may please the court when you're honest this case involves a prisoner who is taken to the clinic because he was appearing severely ill and before they took him officers sprayed him twice with chemical agents th lifted him onto a gurney and transported into the gurney i mean to the planning the doctor looked at him briefly at the clinic and then sent him back to his cell without doing any tests without ordering any treatment and then disputed facts show that the doctor even went back to the cell at the insistence of the nurse who said dr there's something really wrong with this patient he seemed very sick these come down and look at him one more time the doctor just looked at him through the door in the cell didn't do any kind of hands on examination or communicate with him or order any kind of treatment or any follow up at all and just left and the doctor order a testing of his clothing to see if there was an infection to the soiled clothing well even that is a disputed fact the doctor says that there was a test of that but there's no record of the test having occurred and we don't need to believe everything that the doctor wrote in his report because some of it seems to thoroughly contradict what actually happened in that cynic according to the video and apart from that that test had nothing to medical issue you're correct you're on a kidney was the main medical issue and fecal test had nothing to do with your neary issue of any kind and there was no testing of anything related to kidneys and so i think if a core issue here is the evidence that the doctor actually drew the inference that the patient had a kidney problem in that moment and acute kidney problem and the doctor testif it is on deposition to knowledge of the patient's history including the bladder failure which leads to backed up plumbing which that's his own words which can cause recurring infections and that the patient is constantly at risk of infection and there was a test that had occurred about a week earlier for a your your analysis test that the defendants mentioned please as evidence that the doctor could infer that the condition was not acute at that time but the doctor himself testified that the patient always at his current state had a low level infection and it was just waxing and waning and that that your analysis really meant nothing day to day whether it was positive or negative that he knew that the patient was constantly at risk of a major infection and going into this death spiral of infection building on dimension and just sort of feedback cycles of organ failure and infection and each of them making the other more likely and so in those circumstances to on petzold which said that the amount of risk that the doctor or medical providers imputed to understand at the time he or she sees patients is based on the symptoms known to that person at that time and so that case presented a good balancing of or where to draw the line because one defendant a nurse common explanation of that would be ankle sprain and even though it might have been negligence not to examine the ankle or ask more we can only infer that the nurse knew what she would know from what she had observed on the other hand there was another defendant who was not even a medical worker at all but he had actually seen the swollen ankle and the court said ok well he knew of pain you know of limping and he knew of major swelling and so that's enough that a reasonable  shoes would understand that there was a risk of hankel fracture and so he should've he was he would be deliberately indifferent for not doing more except he the plaintiff failed to prove a different element against him so i think the same analysis applies here that the doctor was aware of a long history he was aware and that's not history into did kidney failure is included bladder failure in recurring infections and the risk that those infections could become deadly and then the patient was brought in for kidney pain he was obviously in very poor health he had suffered extremely rapid weight loss  the doctor had never seen a patient brought in after being pepper sprayed like this so he was aware the patient was behaving strangely and he was aware that i was a well the pepper spray the patient wasn't complying with instructions to get up and come to the door and put his hands up against the slot for restraints  and there i mean then we go into an analysis of whether excessive force was used by the officers who pepper sprayed but i just want to touch on the fact that the doctor knew that these were extraordinary circumstances from just the fact that the patient was brought in after body your client was resisting the care and that's why the pepper spray was used to well that's a he was not resisting he just wasn't moving he wasn't responding officers were ordering him to get up and he would say ok all comply all comply but then he just continued to lie there and so the question there is really hasn't delivered him difference when it sounds like the guards are using this phrase essentially to try to get him to care that he's essentially not cooperating well there the question is whether the totality of the circumstances known to the believe so your honor i think that would be a defense that the guards would use but the facts and the inference is that can be drawn from those facts are very disputed here and our position is that a jury could infer that they knew that the threat that he would present a danger if they didn't pepper spray him with so low that the balancing of the need for force against the risk of harm from using