perhaps but you've got paragraph sixteen seventeen eighteen and twenty three in the complying that allege he's undergone surgery and has physical problems that they non the less forced his arms behind his back again or his repeated complaints of polling and this resulted in significant injuries to court rind don't we have to take that complaint in the most favorable light to the complaint and isn't that sufficient to allege an injury it's not broader and that's because there's no factual allegation of the injury in the complaint and this is something entirely within in significant injuries to court right there's there's no plea by mr choroid that he had swelling and bruising or any other sort of tangible injury and when it's something that's a matter of he knows whether he had an injury or not  i'll submit to your honor that we are to you don't take the infliction of intense pain is this amounts to an injury i mean people recover all kinds of money for pain and suffering the ruling this need line of cases which is  excessive force case claims there has to be a physical injury and that means some physical injury meaning more than pain it has divided angeline more than pain that's the big question why is not i think  injury so in other words why isn't pain a subset of physical injury that's sort of a metaphysical question as it is that's one of the wrestle with as well i think that there is physical pain and then there's a manifestation of the physical pain that that is objective lee observable and what the need line of cases says is that in these handcuffing cases which applies to the both it too tight handcuff g cases if you will and also all the dignity for my excuse me the two tie in business if they really are to try you're going to see some probably see some manifest manifestation of it there's going to be redness or maybe  rubbing or some kind of yeah they were too tight when you pull somebody shoulders back that have have just undergone rotator cuff surgery and i know that there may not be anything you can  see but certainly there may be injuries and a lot of pain i think the courts three cases in this area are the perfect example of that in the dixon in crooks case is there was a physical injury to my broken rib and me whether each of those is a motion to dismiss stage case or a summary or all summary judgment but isn't that just a very very significant distinction a motion to dismiss requires only don't think it's a significant distinction here because either way he has to allege factually allege a physical injury and he hasn't done any sort of dance around it and sitting here i mean this is outside the police but this encounter was on  tape and there was no physical injury here there's no suggestion of it for how many ways an officer elmore you win and summary judgment but that's not the stage that's before us and we are required you know so the factual allegations of i have rotator tough tough injuries i have undergone surgery they forced my hands behind my back they ignored my repeated complaints of pain and that resulted in sufficient injury aren't all of the preliminary statements factual allegations those are all factual allegations when so blistering they didn't say the significant injury included bruises to maurice and strain marks on my back or doctor's evaluations i'm i'm struggling with the fact that we're a notice pointing it doesn't take much to a injury that expressed itself and swelling yes he's in it would have been sufficient ok how about if he said and i suffered a physical injury no i think that would be a conclusion  not and so you're looking for some manifestation of that so people don't say oh the cuffs were too but there's no indication that it's there this guy's pleading that he said to them don't pull my hands behind and cuff me because i've got all this stuff in my shoulders going on and that's that's not a question of whether it was a little too tight or not so so the requirement that you show that there's a little redness on your  wrist or there's a little you know the swelling going on this appears that the this is not some crazy claim of pain because the cuffs were a little too tight this is somebody who actually said please don't cuff me behind my back because i'm suffering post surgery i think the russian oil is the same either way that we want to have some manifestation of a physical injury to allow this sort of claim to proceed because otherwise i mean womb we step back and we're asking whether it was clearly established to this officer beyond debate that when a suspect tells him that he has some sort of physical ailment to back or shoulder or whatever it is that he was required as a matter of constitutional law to coffman front rather than beyond well we're we're now back to the place where we'd look at what the officer showed up and arrested him for it it's the kind of thing where if somebody said i've got and threatened to shoot a dog with a gun so this was a violent offense if they have reason no gun on him at the time and there's no dog anywhere around there's no allegations of the complaint either way on that but the owners i think they are and seem to be th better problem here we are at the motion to dismiss stone age so what evidence do you have based on the motion to dismiss which means you're basing it on the complying that say that the person who called and complained about his alleged conduct was in fact and eye witness your honour's i think the allegation the point is that someone at the the the residence the travelers in