that this twelve seat analysis although a bit unique because of the extensive materials in the record is governed by those materials in the record and the complaint allegations of fact which are not contradicted by those materials in to make these arguments about qualified immunity at the summary judgment stage as well is that right that would be that would be correct your honor i would assume there would be almost identical in our view because all of the materials the court needs to settle this issue of law is now before the court as it was before the district court and i think it's evident from the district court's opinion that although paid lip service to the fact that materials incorporated by reference interpreted to the complaint allegations may be considered it did not cite any minute any of these materials in its decision it merely stated in addressing probable cause and qualified immunity that it must accept the factual allegations as true  at this stage when that is not necessarily the case we have cited cast you city of new york garcia vetoes for the proposition that once materials are corporate in the complaint and plaintiff does not object to the consideration of these materials to the effect allegations in the complaint are contradicted by the the materials control and for i'll just point to one instance in the district your honor it seemed to me that the materials that were before the district court at or the officer issuing the warrant and that the district court might have been entitled to rely on that at this stage though again those that might be explained or contravene that the summary judgment stage in my view my growing in that well were generated during these recorded interviews the whole process is in the record detective espinosa went through a painted painstaking process going through each sentence with these with these complaining patients to confirm their accuracy he also advised them that by signing this by signing them under oath they were subjecting them selves to criminal prosecution if there were falsities in them so and lastly whether the word fonda old or or touched is used is immaterial to probable cause because regardless of the description it's a sexual contact that must be supported by a possible that the records suggested that some of the touching that the detective highlighted was legitimately for purposes for medical purposes and there was no indication that it was for purposes of sexual gratification as required by the statute and that that was still kind of open and uncertain that's a good point your honor i would i would submit that the most serious allegations were came from patient one who to address this allegation if you would be one thing if he said yes that's true but i had this medical purpose in mind instead he said i would not put a finger in her in her vagina i would not check her private area you would never look for a ration and the collective complaints of all three patients and i just want to point out that i think it it's important all three patients accused him uniformly of without warning or consent removing their undergarments to expose their intimate parts plaintiff went out of his way to say i would never pull any anybody's underwear down i would never own clip anyone has bra i would always have gloves on if i examined general area these statements are flat denials completely at odds with these three patients who had much less incentive to be dishonest who are willing to put their statements under oath an object objective lee reasonable detective in a spinoza's position was allowed to conclude that he had probable cause and that's all that the standard here he didn't have to be sure that he would get a prosecution on these charges it obviously could raise some complicated medical issues but as far as these vachel penetration and manipulation bonafide beneful purpose is not at issue what was the circumstances of the dismissal of the charges against mr dr parker who says that on the record according to the complaint the charges were dismissed two and a half years after they were noted there this is this is essentially a he said she said if dr espinosa was lying it's implicit that he had no legitimate medical basis to do these things he in fact insisted that he had no basis to engage in these contacts and supportive of his denials so all this in for all these arguments about a recto vagal exam are moot because application and improperly included his subjective beliefs and i want to give you an example in just walk the court through the record of of how he found that into or at the court dr pork was a family practitioner had a thriving six thousand patient practice in twelve years not a single complaint against them and these cases involve allegations of sexual assault by patients in the course of medical exams and in connecticut like most everywhere else when a doctor accused of sexual assault course of an exam there's an additional element which is the lack of bona fide medical purpose lack of a real purpose lack of a medical basis for the exam and that's the really the key element in the charge in every reasonable officer knows that because it's right there in the statute and so as set forth in our papers all these patients had extensive medical histories and and that focusing on patient once and walked the court through patient one so she had a history of severe constipation rash but he still lump in her breast and the media had been referred for a colonoscopy to a doctor pork of us that she didn't never attended she had significant nerve impingement impingement in her spine  spinal fusion surgery pain down emanating down her legs and she had significant so she had significant ongoing issues with her breasts your history of breast cancer in the family history of ongoing recorded their audio recorded so we can hear them and transcript of them is in the record and so what she describes as and i quote at that sealed appendix one hundred and thirty five he started doing my breast just grabbing them and squeezing them and when he was doing that i said i do have a lump there you know i was diagnosed with fibrocystic disease and he said yeah i could feel one i would have a checked out and said get dressed in ordered lab work so squeezing the breast in connection with a lung and then she described exam of her sadek nerve on her buttocks he was looking at my back and then pushing down here pushing down here and said my sadek on my lower back kept pushing around and asking me if i feel pain anywhere so pushing is that word that's recorded and then in connection with the abdominal pain the bloody stool severe constipation she described what would be called the director of agile exam and she said he inserted two fingers one another and one in the rectum and was moving this one that's what she said moving so we had squeezing in connection with the tumor would do dr who said i mean i'm concerned by