mental illness and that during a psychosis the defendant gods burst into his cell without consulting the jail's medical or mental health personnel the godson tackled mr kitchen to the ground handcuffed and  pepper sprayed him and restraint him on the ground face down mr kitchen became unresponsive and died an autopsy the medical examiner determined that mr kitchen's death was caused by restraint is fixie and that the manner there are genuine issues of material fact precluding summary judgment on those claims i will then turn to the denial of medical care claims and explain that granting summary judgment on those claims was also improper unless the court has questions we will stand on a brief with respect to the municipal liability issues turning first to be excessive force claims a reasonable jury could conclude that the defendant gods maliciously and sadistically used force against mr emergency situation at least for to a reasonable car to go in and do something about it immediately well judge davis to the question of whether he was beating his head against the cell is a disputed issue of fact in the record there is the  davit of joseph daniels who testified that mr kitchen was in fact hitting the cell wall with his fish that is one of the inmates and not not his head but in any event there is even assuming it's true or that that he was hitting his head infer that the true reason the defendants entered mr kitchen cell was to retaliate against him for the showing of the middle finger in the defendant's brief they claim that this is impossible one cannot draw this inference because  gave the order to enter the cell wasn't present for the middle finger incident but on page fifty seven of his deposition which is on he admits that he did in fact see the middle finger being shown so that is bar he was still fresh in around him and very upset and wouldn't be calm down in that rhyme that's correct sure there is no dispute that mr kitchen was experiencing a mental crisis at the time that this  road that's correct your honor and that the evidence was that dr ahmed who was one of the jails of leading site staff was just down the hallway and about a minute away but the defendants did not contact him or did not seek any other mr kitchen who was obviously deeply disturbed and who they knew had had mental issues it was not merely that he was suicidal in fact the indications for him being placed on suicide watch is rambling incoherent statements he had about wanting to kill himself by flying five hundred miles an hour on a plane it was it was obvious to all that this was a deeply disturbed individual the inmate statement contained within this fact intensive record but that is of course not something that the court can decide on summary judgment that's something for the facts find to decide that those are the statements by the prisoners seem to be your best evidence at least as to what happened after he was restrained these prisoners are saying there were some were spraying some were stomping on him the problem i have with those though is it doesn't identify which officers and so at the end of the day if you were to get this case back to the truck court you need to get a jury instruction on each defendant how how can that those prisoners statements get you to liability on a particular defendant well those those prisoners haven't been deposed so we we don't know exactly you know whether they could make in court identifications of particular offices or not that would have to that would ultimately have to play out at trial but what's interesting about about this case is the medical examiner's findings cannot be squared with the defense account of the four state according to the defendants when they entered mr kitchen's cell his back was to them he turned around and then they tackled him to the ground using a neck controlled takedown they pepper sprayed him he he he kicked towards the guards they then and he was on his back he then they put then pepper sprayed him again and then he actually was compliant he rolled onto his stomach allowing them to to handcuff him and they claim that once they handcuffed him they immediately say still use of medical examiner also found areas of focus bruising on mr kitchen's back so those findings irreconcilable with the defendant's account that they merely handcuffed him and that was it those findings especially the bruising on the back  consistent with applying pressure after mr kitchen is handcuffed so a reasonable jury in evaluating that conflicting evidence could disbelieve the defendant's accounts and could hold them  liable either directly or on a bystander a liability theory to give an example of if mr kitchen had been shot by one of the defendant guards but all of them denied shooting him that would not mean that they were all entitled to summary judgment with  many of the defendants testified at deposition including defendant guzman that they did not in fact place to name his back and they did not exert any pressure on his neck which is again contrary to the medical examiner's physical findings and their accounts cannot be sing his fist against the cell it's undisputed that the head banging had stopped at the time they decided to enter the cell but it was in fact precipitated by the the middle finger incident there also genuine issues of material fact as to the force that was used created both by the inmate affidavits directly and also circumstantially and i submit powerful circumstantial evidence from the medical examiner in terms of those physical findings  you were able to create a fact of human to the hudson factors there's still the issue of qualified immunity the district judge in this case didn't reach the issue of qualified only we could as an alternative ground could amendment case where the touchstone is reasonable notice and different people could disagree on what is reasonable under specific facts the right of pretrial pretrial detainees to be free from malicious and sadistic of force as is clearly established so so long as there is a fact issue as to whether the defendant guards sadistically and maliciously used force against mr kitchen they are not entitled to qualified immunity because if the jury in fact reaches that factual conclusion then there is no basis for finding a finding of qualified immunity so we do not believe that qualified immunity provides any basis for them and so you if there are further questions regarding the excessive force claims i will turn to the denial of medical care claims it is in his saddle to run is that when a detention officer consciously disregards a detainee's serious medical or mental health nade that detention officer violates the constitution in this case the testimony was from defendant  kitchen we will get psych food they recognize that there was a mental crisis that he was experiencing they told him they would get psych and they admitted