johnson that drug anyway on a nightly basis without ever notifying mr johnson of what he had done don't and won't ever read it if the doctor and demonstrate on remained that  johnson met the standard under harper that he was a danger to himself or others what part of johnson's claim would remain i would say that judge grosvenor that all three claims would remain first for the substance to due process claim the question is not merely whether mr johnson was dangerous to himself or others it is whether mr dr tim walla found at the time of treatment that doctor that mr johnson met decision at the time of treatment the overarching standard under harper is reasonable notice and it's hardly reasonable for a doctor to prescribe first and ask questions later he did not do that here and in particular he did not make the prescription and the record in fact shows that doctors in walla knew how to prescribe mr johnson pills in such a way so as to give him access when he needed it mr dr to wallace says in his affidavit on page fifty seven of the appendix that he also gave mr johnson what he calls access to the anti anxiety pill addison in two thousand and fourteen but if you look at the actual prescription on page one twenty five of the record that shows the doctor to walla prescribed the drug n that is on that basis as needed and that fact show is the doctor to walla knew how to prescribe mr johnson pills so as a way to give him access he knew how to follow those procedures but he disregarded them and  that reckless action which makes him liable under section one hundred eighty three why is forcing not a requirement to establish a claim under harper under your reading of harper you don't you really create a constitutional cla mere medical malpractise or negligence well there are two answers to that question judge williams first has the ninth circuit held in united states v williams reference or briefs the means used to compel administration of a drug  detract from the fact that is still on wanted and that is still violates a person's fundamental rights so for example if a person is supported by court on pain of contempt to take medication it is just as unwanted and involuntary as if he were physically forced to take it the same result and the same logic applies here because mr johnson took the drugs in voluntarily and on willingly because he did not know what he was taking and he suffered the same side effects as if he was ordered to do it by court or if you were physically forced to do so second year your honor asked whether this is merely a claim for malpractise and of course section nine hundred eighty three liability is not available for negligent acts but that's not as we said what happened here  doctor to walla a reasonable jury could find was reckless when he knew that mr johnson had explicitly refused medication but he prescribed it to him anyway under circumstances where mr johnson did not know that he was taking it on want to drug observation notes the doctor to all the made for the visit where he prescribed the reciprocal that he had reviewed mr johnson's medical history and so he would have ben aware of what medication mr johnson was taking further i believe a reasonable jury could find that by virtue of his position doctor to all and knew or should have known how medications would have been administered at the rushville facility that is that they would been given unlabeled in a cup by a nurse who would have no idea what the what the medications actually contained and let me ask you this you talk about the consequences of him taking that medication what it is there is there to support his claim for damages well listen jested this medication well judge williams there are two sources of damages that on mr johnson claims here first he has allege of course that he has suffered side effects he has suffered for instance the painful and embarrassing symptoms of having lactation he is entitled to allege to a jury what the amount of those damages should be and second i would add that he has also alleged emotional distress from the fact not only that he was taking medication he didn't not want but that he expected a due process hearing before being given unwanted medication and he felt violated as a result of being stripped of that right and those damages was their medical testimony about them remind me there was no expert medical testimony your honor at the summary judgment states however we would submit at the same time it expert testimony would not be necessary for a jury to find that  professional standards or that mr johnson had in fact suffered those symptoms it's just that he was taken so many medications and the interaction of those medicines and how they would affect me and that's why i asked the question yes in terms of medical testimony it would be possible yes your honor for the interactions of drugs to cause the particular so that is there any indication that he was harmed physically the rest of the indication is his own testimony that he suffered the symptoms i've discussed dizziness m could be attributed particular to the risk but on not say to some other medication would be a question of fact that would be determined by a jury trial i would also turn if i could to the procedural due process claims because in addition to the district court he would he would have been feeling better you know that because he was taking all these other drugs as well all we have is mr johnson undisputed testimony that the side effects began to appear after the medication was prescribed to him i would note of course that mr johnson's due process rights were violated ever before he started feeling the side effects i understand  he's stopped taking that yes mr johnson immediately stopped taking the risk but all as soon as he was informed that he was being given to him and i should note he only found out because dr to wallace sent him a letter saying that you have missed follow up appointments therefore i am discontinuing your president does he feel better now he certainly does not allege the same symptoms he had during the time he was taking the risk at all no your honor is there is is there  medical literature on the effects of breast but there is at the very end of the appendix your honor a short summary of what respond all could do in terms of side effects out also note that d to all admit in his affidavit beginning i believe on page fifty five of the appendix that were spread all could have the same side effect as what mr johnson has alleged here if there are no further questions i would like to reserve the remainder  also been very careful not to elevate what is a tort claim into a constitutional violation and that's what mr johnson is doing here the supreme court in this court has held that the forcible administration of medication to a detainee implicates substantive due process rights but there's no forcible administration of medication involved in this case what's the difference between forcible and deceptive because first of all there's no evidence of deception here your honor well he didn't tell him though about it was getting the stuff right he in their conference together they talked about the drug mr johnson initially agreed to it he said i signed a consent form which provided i can refuse this medication at any time mr johnson acknowledged knowing that he could