force weighed against using pepper spray or knowledge and it sounds like that he was not cooperating he was told you know it's time for your care and he he was not comply what what what what would have been an appropriate reaction well what they ultimately did which was just to go in then into the floor make sure he did wasn't a threat to anyone and handcuff him and lift him onto a gurney and take him to the clinic and so ultimately if they had if they could reasonably tell that he was unable to comply and that's our position they could they could see that he was lying there naked extremely a mason you know they could smell according to inmate accounts the urine and feces that he was lying in incontinent on the floor they could see that one of the guards said that he knocked on the window and tried to communicate with the prisoner and couldn't even tell if the prisoner was aware that he was trying to talk to him so that and we can also infer what they could see based on what people reported like a mental health worker just an hour earlier and what we can see after he's brought out of the cell from the video recording which is that he was extremely debilitated  the court ultimately or a jury weighing various factors and so it's a it's not a matter of it's easily resolved by summary judgment how much weight to give to the fact  officers could tell that he was a very diminished threat because he couldn't respond how much weight to give to the fact that their own policies that when a prisoner is unable to cooperate ever spray should not be used and and how much weight to give to the fact that they did nothing to temper the severity of the force by you contaminating him after they sprayed him with pepper spray and there were two opportunities to decontaminate him one would be before taking him to the clinic and claims x girth i'm explaining that typically that is part of preparing a person for the clinic to make it so that they're more able to speak and open their eyes and communicate with the doctor it's to clean them up at least at least why their faces and hear that the prisoner was on a gurney strapped down he couldn't even wipe the chemical agents off its face but then after the clinic he was brought back to an empty cell and left there naked there was not a towel not paper towel not anything no bedding in the cell no way to see him self and again by this time they had interacted with him more if they could tell that he really was unable to even raise him soft off the floor to get to the sink to run some water he had no way to decontaminate himself so  there they completely failed to temper the severity of the force by just leaving him just motion like incapacitated on the floor with pepper spray you know all over his because it also meant that he was removed from anything he could use to to clean himself and he was also away from his inhaler which was part of his you know  medical supplies for his to manage his asthma and that was very easy to see that he was in a bare empty cell and he went what is i'm confused about whether he had asthma or not what the record shows was in there a nurse or someone who said he didn't have asthma and then there's arguments he he did and they know about that what's what evidence should we look to well there is evidence both ways about whether he had or did not have asthma but ultimately there's other evidence that he did which should be i guess the key is that they knew it as and what evidence can you point us to that they knew the guards or the doctor knew he had as well the nurse testified that they knew that they had  available to them and the reason she didn't specifically tell them was because they already knew that he had that that's the strongest that there is in the medical record there is a nurse practitioners order saying it says asthma so there's evidence that this list existed the nurses that she didn't our guards he had asthma because she didn't need to tell them because they already knew i think in terms of both  s the excessive force i just want to emphasize finally that it's the factors weighing against using pepper spray chemical agents became even more extreme after the st use of pepper spray because at that point they had already tried they had sprayed the guy he didn't he still didn't move he still didn't do anything and so all the factors weighing against  doubled because they could see that it didn't get a response it didn't increase their safety in any way and they used it again and then finally they went in and  just used hands on restraints which the plaintiff's expert has explained were you know the common recourse that prison guards always know they have available when their perspective is not the best course of action and so from the beginning they they they knew that they shouldn't use pepper spray on an incapacitated inmate and that just you know that added up to excessive force given just the waiting of all of the circumstances known to the officers at that time i think that's all i have time for we have your five minutes  i guess the corrections officer testified at no time did you ever say that he would not go to medical it's not a question of him refusing to go he was just clearly incapacity thank you and i will he  st on the other side from this fresh the officers themselves perform a decontamination as opposed to make a decontamination materials available this courtship inclined to do so plaintiff has failed to establish a violation of the th amendment and plaintiff has failed to identify clearly established law that was violated in this case plaintiff