mr mcadoo with physician prescribe medication for his severe pain resulting from multiple fractures to shelter as a district court held such behavior was plainly unconstitutional but defendants this court to nonetheless hold that the p r i bars m from recovering damages for a constitutional violation the only way to reach that result is to hold that someone with a shattered shoulder who suffered immediate and severe pain as a result of that injury and continues to suffer pain from that injury to this day has  saying it is it is per se unconstitutional to not to to second guess an emergency room the injury then is that different and how how is it measurable that that difference reaches a constitutional level when a physician prescribe pain medication for a fracture childer and then prison officials we're not talking about pain as it's briefed we're talking about delta pain we are talking about about japan then where where's the evidence that that that is this falls within your your argument that well pain can be can be back off narcotics why even if even if he is practices haven't changed and i suspect they have why did this why did this fella nonetheless need disfavored narcotics that evidence isn't in the record below but but feel that it's been a jury and the prescription that the doctor gave him are in the record below and the district court made a factual finding that he was an increased pain as a result of the failure to provide him with the tylenol and  recovery for mental or emotional injuries which is not what he's seeking recovery for here this isn't a case about stress fear or depression it's a case about physical pain from a fracture childer disputes that a fracture shoulder is a physical injury the only question was why does the hindsight diagnosis matter i'm sorry they didn't know it was a fractured shoulder for a long time you know that's a bad that's a bad sprain or maybe even a fractured ankle you know not only is it a physical energy or injury but the prisoner who's seeking recovery that injury isn't alleging mental or emotional injury so the peeler in one thousand nine hundred seventy he doesn't even apply there could be questions of how much compensation he deserves for that injury maybe it's only a sprain and he doesn't deserve a significant amount of compensation but he's not barred from asking for compensation which is what the district court prevented here before the various courts have addressed pain and all the courts that we have all of the ninth circuit the eleventh circuit have held that physical pain as a physical injury under the n the bottom line on that is judge shaky if you read her opinion and i know you will she has done a very good job of bringing in all the cases pretty much that she can find dealing with an issue but couldn't have been more conclusionary on the on the ultimate oversubscribed being opioids throughout the medical community that to me is not per se unconstitutional did it require some inquiry probably on in a particular situation well maybe they not have a per se rule prohibiting narcotics in a jail in county did have that and so she did raise the conclusion that you can't just have that she did conclude you cannot have the per se or she concludes you could have the any additional medical treatment he goes back to the doctor now he says he tells such a key that the doctor told him he couldn't prescribe it anyway so he was going to get a very easily have been a doctor using that as an excuse not to get it because he didn't think  simply a persuasive argument for the for nominal damages down the road or is this is the c extent of the prescription somehow related to that the core issue on appeal t to how they would have anything to do with how much pain he said well as far as not entitle to less pain medication because of the reason he was injured by agree with that i would agree that as far as that is concerned when you get into the damage question the damage question  around which i mean clearly the that the prisoner litigation reform act says that you have to have a physical injury and it is designed to avoid the the mental when the pain is as it is in this case a direct manifestation of the undisputed severe physical injury how can you separate that from or why isn't that distinguishable from the case of someone simply saying they are hurt where is you have direct the direct outgrowth of an undisputed severe physical injury i don't think that you can separate those  clearly the pain is a symptom of that injury that you're talking about but the pain itself is not the physical injury if you remove the pain you still have the injury if you remove the injury you would no longer have the pain concluded that he should have gotten one hundred and i we did appeal that we just said ok maybe she's right but when you get into the damage element she gave him a dollar based on nominal damages because she concluded that the pain was not a physical injury and i think you made a good point about sprain your ankle you go play basketball you from your ankle you have pain the pain is not the injury yes the straining the ankle it's the tension tear whatever that is the physical injury and the prison reform act requires a physical injury to recover and cynical reinjury at one point will be able to initiate litigation and you have to have physical injury to get over that initial but the pain is not the physical injury the physical injury was the event that occurred the pain is a symptom of the physical danger just like probably shallowness of breath just like headaches all those federal civil action may be brought by prisoner confined in a jail prison rather correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual is that language were tesla's yes why don't we have the physical injury here you do have a physical injury that occurred in the jail so we have the prior showing of a physical injury for the pain ye difference between physical pain and mental or emotional injury i think there is yes yes and she cites those cases that say basically he's being exposed to so and having a headache and that type of stuff is not sufficient the house so i'm asking you to do is just to affirm her decision and when you again review your decision finding that her conclusions expressionist damages are appropriate again we're talking to kowtow as opposed to any which is a day and a half or as opposed to long term medical i would also note that when he was actually transferred to the department of corrections they waited four months to have any top a surgical intervention on his shoulder so to extent that he had a problem there obviously it was not an emergency situation as far as they were concerned because of the delay there how ask you  this court as precluded from going to that issue now you know we we've had multiple decisions in the last twelve months clarifying that you don't need to cross appeal now you do forfeit arguments you don't make