in the depositions they did absolutely nothing a reasonable jury hearing those facts about that game and paul about taking him to the now down to the nursery that that's true on a bit but our point about that is that they didn't even summon any medical or mental health staff to this so  even look at him outside the cell there was a food tray medication could have been dispensed through the food tray of the deed the whole purpose of involving medical and mental health personnel was to calm an inmate who experiencing a mental crisis that's why they that's why they're there in the jail not merely to write prescriptions but but to assist in the inmates health and safety and so there was this opportunity to summon medical care dr ahmed was less than a minute away a psychiatric nurse was in fact being cold for a neighboring inmate so there's no reason that she couldn't have evaluated mr kitchen and the short timeframe of seven to eight minutes is a function of the defendant's deciding to to enter mr kitchen so again it is undisputed that the head banging it at that point had ceased so we submit that a reasonable fact finder could conclude that by failing to contact the  jail's men medical or mental health personnel the defendants would deliberately indifferent to mr kitchen's medical needs to the question about the claim is there a fact issue about dallas county's policies concerning non emergen cell extraction of mentally ill detainees captain rose says that they are required sult for jeopardy herrera or whatever his title is testified that they can that they can do it without any sorry officer herrera's testimony that they don't have to do it and then captain ross saying they do in fact have to do it additionally their policy they train mental health transfer offices because they recognize that this is dealing with are experiencing mental crisis is a volatile situation and special training is necessary could have brought in someone they already had on staff whose deals with mentally ill people being transferred that's correct or any of the psychiatric staff  involved in these type of situations so we do submit that a fact finder based on that could find that the practice of performing i see my time as it just is the psychiatric staff the same group of people that were the nurse was attacked resent a case to court and also i'm going to address first the issue of the county liability first for excessive force i point out that even if you find that these officers did come to commit a constitutional violation there's nothing in the record that indicates that that was due to a county policy and i want to specify when to talk about a policy i'm not just talking about it's not enough to just to stop this a policy just violate section one hundred eighty three impose liability on section ninety three you've also got to stop this moving or moving forces the judge as you judge mentioned but also and most importantly you've got to show that they knew about the policy and that it had already caused constitutional violations that's so very well established it's got to establish a pattern caused just abominations before there's deliberate indifference there's no evidence of that related to excessive force likewise with the denial of medical care they list out for things policies that they say are unconstitutional i don't know how policy can be constitutional the way they phrased it but there's no evidence of a deliberate indifference in other words the way that they had conducted themselves regarding officers didn't follow the policy or his office or herrera correct and the policy is that you don't have to consult i believe it is conflict in the record but i believe it's more likely that it's discretionary rather than is not a written policy it's a the other people's lie bill to actually goes the other way if they violated the policy then those officers could be liable right or not they would have the money l for that but if that weren't they have a bearing on the officers themselves doesn't matter as far as the denial of medical care came apart it was captain rowe who made the decision to move him to the west north tower and it was only sergeant myers who made the decision not to consult psychiatric care before getting him out of his it because it was as you say fast moving but there'd been a call over the intercom about the situation so he was already aware of it and the record as to why they didn't bring in the special mental health people that could not an emergency at that time well that's the judgment call that sergeant myers gets to make when he's on the scene and he sees this man he said he saw him hit his head somebody else said it said he only saw as he used to say this hit the wall with his fist but  but we don't we didn't know that if there isn't any we just know that this man is hurting himself he's done it before and he's done it in the presence of vavasor's he's good and is suicidal he's  in other words he's on suicide precautions now they say wait wait don't do to see what he might have courtyard hunted himself in pain pit in his head against the wall and it was very apparent that he needed some kind of assistance earlier o banging was earlier in the morning i think but nick's the day before when you saw to the nurse was like at midnight he assaulted the nurse and then he was moved in the head banging continued what you have is this shift change o hears a call for help because there's a guy named etheridge who's trying to kill himself on the same floor so he goes back to address that and then he sees why he's doing that he sees kitchen banging his head against the wall  stop i'll get you help in a minute and i'll be back and that's when and kitchen gave him the finger then there's a time break because guzman leaves his for the record shows he leaves and goes over to take care of  and comes back and at that point it is sergeant myers who makes the decision this guy needs help we need to get him out when you need to get him out we need to get him out so that he can't medical personnel cannot go into the cell no matter who they are that's in the record would if there'd been any evidence of that that's just an assumption that he could have used magic words and i think that goes back to the officers they've been specially trained in how to handle these kind of extractions it was just a strategic response team and they took seven or eight minutes and all they did was say please sit down lie on the ground land the ground is it understand instructions i don't know this is theory that although the psychologist could have come in with magic words and fifty i think the autopsy puts it up much less but close to three hundred struggling in psychotic they still ask him to turn around he turns around and begins to attack them at that point they have already restrain themselves are waiting trying to talk to him and they tempered