refuse the medication but then he panicked when dr chen while according to johnson something said something to the effect of well it's a good thing you came in to see me today because they may have forced you to take this medication johnson panicked and left the room doctor to all of them prescribed the medication to be given access to johns this is the institutional setting dr tiller well i didn't know when he would have the ability to see johnson again if johnson changed his mind but the important and critical point here is that each and every day mr johnson admits that he had the ability and the right to ask the nurse dispensing his medications what medication he was being given and critically he had the right and the ability to reject and refuse the medication so on any given day he could have said what is that you know if he had happened on a constitutional deprivation means that he would have been denied his right to refuse in other words if whether he even if he had known we could have said you still  there he was there for mental health rehabilitation right and most of the time he was just going to fair a p the only other drugs he was on at the time of her stomach ailments and hypertension the reason he came to see  when someone's on the manic face correct and and and the illinois coal talks about treatment of developmental mentally disabled people or people like him i mean that's the whole reason he's in rushville right and here we have a situation where i'm moving on to something else in terms of the motion to dismiss he was represented pro se the court dismiss it and he should have been given an opportunity to amend but as i understand it he was never even informed of the decision on the motion to dismiss the medical battery count was disposed  the question is whether the district court should have given him leave to mynde and perhaps appointed counsel for him so that he might be able to plead his claim for medical battery under illinois law he did mr johnson did not request either leave to him and he didn't request counsel i take that back i think he had requested counsel if he did not request leave to a man mr johnson is an experienced litigator he's filed sever lawsuits and i've cited to three of them in my brief where he requested leave to amend his complaint he was aware of his rights i think you can tell from the underlying papers in this case that mr johnson is intelligent and he is an aggressive litigator warrenton rushville he was in  he's a he's a violent criminal who has been moved over to rushville from the department of corrections for mental hurts you treat him as a totally rational person know everything into what he was doing  pills didn't know what the medications were right the right it is so if you had asked it would have been a no moment or no consequence because she didn't know what it was well when she did ask her she said i'm not sure and he asked her to find out and she did and came back and said that there's a risk for going your medication cup at which point he said i'm not taking that i mean i refuse to take that refusal that was honored and never countermand how long had it been take you know about five and a half week reason for him to know as well if there was an additional pill in the cup compared to what he was used to that would have been indication that there was something in there that was different than the medications he had been receiving the point here of unsuspecting detainees no and that's not what happened here judge or oh ok now this is any different i think that that's my problem i mean why would he have had any reason to believe medications and slipping it into his applesauce he had mr johnson in with you and he evaluated him he decided even after mr johnson left the room i want to make this medication at the ala bill to him if he chooses to take it i have a violent inmate on my hands because expressed a current intent to assault institutional employee who's had three citations for threatening behavior within the last few weeks his behavior was escalating tiller's intention wasn't to trick him there's no evidence of that dr tiller's affidavit establishes i wanted to make this available to mr johnson if he changed his mind again and decided he wanted to take it johnson so came to  the difference here is was he didn't i a due process right and the answer to that is no every single day he had the right to refuse to take any of those medications that's the difference between what occurred here and the cases that mr johnson has cited is this a medical negligence case it might have been if we're talking about whether he should have discussed it further with the patient what mr johnson should have known those are those are tort consideration what mr johnson has alleged here are due process violations substantive due process violations and this court in the supreme court has said there are only a handful of those and one of those involves the forcible administration of medication but there is no dispute here that he was not forcibly injected with this medication it was given to him daily in his cup he had the right the ability to read well then eventually ability i'm  ville as normal people with the normal freedom of people there their procedures right i think are all present the question is did he understand that he had the ability to question what medications he was given and what medications he could refuse and he said of this deposition yes i knew that i knew i could ask and i knew i could refuse and that the right to refuse is what takes this out of a substantive  thank you your honor i would like to make three quick points in response first doctor to all argues that mr johnson was competent and that he could or should have done more to find out what he was taking but the supreme court's decision  this claim sentiment establishes that when a psychiatric hospital is deciding whether to admit the patient voluntarily they can't simply trust the patient's work because of course the patient might be mentally ill rather the is on the institution as the only person that is as a psychiatrist being the only person to take notice of whether the patient is in fact competent the burden is on them to find out whether informed consent is going to get them the same result  mr johnson access to respect all at the very least that is a question of fact i would also say that our says no evidence that the nurse and anything about that that he had an option or presented him with any kind of option none whatsoever and i would add of course that whether mr johnson had any inquiry notice whether he was competent whether he could or should on north is at a minimum a question of fact that must be determined by a jury at trial finally i would state briefly that mr johnson didn't fact plead a proper claim for medical battery in his complaint while the better account was one sometimes i would note that this court reached complaisant its entirety and he alleged each of the three elements of battery under illinois law election attentional act when he said that dr intentionally gave him respect all did not want the alleged offense of contact when he said that he took respond all that he did not want and suffered side effects as a result and he make clear again and again that he did not consent i would therefore ask that the judgment be refers