the argument on behalf of mr carter thank you very much record shows mr carter suffered more than de minimus injuries and his existing injuries were exacerbated as the result of his falls there for the district court in dismissing mr carter's complaint records indicate that mr carter's injury is more than two minutes over the course of thirteen months after his falls mr carter actively sought the attention of the medical attention of prison staff on eleven separate occasions he was prescribed a variety of pain medication including a steroidal injection an orthopedic surgeon concluded that mr carter may require surgery to repair his ankle to the exacerbation point mr carter's injuries were also his existing injuries were exacerbated so mr carter entered prison with existing neck back and incl injuries in those injuries were made worse after the falls under west virginia law under the actual school doctrine a plaintiff need only show that injuries have been exacerbated or reactivated in a plaintive does not need to show that new injuries have arisen as that are you saying that we can find that on the paper record you want us to hold that those are undisputed sorry or are you saying there's a dispute as to those facts and the district court resolve this on the merits our position is that based on the record at the very least these appear to be more than de minimis injuries now ultimately the question of whether these injuries are are de minimus or not is a question for for a fact finder but on the as i understand it you tell me if i'm right he has officially alleged nontrivial injuries just look at the complaint in the record there is enough for a disputed fact the district court erred by resolving those facts against him and you want to send it back but my question for you is at that point the district court will impose this requirement that the injuries be more than de minimis and he'll have to prove that your client do you think that's the right standard so if i'm understanding correctly if the question is whether or not  on the merits of the claim and no he does not the jurisdiction under the f t c a arises from thirteen forty six b one and thirteen forty six b one is guided by west virginia a state tort law in this case of the underlying law is state law under west i must clear i'm not asking you whether he has to prove more than de minimus injuries to get jurisdiction i'm asking you if we conclude that the district court was erroneous with respect to that argument whether to prevail on the merits in other words to make his claim under the tort claims that does he have to prove more than de minimus injuries no it is not your honor well the way split up your argument in beginning it sort of sounded like that but so i'm sorry for came off that way or if does he have to in order to to prevail on the merits of the claim he needs to meet whatever the that elements of of west virginia tort law are and those are that there was a duty of care that was breached and that he was injured somehow as a result of that injury west virginia tort law  plaintiffs to bring claims for nominal damages and there is case law to suggest that so even if if these injuries are diminished at the end of the day mr mr carter should be allowed to proceed on those claims but the court does not need to answer the question of whether or not a diminished threshold exists at all because in this case on the record it appears to be that these injuries are more then de minimis that's what i don't understand why don't you need us to answer it because if you want us to send this back to the district court don't you need us to tell the district court that the district is applying the wrong standard what good does it do you because you think you can win even under the wrong standard you want to take that chance before the district court so we believe that under any standard here whether this is a twelve year one standard twelve b sixty and or rule fifty six mr carter should still get to proceed to discovery and i'll be happy to walk to and i think i'm not asking my question right but i'm i'm i genuinely am trying to wrestle with this so please let me try one more time so you want to send this back to the district will say you made a mistake and you resolve the actual issues against the plaintive they were intertwined with the merits you can't do that fact finder says there is not more than de minimus injuries you'll be right back your rights and well that's the wrong standard so why does it makes why do you not want us to reach the question of what is the right standard right now before we send it back to a district court that will apply what you believe to be the wrong standard more than welcome to to address that question why aren't you urging us to because we don't feel like we we that is the only way to answer your question it's but isn't it the best and most efficient way for your client you kill two birds with one stone instead of dragging it out further if the score was was to decide whether the minimum standard exists or not your honor i guess i guess that is more than happy to explain the score why do men in a standard does not exist in the statute if that if the question so it's a minimal standard does not exist in the statute there's nothing in the plain language of the statute to suggest that there is a de minimus threshold to start the the plain language of the p l r a merely says that in order to bring a claim for mental or emotional injury a plaintiff must show physical injury and physical injury is not qualified in any way so in the judge about just the language you just read your so that's in section b two that's correct right in order to bring in emotional distress claim you have to show physical injury so your client as i read the complaint is bringing two claims one is for emotional distress but one is just for plain old physical injury i mean i got hurt and i want compensation for my injuries does that make any difference to you do we treat those two claims differently though those claims would be would be separate claims the physical injury aspect that claim would be controlled under section thirteen forty six p one right so there could be so i take it your position would be well obviously  injury occurred and over here that would be west virginia law so even if you know there is a a diminished bar that guide section one hundred forty six b two that would not prevent mr carter from bringing forth a claim under thirteen forty six b one but in regards to why this injury is de minimus to began with mr