may please the court we are here today and review of an opinion in order by the united states district court for the western district of wisconsin denying the defendants motion for summary judgment based on qualified immunity the qualified immunity question here is first whether a correctional officer violates the eighth amendment when she refused to abide by an inmate's request to stop standing behind him in a prison common area because it triggers post traumatic stress disorder and secondly even if the conduct does violate the eighth amendment if such a violation was clearly established in two thousand and fourteen and two thousand and fifteen when these incidents allegedly took place  under pearson says we can either address both questions or skip right to the clearly established evaluation of the issue i'm going to start with that here as well it's the plaintiff burden to defeat qualified immunity once it's asserted they can do so by asserting controlling authority that has placed the constitutional question beyond debate and i submit that was not done in this case by mr or mr lies or refers to cases as well as a district court referred to cases where there was some conduct on behalf of prison guards and prison officials that violated contemporary standards of decency it was want to end the wanton infliction of pain it was extreme and we know from the hudson the mcmillan case that that conduct does have to be extreme when we're talking about an eighth  or you can think about one of the classic incidents of torture that is subjecting somebody to rock music or the ending we're showing reruns of space nine hundred ninety nine or some other horrible t v show it's not extreme but it could nonetheless be torture and we're take another example swinging a baseball bat is part of the national pastime you wouldn't call that extreme conduct but if you know that someone's head is in the way that conduct could also be described as murder so why do we look and ask whether something in the abstract is extreme we have to look at the supreme court's instruction your honor and hudson the mcmillian that says not every record as we have it the officer knew that it would have a very bad effect on the prisoner that there can't be any liability and that's equivalent to saying swinging a baseball bat isn't extreme so even though i knew the prisoner said was in the way there can't be any liability and that can't possibly be right your honor i disagree with that classification of the facts here first sergeant cloth did not know officer knew what effect his conduct had that may be wrong but i claim may be entirely fantastic on the plaintiff's part but we have to assume that he knew it and that had a very serious  effect on that's why you're driven to argue that unless the conduct was extreme there can be liability but you don't have any response to the baseball bat hypothetical the district court did not find that there would be serious harm as a result of  evidence was not presented in summary judgment your honor and the put up or shut up stage of the litigation the evidence that was put in and what the district court acknowledged was that mr lies are suffering symptoms that were i can to someone who is hot tempered that he would get fidgety get sweaty and retreat back to his cell which he was always able to do the district court found that there was no substantial risk that lies or would suffer sweating darting eye movements yelling walking away and that that wasn't serious harm but you you are aware of the supreme court's holding and i think it's hard coaching against mcmillan that serious himself we have to take hudson as the law to correct and i think cases like dhobi v l annoy versus department of corrections looked at that and found even though first of all it acknowledged that the line between mere harassment and harassment that was cruel or unusual punishment on the eighth amendment is a fuzzy line that's exactly what we talk about when we talk about the application of qualified immunity where is the consensus of the law where that line should be drawn the case is presented by the district court and by the plaintiffs here don't make that line any less fuzzy there's there's a line of cases talking about strip searches or sexually derogatory comments  gestures clearly those could give rise to an eighth amendment claim based on psychological harm we don't have that here we have conduct that the district court acknowledged was a jack of lee an i q us we don't have it's a transitional unit and there are inmates that have there's a variety of inmates there i know that we have to assume that fact because that's what he proposed in the record but it actually is a transitional unit for inmates coming out of a segregated confinement and also according to the record and the facts in light of mr lies are he did request that a combination of other officers who then accommodated him but again the way this case is different from the cases that we have humiliating sexually like strip searches guards making fun of inmates actually making them a pariah for their fellow inmates suggesting that they be attacked these are the sort of extreme situations where that fuzzy line has been they involve cases that aren't i can to this types of conditions of confinement case either there are deliberate and difference case where you do have to show a serious medical need or there are cases officers didn't help him with that and then allow him a chance to clean up and laugh at him while he well well this happened when i think if i got it right all right we're going to take the is not extreme enough to constitute cruel and unusual punishment it's not like those cases where like burton where the guard pointed a gun at him and made him tax the trigger and threaten his life or in irving where he threatened to kill him repeatedly and put a bounty out on the inmates and encourage other inmates to attack him and even gave another prisoner a razor to attack and those are the kinds of conduct that can give rise to that eighth amendment claim where there is psychological harm but no serious psychological injury and i think that's the i'm certainly that that kind