their response it's not until he responds that they respond when he resists that they respond that's when the use of force is appropriate and it's not excess heated moment but multiple additional sprays stomping on him and you know what this show not obviously we have to accept it is right now why doesn't that host handcuffing conduct and at least create a fact issue well that's a case decided in the brief where occurred the question is would the does that necessarily make excessive if they used two more than is necessary i mean not to more than they said they did not no evidence there's no evidence for us to say that's excessive or necessarily stop because the inmate doesn't stop resisting it he continues to resist in the city it is also an issue about stumbling by the officers in that course the question is is that excessive he doesn't play any role in his death because this is just the sculls by things that are outside of our control except for the mace that is he was laying on the stomach he was overweight morbidly obese it that i would also like to address one issue that you brought judge foster about the individuals because they're all up together there's ten of them i represent ten individual officers who have qualified immunity which means they shouldn't go to trial unless things are clearly that each one of them did something wrong you can't if this point we don't even know who who did who did wrong who did the stomp and who did the kick and we shouldn't be waiting now until trial time to find that out that should have already been established then they say well we could have taken depositions yes they could have been they should have because you can't set put these people to trial without them knowing what it is they do wrong discovery people who are all supposed to go to trial because plans you still haven't figured out who it was that did what is alleged to have occurred by the inmates and you can't just say it's by pass a lie building cars like you were there so you're responsible because you've got to show the some they knew malicious conduct it the question is whether it subjectively and reasonable under the circumstances would all public officials in their circumstance condemn what they did and that's the question and i think it but under that test  i just don't see how then that's not clearly established to be a violation but it's not a question that you can clearly establish reason we don't look at it in the generality that they talk about place talk about the right to not be used it's supposed to assess a force well established makes more than twice where you balik the law what if the question is what would tell the officers once the person is already subdued that you shouldn't kick them and repeatedly spray them after they're subdued that's the the if we take the light the facts the light most favorable plaintiff and we've been counseled on that by the supreme court recently about taking facts of law not most favorable to the supreme court has qualified immunity cases so would have reason would every officer what i'm giving you the fullest benefit that you're not after somebody has already said dude you're not supposed to keep kicking him and pepper spray you know i don't know the two affidavits and i'm not going to miss the two affidavits of the two inmates who say he was kicked out  this was a group of individuals who are some of them been there for decades jonathan bruce reed and i think these courts dealt with him before and buffalo chambers and so they probably know everybody in the jail that's a fair were most were temporary or had they been there a several of them been there long time but it was a protective administrative custody situation because they had post such a threat to the nurses where he had been previously located but now he's in the north tower where needed there something that i could give him and so it he was in the right place for what he needed he was on suicide precaution so it doesn't matter where he was placed because he's in a single cell with a paper drape that's where he's going to be no matter what and the services are just down the hall but he's near somebody else it's been a breakdown or whatever is this the sort of thing that the d o j has criticized the dallas county jail for how they're housing these mentally ill no no no no it's not mentally ill is that the other guy was trying to kill himself and we don't know why but you could pete but you agree that you all knew that the plaintiff here was mentally ill the deceit and he was  it had some mental issue yes there's no question and i don't know about the time and it's ok to put him in the north tower even if he's mentally ill because he's committed he's cut is he's been moved at the decision of captain wrote one of the defendants in this case because he will not let him stay on his board with because he's a threat to the nurses they can't help him so he needs to go over there to help we can be handled specially because he's committed this is salt and it wasn't just a simple assault it actually did physical injury to the nurse so it was something that was a legitimate movement by i'm not offended in this case the from the questions please the court we have two points for a bottle you're ana's first there was no explanation as to how the inmate affidavits and the medical examiner's findings don't create a genuine issue of material fact on the excessive force claims the fact of the matter is they do create a triable issue of fact that has to be resolved as to which defendants i mean you said earlier that well they can id people a trial going don't on this summary judgment record don't you have to have a factor she want to particular liability you have to have an underlying violation in the people who were the bystanders bystanders or how who who committed the underlying violation well your honor we the fact of the matter is we don't know because they all deny it we cite to a case the individual but they all denied that it happened to take an absurd example or more extreme example if one of the defendant such shot missed a kitchen and they all deny that there was any shooting that wouldn't mean they could all get out on summary judgment summary you couldn't in terms of the witnesses that were you allowed i can't recall judge all right as i stand today in terms of in terms of counsel's argument about the magic words a reasonable fact finder could conclude that contacting mental health personnel would have made a difference as we explain medication could have been dispensed to mr kitchen without going into his cell also the fact that dallas county has a team of mental health transfer offices  sense for them to maintain such a team if nothing anyone did matter and it's no different approach could have yielded a different result and assessing causation is again a classic function of the fact finder unless there a