attempts to raise a factual issue with respect to nurse killian's testimony about a do not gas list but she then retracts this testimony at page four thousand two hundred and twenty one in the record by saying that actually these lists are for facilities that do not have twenty four hour medical care which was a page after she testified that the unit in question the claimants unit it have twenty four hour medical care all of the other evidence in the record shows that there was no such list at the clements unit including the policy itself and the officers depositions and that this motion for summary judgment stage we know from scott says harris that if the plaintiff's version of the facts is blatantly contradicted by the record the court is not required to accept those facts as true so there are no factual disputes and we're left with plaintiffs real dispute which is the legal argument that it was an reasonable for the guards to administer pepper spray and  and that is not the case here based on the facts and circumstances and their knowledge of mr warburton past and his current his conduct on that day mr orson's history included his housing assignment and administrative segregation which is among the most dangerous offenders in custody it included a history of feigning illness and then flipping the script and becoming violent and it included a history of violence which included assaults on top up to up to seven correctional staff which is at page thirty to forty eight and the record his conduct that day was consistent with that history all of the there's an disputed evidence in the record that he was moving to some degree that he was vocalizing and saying that he would comply and that he was not in fact complying and we know from the supreme court's opinion and whitley versus albert that an inmate equivocal conduct that is conduct that could be interpreted as a threat by the officer even if it is intended by the inmates to be benign does not make force against that inmate unreasonable this court recently addressed the concerns of the risks of entering and made cell particularly one that cell as an administrative segregation and particularly when that inmate has a history of feigning illness and airiness versus calhoun planers cases at best stand for a rule that spraying a chemical agent without a warning or when the enemy is to restrain them subdued can be excessive force spray is excessive force and born versus gunnels the only discussion of excessive force related to the physical force that the officers applied which came after the end may have been handcuffed which came after the end may have been sprayed before circuit the inmate claimed that he had made efforts to comply which made the rd and th administrations of spray excessive force in that case but importantly the st and nd phrase were not excessive force the court explicitly said that because the inmate was not complying with orders even though he was lying on responsive on the floor the st two sprays were not excessive force in that case moving to the decontamination there are again no cases from the supreme court or from the circuit where an officer not performing a decontamination has supported an excessive force claim just two weeks ago this court and hopers as anderson and published opinion explained that there is no clearly established law and this circuit supporting an excessive force claim for decontamination of chemical agents and i go again to the th circuit the officers had left me and main in handcuffs which is the reason that the officers impeded his ability to decontaminate himself similarly and down the river says allen the officers only gave the inmate two minutes to shower which was against the policy they put him back in the same cell which we know in this case they put him in a new cell and they denied his report requests for medical treatment when this case it's undisputed that waterton had to post use of force medical evaluation that day we know that mr overton was moving in vocalizing which is consistent with his previous history of feigning elena's and then becoming violent and clipping the script we know that all three officers knew about this history and reasonably thought that that day while for ted was a threat based on the previous circumstances he had engaged in the same conduct and had still been a threat so sergeant gratz testified that in his experience with mr warburton and that housing assignment on overton had been pretending that he couldn't walk refusing to walk and appearing weak and then once he was in the office became violent and spit on staff and was screaming cursin threatening attempting to pass on contagious diseases by speeding and all of these events were fresh in the officer's mind and well known to the officers when they detected a threat in attempting to extract him from the cell on that suggests that the officers st recourse should have been hands on and i think it's important to understand that that's an escalation of force it's clear from their use of force policy and in all the cases  cited that it is less force to administer a chemical agent to gain compliance than it is to enter a cell and physically extract and me it is far more dangerous to both the officers and the and me when a physical  demonstrated that clearly established law existed that was violated by any a bit of actions on that day st i want to be clear about what this claim is about everything that happened prior to october th two thousand and thirteen is not part of this this appeal everything happening prior to that is outside the statue limitations