carter has according to the  record he he explained in his finally to the district court quote that before the incident occurred on may third my ankle was on the road to recovery it was not swollen i was no longer wearing the air caster that was given to me by medical that's the end of the quote now if you compare that to the assessment of the nurse that diagnosed him the day of his falls she concluded that he reinjured you think when she found those injuries significant enough to order a new set of x rays for his ankle and for his neck despite the fact that x rays had been conducted on those parts of his body only a short time prior furthermore a prison orthopedic surgeon concluded after the fall sometime after the falls mr surgery in order to repair is an equal and an m r i revealed that he had developed an m r i taken after the fall revealed that he had developed tendonitis and tennis in a vitus and those are more than diminish injuries by by their very persistent back to statute sure on section b two so the emotional distress claim what do you want to do there i understand there's a tell me if i'm wrong but there's a uniform line of circuit cases holding injury to bring a claim for emotional distress so what do you want to do with those cases so those cases you're on are they either ignore the plain language or ignore critical aspects of the legislative history to say they're wrong you don't think they can if you don't want  meant to curtail were those that did not manifest themselves in any type of physical way whatsoever so the types of examples that he gave were an inmate bringing a claim because he received crunchy peanut butter instead of smooth peanut butter or receiving insufficient locker space or not being allowed to go to an anniversary party it did not on the senate floor other senators did not speak at all about any de minimis standard furthermore  what i pressed you in the beginning about your claim because it seemed to me that maybe you were feeding ok you do have to have or the injury as a matter of corporate what those court but requirement to prove up your claim and i don't know the legislative history of the statute that you're dealing with thirteen forty six b two two doesn't was put in place to control those claims while thirteen hundred sixty two was put in place to control it will not might that not be a distinction i mean usually in constitutional law cases brought by prisoners there is sort of a background norm that minor trivial incidents of prison life are not actionable under the constitution under tort law the background norms are different minor injuries are usually cognize of wouldn't that be a way of maybe trying to distinguish the cases rather than just saying every other circuit is wrong but certainly could be a way to do so your honor certainly and furthermore in regards to whether or knowledge a minimum standard exists when congress wanted to qualify the  qualify physical injury there was no such qualification in section thirteen forty six b two but at the end of the day all of those questions do not even need to be reached by this court because as this court has stated in kearns when the quen the question when the jurisdictional question and a factual question are intertwined the proper thing to do is to allow a case to proceed on the merits to discovery i don't hear because causation the element of the tort in the jurisdictional question that the government claims i have a couple questions do you are you is it your position good morning may it please the court nicholas reilly for the united states i'd like to just begin by responding to a couple of points about the record in the case i think when you actually look at the medical records that are an issue here and particularly you know plaintiff drew the court's attention to  medical examination that occurred on the day of the alleged incident in may of two thousand and fourteen i think when you look at those records it's quite clear that plaintiff did not sustain any new injuries as a result of the alleged incident in fact we just look at the language of the  hours after the alleged fall and so the chronic swelling to the right ankle suggest that these physicians are treating this as a preexisting injury and that you see again throughout all of the examinations that occurred the examination reports that occurred after may have twenty fourteen the physicians continue to refer to the injury as preexisting and referred to it as having lasted almost a year as these examination reports continue i think for all of those reasons the district court conclusion that the plaintiff did not sustain any new injuries as a result of the may twenty four thousand incident was a reasonable conclusion to draw from these records i'm happy to address any specific questions the court has about was on the road to recovery prior may have twenty fourteen that road to recovery quote comes from plaintiff's brief it's not in the record and it's actually inconsistent with the medical examination reports that are in the record which say that if we just look at the march twenty eighth which is just a few weeks before the incident the march twenty eighth medical excuse me the march twenty eighth report says again not improved condition was not improved slashed the same  again i'm happy to address any questions the court might have about what's a question can you tell me i don't understand your position on this statute is it the government's position that a prisoner cannot bring any claim without more than a de minimus injury or is it that a both a physical injury and also a claim for emotional distress we don't we actually think in this case we understand the complaint and alludes to physical injury pain and suffering and emotional distress but in terms of the actual what injury i suppose i'm the nominal damages question i actually think that would be a question that would not necessarily be resolved by by west virginia law i don't want to get out ahead of of the government's position in a case where that was where that was the only claim presented but we know that the f t c a for instance squarely precludes punitive damages against the united states even if there might be available under state negligence laws do you have are you taking because i really don't understand what you want to do with the personal the actual physical injury claim in this case which i think we can all agree there's  to do with the two there's no de minimis requirement i mean isn't that just a question of west virginia law i don't think it is i