first with the district court's finding it bit in that the video blatantly contradicted what mr korda claimed to happen at the green county jail that day i want to start there because that is the basis for which the disher court made flawed findings as to whether there are material issues there are genuine issues a material fact in this case as to the subjective intent of officer mckenney the objective serious physical injury of said perhaps the district court was looking at video five as the court is probably well aware of there five portions of video in this case because they have the cameras are set up in the jail and video five does show a time in which mr cord was placed against the wall by officer mckinney and perhaps the district court judge was looking at video five whereas in this particular case we asked this court to look at video to video two is where we see officer mckinney and mr korda come into sight of the camera and they're moving quickly and then we lose sight of them at that moment that we don't see is when mr korda had his head rammed into a wall by officer mckinney the video does not show what happened in that moment thus the district court erred in applying scott be hairiest and finding that the video was blatantly contradictory to what mr korda claimed happened what the video also doesn't show is whether or not officer mckinney had malicious intent mr cordell says that based on what had happened in his initial holding cell and an argument occurred between him and officer mckinney and officer mckinney wanted to get even with mr cordell he had motive for wanting to ram mr cordle's head into a wall and i am not arguing that officer mckinney intentionally moved out of sight of the camera went when ramming mr cordle's and head into the law that is not part of my argument and it is quite possible right it is quite possible but i am not alleging that he intentionally did so because there are no facts to support that at this time where you could ignore you i believe gave us these pictures that were from the first stills from the from the videos and in one of them it would appear that just before the officer mckinney and your client are going out of camera view it would appear that officer mckinney is looking directly at the camera because his eyes look like they're going right to where the camera seems to be is that a fair description of the picture do you think yes some other facts that we have to support officer mckinney malicious intent include testimony by a fellow employee of the green county jail stating that he pulled after mckinney pulled mr cord out from the ani holdings and aggressive manner and that's coming from a coworker who arguably would normally testify in his coworkers favor subsequently to that we have testimony again by that deputy who said in his desk testimony that he had to take two steps to keep up with after mckinney and mr cordell because he was rushing him down the hallway so quickly but the most important part of all of the facts that we have to look at and light most favorable to mr cordell is that officer mckinney supervisor thought that officer mckinney was being so aggressive with mr cordell two he thought he was being so aggressive that it required him to be pulled from the final holding cell and for his position to be taken over by another officer and a reasonable jury could him for that if officer mckinney was upset and aggressive at the end of this series of events he was aggressive and malicious at the time he ran after him at the time he ram mr cord fact in this case in arguably it is a fact that should leave this court to conclude that this is a case that should go to a jury it's a fact that a jury could hear and weigh in light of all of the other facts that we have to support that officer mckinney was malicious that his job for jury duty to determine going to the objective standard of the serious physical injury in this case the disher court erred in failing to even look at this problem because again they are they had a flawed analysis of whether this video blatantly contradicted what mr cordell said and we would ask this court to look at this issue when the facts in the court looks at the facts in the light most favorable to mr cordell you will find that there is also a genuine issue a material fact as to whether mr korda suffered a serious physical injury some evidence that a jury could hear to conclude that mr cordell suffered this serious physical injury would include in the back pain that he now suffers from it just disrupts his life twenty four hours a day and this pain we have testimony from a doctor who states that this type of pain is what people suffer as a result of the whiplash style injury that mr cordell was diagnosed with at the green memorial hospital shortly after the incident at the jail exaggerated his skirt so that he would need stitches do i recall someone saying that car didn't look very bad in the beginning in the summer or other maybe he prided open more yes your honor there is some testimony in the record that mr korda may have aggravated his injury once he was placed back into a holding cell however that raises that there is their credibility issues in this case you have mr cordle's statement that he he was believing by the time he got to his holding cell a slight abrasion one cause that that type of result and then you immunity issue in this case again the disher court  let me quote mckenna d when the question turns upon which version of the facts one except the jury not the judge must determine liability and that is applicable to this case because we have two versions of what happened and the video does not discredit one in fact it creates more question of fact and we asked this court to reverse and r proceed thank you counsel please the court the district court awarded summary judgment to glen mckinney because there was no evidence that he acted sadistically or maliciously to cause harm to mr cordell on july twent two thousand and nine and incident arose in the jail when mr cordell wanted a haircut and was told no an argument sued and whenever inmates get upset in the jail sitting there removed from the holding cell and taken to an isolated area this is standard protocol and mr cordell acknowledged as much and is it in his deposition he was removed from that cell in the second floor and taken up to a third floor detention area during the course of removing him from that area to the up stairs detention cell mckinney moved at a brisk pace and as the testimony indicate this is