread is not the forms of wall ever produced any evidence about that the cost them only exist mr williams mind he has no evidence of it anywhere else at all the documents he relies on his grievances answers to the grievances isn't it interesting that not a single answer to the grievance or the appeal do do any of the state and city officials even mentioned the policy the jury can infer from the facts before it whether he suffered physical pain physical pain under cooper under pres or this court's dream destructions is compensable in addition have to talk to them though finder still missed that officer hughes participated in the kicking and that's enough for a jury to find that he suffered pain as a result of her actions i'm under giles this court found that forced use against an inmate after he's been subdued is where to it is that's exactly what happened here respect to her the argument of the city as to the lasting efforts versus pleading pain it's a non issue if the standard is whether the pain lasts for a long time then you're not going to be able to c compensate defend a plaintiff who suffers a traumatic injury and that's not the standard here mr williams suffered pain a jury's going to be able to understand that being hit in the face and thrown to pain medicine pain medication to prisoners at paragraph twenty nine play it was told by ph us the nurse on june twenty fourth two thousand and eight that is knows maybe broken however he was not treated instead he was told by pain pills from the commissary because  we don't have evidence how does that how does it make p h s while correct we don't have evidence that that was what happened we have an admission from this any acting health services administrator who say that she had firsthand knowledge of the policies  commissary i'm trying to get and i apologize if i ask clue what i'm trying to find out is if one assumes that people feel to do with the should have done for mr williams how does that establish that there was a policy or a cost them and not simply that there was a mistake and maybe a bad one in not treating him the way they should have how does it get you to liability under menow