think what it's because i think what you have to do and i think what the district or did here was to look at the actual allegations in the complaint and the allegations that the plaintiff made in response to the government's motion to dismiss in which he didn't identify any for instance compensatory damages stemming stemming from the physical injury the only damages and recovery that he appears to be seeking here is for pain and suffering emotional distress the kinds of things that are squarely precluded by  to require the the fish were arguing that really there is no claim in this case other than the emotional distress claim even though he does say i want compensation for physical injury but he never really details what that would look like and that's enough to keep the claim i think that's exactly right and i think that you know again he had opportunity at the district level both in his complaint he was represented many filed a complaint he was represented when the government move business here on appeal i think he's had several opportunities to detail what that recovery for the physical injury would be an in looking at the language itself that congress used congress didn't use you know the word for instance prior allegation of physical injury it said prior showing a physical injury and so i think inserting that word showing into this jurisdictional statute a statute that in factual allegations that go to jurisdiction at the twelve b one stage and that's what the government did here challenge the plaintiff factual allegations with respect to this jurisdictional requirement of the physical injury embedded in thirteen forty six b two i think that is a reasonable point in the case to resolve that question if the plaintiffs really has not presented and cannot present any evidence of if i think i feel that i didn't say my question right i understand your position about why i might be jurisdictional now would be the right time but i'm talking about whether we should read into it the word minister or not and it seems to me it's one thing to read the word in one thousand nine hundred seventy where that's a merits question and even if you can show it you can still get nominal damages you can still get  injunctive relief declaratory really no one's kicking you out of court because you couldn't meet a standard that doesn't actually show up in the statute it seems more extreme is the wrong word but  certainly the implications are much more radical if we read that into a jurisdictional statue because now you're kicked out of court altogether no injunctive relief no declaratory really no nothing but you think that doesn't make any difference to the way we should look at the two statutes i think on thirteen forty six right that's that's exactly right but i think what i was saying was just that i think all of those other cases don't draw that distinction they're just reading the language based on congress's intent they also say they all are very careful to say look we're not taking anyone out of court here you can still get declaratory relief you can still get injunctive relief this is not jurisdictional so i'm not sure that's a fair reading of the cases it does seem important to the courts in those cases that they are not foreclosing really all together as they would be if they read that  right i think i think that's a fair reading but i do think what the courts in those other cases are looking at is congress's overarching intent which was to limit the kinds of claims that could be brought by prisoners to those that involve some type of physical injury and i think on that question as to what question i asked your colleague one reason i can think of why congress might have had different things in mind is that in the constitutional context there really is this there was no law at least at the time that also required that an injury be more than to min there's a long line of prison cases and you can't bring a constitutional claim based on some minor or trivial incident or prison life but on the tort law side i mean states really vary but there's lots and lots of states where even the most minor touching is going to be enough to recover under tort misconstruing hudson so i think that you know to the extent that we're saying that you know there's a reason to apply the de minimus standard i'm sorry but that seems like not a good argument for you that might be a reason why those courts are going to have to go back and revisit what they've done under one thousand nine hundred seventy eight to the extent that they were relying on it's amendment law that has since been superseded but i don't see how that helps right i guess what i'm saying is that i think there we actually didn't cite any of the cases that relied on the the  cases what the court was doing was still looking to congress's intent in creating this physical injury requirement and it wasn't focused on the distinction between you know constitutional issues and constitutional claims and tort claims it was still saying that this physical injury requirement think that types of claims that can be brought i think that for those reasons and the analogy to the to the cases citing cases under section one thousand nine hundred seventy is appropriate here again we're talking about nearly identical language and the courts of appeals are i think for for all those reasons as well as the fact that you know again when you look at the actual record the medical records that plaintiff himself submitted here in this case we don't see any evidence of a new physical injury arising after the after may twenty fourth chain all we see are the same symptoms the same courses of treatment i think for those reasons the district court's ultimate finding that there were no new injuries here and that there simply was no physical injury sufficient to satisfy thirteen forty sixty two was reasonable if there are new further questions your honors i'd just like to clarify our position so we're asking the court to hold three things first that physical injury is controlled by thirty forty sixty one not be to the mental emotional injuries in this case are allowed to proceed or should be allowed to proceed because there is no diminished threshold to begin with and at the end of the day there is a diminished more than a de minimis injury here anyway in regards to opposing counsel's invocation of  therefore he should be allowed to proceed on the merits and that translates into more than de minimus as well i'm sorry your honor if you can clarify in regards to what you're saying under north