a technique that correction officers use to prevent a response from according to the video there were several other jail personnel following that is correct and and the video would suggest that mr cordell was the only inmate in the area that is incorrect ok the video is you know other inmates when you watch the video they take mr cordell from me so holding area on the second floor what you can't see is that there are other several inmates in that area when they bring him around and to the stairwell to take him up to the third level in those hallways it's just cordell mckinney in the in the other correctional officers and the nurse following so when they're taking him down that hallway it's mr cordell front line there's nobody else in front of him mckinney and then the other officers that follow now i mean mr cordell as i understand it testified that he was being moved not only briskly but fast enough to create some kind of discomfort in the shoulders and according to him it was this kind of extra speed that causes him to turn around and i guess inquire about you know why running me so fast at this stage of the case why should we credit that testimony because i don't think that my understanding of the testimonies is such the officers testified they moved too fast which is a technique they used to keep these individuals off balance so there is no aggressive response they go up the third to the third floor and up the steps of the third floor there are no cameras it is an isolated area and if an officer was going to act maliciously or sadistically that would have been his opportunity and these officers use these hallways every day and they know where these cameras are and they do they have them in this hold as are going up the stairs i there's no testimony as to how he was being held up the steps i can only assume from representing police officers that he did have a hold of him in some manner that it was all unclear what is there excuse me you wall on the stairway there are several walls on the stairway your honor on both left and right and as you reach a landing area so they get him out and they do walking fast and they are holding him from behind but the complaint and the testimony and this is getting to what the district court said there was no evidence of the complaint the testimony was that the is that mckinney had him raising his arms so high that he was almost parallel with the floor and created almost like a battering ram into the wall at which point during the moment of impact ordering him down the hallway towards the wall i mean if you look at the complaint and you read the test where that's what was alleged where's the blood spatter the blood on the wall higher love i don't know your honor there was no testimony or evidence as to where the blood was actually on the wall but there was blood on the wall i don't recall that evidence in the i mean it looks like the nurses pointing to the wall sort of i mean sort of like she's saying clean that up i mean the huge there's no audio which point your honor after the impact and everybody else goes off and she sort of lingers in the  camera vision and she points to the wall or talking to somebody off camera but this is a point the video where they get him to the ultimate detention facility where he's going to be isolated i think so i mean she just lingers on the camera after when else departs my understanding is when there's no question there's no question this case that he was put up against the wall there's no question in this case that he suffered an abrasion to a space that is not being disputed and when they get into the ultimate area where he is going to be put to he calms down they do put him up against the wall there gently and call me at that point and i'm sure his face may have made contact with the wall and that may have been what the nurse been pointing out the issue in this case is when he's being led down that hallway that's i believe on camera to video too which is depicted in the in the pictures that were submitted last night is whether or not the officer acted for purposes of maintaining order and discipline at that time or sadistically in maliciously to cause harm and under the eighth amendment it's a two prong test both subjective and objective under subject subjective test we look and see what were the officers motivations and how do we determine that we look at the need to use force the relationship between that need and the amount of force that was actually used in the extent of the injury in this case the only time force was actually used is when mr cordell attempted to turn and face the officer all the officers agree that they are trained that this is a support group and they're trying to either push against that with that type of maneuver or to take the individual to the ground which is exactly what mckinney did know whether force was used before or after that money according to cordell mckinney rammed cordell is head against the wall like a battering ram and car just an injury that required stitches and that produced whiplash long term injury so why isn't that a fact question that means that summary judgment was not appropriate because there's no evidence that he was rammed in the manner described by kordell the evidence we have is that he was putting the wall in the manner described by mckinney but can't cordell provide evidence in the form of his own testimony as to what happened that constitutes evidence not when we have a video that shows otherwise right on the wall the wall is right below here there is not an extended five six feet beyond this this this is the end of the wall and there's no evidence that mckinney raised cordell in the which he described well i don't think it's the raising part i think it's the force of impact part that really matters to the eighth amendment terminating and i guess the problem you have is twofold number one we have cornell's testimony which i think contrary to some of the things that just a court said we should credit probably and number two we just can't see how severe that impact was on the video because it's not shown in response i have to i have to respond here one has said again i go back to the fact that it's their burden to prove ok it's their burden to prove their case my burden on summary judgment show that there's no genuine genuine issue of material fact ok and what i have is a video that shows the manner in which mr mr cordell was negotiating moved down this hall and it doesn't corroborate his account of the events the second thing is we