call the the complaint say that the collar couldn't have been i mean isn't what we draw from the complaint that the collar couldn't have been a now witness because cartwright alleges that the reported of the hands never took place w deny that the a let out what is alleged to have been called in a now witness though the pleadings deny that occurred they do and don't we have to accept that what the his own denial that it is her so if i call my do call the police and report that my neighbor team out of his house and threaten to shoot my dog with a gun i hope that the police officer is going to show up and arrested and that's true even if these my neighbor says i didn't do it i wasn't anywhere near th time we're it's exactly what these allegations we are here are a bang out whether this compliant states klein that may go forward or whether you are at the position on this complaint to qualify attempted to tell defendant wolf that he was not in his room at the time but was visiting friends denied leaving his room with a gun and threatening to shoot any animal but that's right himself sang it and the suspects denial does not overcome the probable cause presumptively created by the neighbors complain that means that what you're saying is the law is that any crackpot neighbor can make up some allegation that you have threatened their dog with a gun and you will be arrested even though you say i don't have a gun the neighbor doesn't have a dog i wasn't there the officer still can't arrest you is what you're saying and of course we've got a cases that were of neighboring overnight that specifically identifies you when you can get arrested even though you have yes and once there are reasons that the that the officer was aware of apparent reason doubt the credibility of the complaint that he was mistaken and sadder and as you're saying there is basically a presumption in favor of the neighbor in the hypo that i dramatic yes and i come from the ayler decision in this school and there are other cases advised that he was unable to put his hands behind his back and doesn't say that he was actually injured ok well but that talks about the prior rotator cuff and then in paragraph eighteen he had repeated complaints of pain of course if you're going to have pain there's got to be a physical injury pain is that necessarily true to follow up on the question that i asked your opponent couldn't you have pain with out a physical injury i i don't i i would disagree with that when you have pain unless you're talking psychological pain you're going to have some type of physical injury and one of the things i think is interesting is that appellant seems to argue that you have to have to be actionable under the fourth amendment and this is a fourth amendment reasonable this characterization here that you have to have some type of physical swelling or bruising you  know i would argue in kind of using my own hypothetical judge moore if i if i was pulled over for a routine traffic stop for doing five over in the officer ordered me out of my car get out of my car he asked for my license i give him my license there's no other issues and all of a sudden he just sucker punches me as hard as he can in the gut i'm going to be in pain that within five minutes ten minutes i may recover i may not even go to the doctor for that how that's  that is exactly is i'll accept your hypo it is good too it is violence but is it a physical injury if you're const in the stomach absolutely because it's going to hurt even if i  physical injury that your point is that hurting it's a physical is a manifestation of a physical injury of course it could be that you're embarrassed at the way you're being treated like suppose handcuffing you could be embarrassed to be handcuffed in front of other people who are driving by and so it could cause you psychic pain i suppose arguably that's possible but i think looking at alleged firstly grabbed his arms and pulled them behind his back that's not going to be psychological pain that's going to be physical in also it's alleged paragraph twenty injuries and damages and twenty six that the actions proximately resulted in significant injuries to plaintiff and that's in their count one the excessive force you know one of the things that  colleagues noted was well should have filed a motion to amend while the district court agreed with us that our complaint was it was adequate i couldn't move to amend and i think that's really you know the guys in the face of form over substance as if the court wanted me to i guess i could change two words and say after this incident he went to the doctor which he did he complained of shoulder injuries which he did and he had rotator cuff surgery on the left shoulder but again is that really necessary at a twelve b six knowing you're faced with a motion to dismiss wouldn't it be prudent to amend your complaint to include more specific allegations especially given this case which says there has to be an allegation of physical injury well first of all they they appealed right away so that you know before the district court grants or denies the most and to dismiss wouldn't it be prudent when facing the motion to  then to cure any i don't think so because i think given the procedural history of this case they're going to appeal it so even if we put that i think they would have appealed it on another basis as the court is aware the docket in this case they peeled on multiple issues so in this case with these appellants i don't think that would have mattered and quite frankly