the argument made by your adversary that if we end up with the he said she said situation why isn't it at least  what is in the detective at least arguable probable cause to pursue the allegations when he said over twenty times as he doesn't remember in the exam it's months later thousands of patients later he said over twenty times in the record i don't remember but he did say  he would never he said he would never under any circumstances proofing your individual because he simply doesn't do that kind of examination and again this is where we get into the issue of a lack of medical expertise because what the detective is accusing him of exam in other words but he said he would never put a finger in the vagina but again he said he didn't remember he didn't remember he said he would never do that he said that's just not part of his practice he would never do it and didn't do it right in the in the context of a co says why would you choose me of this at this time of day i'm a good doctor i wouldn't do anything like this so he's denying and he said repeatedly your honor that he would never do anything appropriate never do anything appropriate and  victim says he grabbed my she grabbed he grabbed my breast and it said i didn't detect it as a lot to believe that the complainant and say you know it's a he said she said but when there's an additional element with a lack of a bonafide medical purpose that adds an element to it in the question as in other words they're creating a false dichotomy that if the doctor denies doing it that establishes the probable cause it's that's not the case if the doctor denies doing it then it's not a question of whether he did it with the proper with the proper medical purpose if you said i just i just never do that then it's a he said she said over whether it's over whether it was done without a without a proper medical purpose because the doctor and knowledge not having a proper medical purposes that's not part of my practice i don't do and he said repeatedly that i do rectal exams rectal exams are standard of care pushing squeezing and moving and the detective took took notes and comes back and reads his handwritten statement of what hers she asked him to read it she said no i need you to read it because you don't trust cops a court i you to read it and she starts reading says i can't read it i need you to read it to me so he reads the statement to her so she actually never read her statement and then the word now the words in her statement are dr proceeded to examine me by touching and agile exam he says i could feel his him move his fingers in a strange way it gets it gets more intense than that but he says strange now he resists statement and asks is that accurate here's what she  says i'm just like really confused i know what they're referring to the tape is accurate and that's what sealed appendix one hundred and seventy nine and she states again is the tape recording involved is it going with that meaning is the tape recording going with the statement and ninety two ok because i get really like i get really like confused when when things are written down and then and then kept changing and then and then read to me and then puts another story and you know when i have to  fact that she signed the statement that it's her affidavit she did complain she understands she complained and said she felt uncomfortable but she didn't say fondled she didn't say it strange sexual so when it when it ends up in  warrant affidavit what he writes is victim one could feel his fingers moving in a strange sexual manner now that's even different from the statement that he wrote so so when they say and rely on the fact that  all the evidence is in the record and the one affidavit is consistent with her statement and she signed it that's the end of it that's just not accurate because because she didn't read it and she said she was confused and wanted to roll and recording the detective tells her it's exactly the same there's no difference for the recording which is a lie it's different and you get to the court's other question about sexual gratification i may have looked at every every case against the doctor and all the land and all those cases there is that element of sexual gratification whether it be contact with the detectives with the doctors private parts or whether it's some kind of moaning or some kind of propositioning by the doctor a quid pro quo there's always some element of that in the detective asks patient want to just walking down patient one so says so detective so what you're describing to me during these two appointments and you know i'm not an expert in medical practice but it sounds a little strange to me and i'm just wondering if you can recall like a conversation or something else that kind of seemed kind of strange to you at all i don't know if you ever wanted to go on a date with you or anything like that patient no no you checked there did he ever patient absolutely no never patient no it was very professional you know my testing and everything over the year and a half i don't know how long you've been with him you know that sooner sponsor the sexual gratification question which really goes to the element forgery in fact he not only disclosed that but her also disclosed her subsequent conviction for forgery all this discussion about contact with patient patient one's breasts and her description of it is not relevant he was charged for the for the vagal contact in the vegetal penetration she came there to make a sexual assault complaint he denied which doing what she said he did there was no other reasonable inference on those facts alone then there was no medical justification for those contacts dr park who said this himself over and over during the interview you know i think that there's there implications that are concerning about his characterization of her statements with more sexually oriented words again i think a close listening to or reading of the transcripts of these  interviews the diff the plaintiff is making mountains out of molehills there is the essence of these complaints is fairly described in these written statements and these patients didn't have to sign these they adopted these words themselves they weren't forced to do anything there's no trickery here they came to spinoza quick point about this one came to mistrust that's true and then and then espinosa went to great lengths because he was concerned about the reliability of these accusations to see what else she could find he interviewed people objective people who said her story's been the same the whole fine and then he found complaints of related conduct interviewed those patients they accuse him of doing the same thing that he said he never did there's no dispute that their sexual contact or penetration from a doctor to provide to the defense some medical justification thank you very much that if your arguments will take the matter under it