so this court is asking on october nd was what the doctor bedell did was that a violation of the th amendment through deliberate indifferen plaintiff brings to separate claims of deliberate indifference st that he failed to mount the doctor bottle failed to modern monitor overton's decline due to kidney failure and nd the doctor but it was deliberately indifferent by refusing to remove the o c spray threatening medical emergency in cleveland the ball decided in september by this court the nurse in that case was found to not be deliberate and different deliberately indifferent because she did not know plaintive did not show by the evidence that she knew on that day that the inmate was suffering from a life threatening medical emergency the same thing is true in pets hold as counsel referred to neither of the people and pets old accused of deliber indifference were found to be deliberately indifferent because they did not know at the time they did not have subjective knowledge at that time on that day that there was a serious medical need but even if dr bedell can be shown to have subjective knowledge at that time of the seriousness of the over tens medical needs there is no evidence that he denied or delayed the necessary treatment their point of attacks that he had clear lungs his voice was loud and clear and the his pulse was good at that time overton had not expressed any other complaints he had not given any other indication that he was in pain and there was no other reason to continue the examination at that time if then we turn to the nd claim of deliberate indifference that of refusing or  refusing to remove the o c spray from dr from warburtons face again even if we assume that the application of the o c spray constituted a serious medical need there is no evidence that dr  time knew of any serious medical needs additionally he did not deny or delay treatment he checked for the lungs to make sure there was no asthmatic attacks going on he checked to make sure will overturn could breathe and as he could he sent him back to the cell days so she took it upon herself to insist that he was taken to see dr bedell he had refused exchange of catheters for several days and she wanted to make sure that he was examined and so there thank you your honor if you could start off just by defining what exactly is it that bit all dr biddle should have done in your view yes well dr bill when i asked him what he would do for this condition the st thing he said was take the patient step two which he didn't do and then was further questioning questioning he said well i would want to look at white blood cell count blood pressure and then do a mental status exam and he mentioned taking the temperature again and he didn't do any of those things would those things have revealed those would reveal if there was for the severity of a kidney infection at that point and then he testified about how to treat a kidney  infection and that it was very important to stay on top of something like this because of that feedback cycle i explained that the patient was very likely to go into a state of the time so  one of the symptoms that the doctor was aware of was that written was was very incoherent and that dementia was a symptom of the very disease that the doctor was  trying to speak but it's almost as if you just can't really form words he's like he's moaning with every breath that he's sort of mumbling in can hear and statements in response to questions by the nurse and the doctor and  says he's just unable to communicate and the doctor explained that with kidney failure toxins build up in the blood supply and those impair cognitive function and a person loses the ability to communicate and if you treat the disorder then they can very rapid the come back to their normal selves and he's so he's aware that this inability to respond to questions is one of the symptoms of the very disease that he knows will fit into that risk goes of becoming war infected by i want to touch on the doctor's statement in his medical chart note that the kidneys were non tender but just based on what we know from before and after the months that the doctor did that analysis it just doesn't it's not plausible that the kidneys would be non tender at that point the autopsy report from the death that occurred just ten hours later said that the kidneys were filled with abscesses profuse infection and that the bladder was filled with pus that would come down from the kidneys and liver tim was brought into the clinic for kidney pain and then the doctor noted other things in that same report that seem completely implausible and very self serving he wrote well overton's voices loud and clear which was absolutely contradicted by the video recording be engaged in spitting in a previous occasion i think that he may have yes i'm not trying to say he was a great guy and never tried to spit on anyone but the spitting here is a big he just didn't and that wasn't a major security concern they didn't even try to put on a spit mask until ten minutes after they had him in restraints they they were covered from head to toe in protective gear and spit  preventing spitting if that's their concern but they are it was you know they had an epiphany before they did the so just turning back to the guards for a minute the core disputed fact is whether those  officers could tell that well written was so sick that he couldn't comply before they used pepper spray on him because if they could tell that than they would know that ultimately they would have to do these hands on restraints anyway and so even