it's not required by the case there is an allegation of injury even if it doesn't say in black and white there was a rotator cuff injury twelve b six cases what is a reasonable inference not what is an extraordinary inference a reasonable inference in this case was that there was pain and i would i would request that the district court's decision be or has nothing further i'm thank you th clearly established in the exact opposite direction of that that an officer uses excessive force when he uses a degree of force to tough a suspect that does not result in physical injury i think it's telling on the question of whether he's we should have amended because doesn't that place an attorney really between a rock and a hard place somebody comes with a motion to dismiss you have got to me and the motion to dismiss and the way you do that is by saying my complaint is absolutely adequate and here's why i know that our court on occasion has said if you say that in your response and then at the end you say but if the court doesn't consider it adequate let and then our courts say it's no good you didn't foul the motion and the motion should have said i need to amend my complaint and here is why so you're saying to point of scandal either you go and tell the court your complaint is not good enough and us the court to let you and me and or you respond in defend what's funny it seems to me that that's that's a pretty tough position to use as the reason why you ought to dismiss because you didn't actually filed a motion to me i understand that completely your honor but i think what it highlights is we don't need to beat around the bush here and guess whether if this went back down he could allege a physical injury i think we've heard today that what he's alleging is pain and i think i heard that he said that he had rotator cuff surgery afterwards i know i think that was before he saying that before the incident that he had had rotat cuff surgery we did not hear that after the coughing that he suffered a physical injury so the need line of cases directly rejects the idea that pain is sufficient to see the claim here you had there has to be a physical manifestation of an injury is need say that paying an allegation of pain is not enough or does need to say there must be an allegation of physical injury there has to be an allegation of physical injury which means a manifestation of pain pain is not good enough it does say need does say pain is not good yes nor is an allegation of significant injury though i think that there has to struggling with with why the preliminary factual allegations don't define and under our standard require us to infer because those elevated those are president that in the kayla case where the suspect alleged that he had a problem with his back and again is a summary judgment or a motion to dismiss summary judgment i'll say and that's my problem but you still have to action there you know and understand your argument is there's not a case here and i'm going to win and you might be absolutely right but you have clearly stars but the concern is is that we need to honor pleading standards and when you take summary judgment motions that are based upon entire discovery in the litigation and you impose that standard on pleadings you have affectively slammed the door to the courts without allowing the discovery upon which the summary judgment motion is in fact premised what would need says is that without an allegation of physical injury the claim is insufficient as a matter of law but it can be looking at me now and i don't see where there was an allegation of pain in the way and the sixth circuit says pain is not enough that was the point of all of these handcuffin cases was everybody said as i told i said the cops were too tight and i asked the part of the officer to take them off because it hurt you know too tight means they're too tight because it's hurting me and the need that line of cases says dixon court said it right it is quote clearly established that arrestees have a right to be free from being handcuffed in a manner that causes on necessary injury but it's the injury part that's sit here and that's why we submit that the officers are there is apparent graham excessive force case what the need cases say is that we have a special subset of excessive force cases for and often claims and in handcuffing claims a requirement is a physical injury and that has to be pleaded in the comply which it was not here but i do think it sort of highlights why this is a deceptively important case even though that these are bare bones for knox bare bones allegations if officers are qualified immunity here at the pleading stage defacto rule that's created is that any time so a suspect claims a in a moment to a back or shoulder the officer is absolutely going after honor that request every time and often from and there are good reasons not going to have to somebody in the front who the officer reasonably conclude poses a risk of danger but what we have in the law is i'm submitting the law is the officer is permitted to use discretion when  reason i raise it is the law permits the officer to sort of make those reasons judgments if we don't require a physical injury then insubstantial claims like this are not going to be weeded out at the early stages and we're going to have you know seventy five thousand dollars damages claims officer sitting for depositions you know and officers are required to cough in front on request by any substance any suspect so that's why i think this is sort of a