of harassment was harmful to the african americans inmates there it wasn't extreme enough though the constitute anything minute violation and certainly there is a case law that would put a reasonable fishel i notice that that conduct violated the constitution it's not the record before this court now my client who represented himself pro se in the court below is a wanted inmate as a result of a brutal childhood attack in which two men approached him from behind knocked him out beat and raped him and left him in a park now as an adult he suffers from traumatic stress when he's been confronted with circumstances that sort of parallel this trauma when people stand behind him he experiences p t s d attacks mr laser submitted competent at miscible evidence not only from himself but three other inmates who observed these attacks and also his medical records they explained that when he experiences this type of trauma he relives the event by visual p t s d flashbacks and he also engages in self harm by banging his head against the wall now the court below held that lies are supported his claim that clot exploited this particular boner ability by repeatedly engaging in precisely the type of soon for purposes of appeal that cloth knew of the allies or so condition that she knew her behavior was triggering to speak these p t s d attacks and that she continued to do it anyway and in fact cloth went beyond just this type of conduct in response to the pleas for her to stop she would laugh at lies or when he asked her to cease this type of activity she was smirked at him tell him she could do whatever she wanted and that he would just have to learn to deal with it and this type of course a kind of occurred for the course of approximately two years now eventually if i could raise what concerns me about your theory of the case  here we have a pretty extensive body of law about the division of labor between different groups of correctional staff and we say that correctional staff like sergeant cloth cannot disregard instructions and prescriptions or interfere with medical treatment or instructions from medical staff but as i understand it your theory here is that the defendant guard was required to comply with the prisoner's requests as corroborated by other inmates there and well treated him well your honor in this case we're looking at something a little different here the seven circuit has it has clearly established that in response to an inmate's claims that their rights are that they're in some sort of a precarious harmful painful situation they can't simply do nothing so it's not that i understand that and you have to be able to get an inmate you're obliged to get an inmate who needs it to medical care but there also are concerns you know prison context about power and you in terms of their record because clot in her affidavit does not acknowledge any knowledge that he's being seen by medical providers at all so the notion that she's relying on this competent care being provided by the staff the no medical staff are telling her she has to accommodate situation and another kind of example that comes up a lot more often one prisoner tells a guard i've got a back problem i and the circumstances around or so the cases that we've cited in our brief stand for the proposition that says that guards cannot literally ignore it is in so far as they are responsible for their own conduct they cannot ignore the pleas of an inmate  who is claiming a constitutional violation in green on vs daily even even these type of non non medical defendants can't simply do nothing in response to an inmate's plea that they're that they're somehow being harmed here that there was enough in the record that the district judge properly found that that whatever whatever she did here it just it wasn't enough whatever she did it was was not enough and that lazar had supported his claim that honor that that as as you pointed out our as judge hamilton pointed out these cases are very highly context dependent and a reaction to a claim of harm such as laughing smirking you know the flippin i can do whatever i avoid these types of interactions injury and then being subject to hazards that are merely threatened on the other hand i'd also like to address the state's argument that clarke had this purported justification for her conduct namely the need to circulate around the day room i just want to be very clear that it is not weezer's contention that security measures are of the utmost important in the prison context that this type of just general blanket reliance to security measures has not been enough in these types of harat intentional harassment cases for example in calhoun the court explicitly acknowledge that strip searches have their legitimate place in hudson versus palmer intentional harassment of even the most hardened of criminals cannot be tolerated in a civilized society and that's exactly what the record show it happened here  briefly when justice got or asked what was the clearly established law that would put a reasonable person or reasonable officer a notice of this kind of violated the constitution the first case was that came out was hudson the palmer and clearly that that cannot give rise to a clearly established violation here in the psychological harm case palmer was a fourth amendment case involving a search of a cell and the court said in passing that calculated harassment unrelated to prison needs can violate the eighth amendment that's exactly the kind of generalization that the supreme court has rejected in the qualified immunity analysis it has to be more particular to the the facts in a case you don't need a case on point but it certainly has to be particular enough the contours of that right have to be sufficiently defined we don't have that here we have strip search case we have cases which actually humiliate and degrade inmates but we don't have cases where guards are standing behind an inmate or doing other objectively and knock us types of conduct that they do all the time in a prison situation that causes some harm but not a significant risk of serious psychological harm to an end mate so with that i would ask that the court