have to look at again the need versus the amount of force used the need is he turned to face the officer that's a sign of aggression the force use is in line with what the trained to do which is to push against and they put him up against the wall not like a battering ram against once they were able to regain control of him they continued to move him to where his ultimate spot was going to be in that in that isolated detention room there is no there indication of any force the question is did mckinney act maliciously and sadistically to cause harm and presumably i mean would you agree that even in a case where his training says to him respond with some sort of force even in that kind of case there could be evidence that the force was sufficiently extreme that he actually acted maliciously in that with respect to the degree of force that he chose to apply is that i mean theoretically a possibility if i understand your question your honor i think what would have to be  are something more than de minimus for something more than diminishing but didn't we have that here i mean history you know he got five stitches he got the whiplash diagnosis at the hospital i know that some of the witnesses on your side say he's aggravated his own injury in the isolation cell but he says he did so i think we have to take his testimony unless you explain why no one i mean why isn't that force five stitches enough to stitches for do we have a five stitches case i mean you know maybe we do seriously there's also had x the i don't know when you're on our that's that's a fair point but i go by what the court saying that cuts lower the damages than heard from the supreme court case  cordell after this event place and thought that he was acting aggressively i believe the way it was described in the testimony of your officers is when when you're involved in situations like this there's national tendency you know for officers to get excited you know i don't want that to imply that they're out to hurt anybody or do anything that they're in a prison facility they're around these people all day long and there are concern for their safety going to be disciplined for the past for what he was doing in in the holding cell when he then asked him to step outside so the the discipline was not for the event in question but was for what he was doing afterwards he was not disciplined for using excessive force you know what was the discipline for unprofessional conduct where during the course of being in that room and his emotions getting the best of her panty sort of exchange that they had at the beginning  the profanity before the event that kordell is complaining about let me take a step back officer your honor mr cordell want to have and was told no and there was an exchange of profanit allow a jury to find that he acted sadistically a few minutes later a few minutes before you mean that he was worked up a few minutes before undisputed right reprimanded for that right remanded for things that were going on and right  and yet as this exchange as you said he gets emotional isn't that evidence that a jury could consider as relevant to his whether he acted sadistic not in light of everything that occurred up in to the point when force was used again he's a matter of law that has no tendency to support a finding that he acts distinctly a few minutes later i mean he's not getting reprimanded every ten minutes this is a fairly you know unusual event prism and i guess it's a coincidence that three minutes later he does something that might be sadistic that's the issue before i guess i don't quite understand the question he was removed from the cell taken up to the third or use of force he was taken to a holding facility were right and the officer was asked to step outside ok up and to the point when force was used there's no evidence of any malicious conduct on the part he was reprimanded for being too emotional for this application of force correct were mimes mistaken i don't believe that's force suits involving deputy mckinney there is another one that he is named as a party in but was not the individual minder standing and i'm not involved in that case but he was not the individual who was involved in any use of force the plaintiff in that case named all the deputies that were on staff at that time and it in my understanding is that case has been resolved and it's done but i don't know do with a deputy and mr burgess involved in what they refer to as a shakedown room when somebody is brought in and what occurred in there that's my only knowledge of that case thank you are there any other questions from the everything and it is a matter of fact it is something that a jury could use to infer even if it does so we applied to the the last holding cell incident a jury member could  just minutes before he had that same aggressive agitated state and causing him to act maliciously with mr cordell is the citation itself in the record in front of us no your fact that mr cordell does turn around that officer mckinney was entitled to apply some degree of course at that yes your honor i would agree with you that he is entitled to apply some degree of force however it's a question of fact as to how much would ben pushed him over the level of qualifying him as acting maliciously instead just said this stickley mainly because we see the exemplar of how officer mckinney could have put mr cordell against the wall in video five he places them against the law he does not force his shoulders down and ram his head into the was mr cord out claims happened in video two it's just in it another fact that the jury could reasonably conclude that  mckinney acted maliciously but that's the key thing here i guess and your view is that he forces cordell the lead with his had rather than some other move that serves to smush is this chap's maybe up against the wall yes that's correct and it is shown when you go back and look at the videos you will see that officer mckinney has a hold of his hand cuffs with the left hand and has his right hand on mr carrados right shoulder it is it is possible that he pushes his shoulders down to then ram his head into the wall then causing the blood on the wall the blood on the from the ground and the whiplash style injury that mr very fine job and and we thank mr mckinney's counsel as well we're not meaning to i'm not meaning to praise one over the other but i did feel that i did feel their recognition the law students exemplary work was appropriate so i thank you both for your argument in the case