improper determinations of fact when analyzing the at police motions for summary judgment and therefore the decision should be reversed first i'm going to address mr tucker's excessive force claims and then i'll talk about his deliberate indifference claims now the court obviously is very familiar with the standard for summary judgment but it bears repeating here very briefly and just because of the issues in this case the summary judgment standard summary judgment is appropriate only when there is no genuine issue of material fact all inference must be drawn most favorably to the non movement movement and in this case obviously that mr tucker under andersen vs liberty lobby the court job is not to weigh the evidence and determine the truth of the truth instead the trial court purpose on summary judgment to determine whether there is a genuine issue for a trial the supreme court looks at whether an issue is in fact a genuine issue for trial versus paris in that case the court decided that there's no genuine issue of fact when the nonmoving party's statements are so blatantly contradicted by the record that no reasonable jury could believe them the most important fact in that case which is underlined by the supreme court is that there was in fact a video of the plaintiff's behavior the plaintiff's testimony and that case was so blatantly and completely contradicted by the video that no reasonable jury could have believed his testimony this court had applied the standards and got versus terrorist a few times and most of those cases also involve irre evidence including videos or sound recordings however this court has addressed that standard in one case that doesn't involve such irrefutable evidence and that case was reversed of st charles and that case this court held that the fact finder cannot resort not whether or not mr tucker has presented an issue of material fact for trial saying this case is unlike that presented and read and read a third party completely independent doctor had examined the plaintiff and found that the injury that he was claiming just couldn't have happened the way that he said it did and the plaintiff himself in that case entered a guilty plea on the on the resisting arrest charge which is the situation in which he claims he was  now mr tucker's case is excessive force don't they come in two different postures though in scott wasn't it he were a qualified immunity had been granted and here and read was in the situation where summary judgment had been entered for the defendants doesn't that make a difference as to whether we apply readers or not you are i believe first of all i believe the court should continue to apply read i just think that it distinguishable from this case that it wouldn't apply well ok but aren't we left pretty much here with his unsubstantiated allegation of the karate chop to the nose your honor no we are not left correct but we only have we also have his contemporaneous i think grievance form where he didn't include that right i believe his grievance form primarily disgust with the injury to his back that he doesn't talk about being smacked in the we have other than his unsubstantiated allegation on the no strike and then you can tell me about the back sure sure a witness testimony or parties testimony is still evidence in a case we have mr tucker's testimony which is evidence that he was struck by nurse anderson on the other side we have nursed washburn's testimony that he was not struck by our sanderson nurse anderson states that she doesn't remember anything about the january seventh code so what we have here is just a normal civil dispute that's present and so many different cases where the plaintiff has his version of events and the defense is presenting a separate version of events there are no photographs no video no kind of evidence like that showing whether or not nurse anderson did strike mr tucker in the nose and because dragging and dropping on the box again we have one witness testimony against another we also had the altercation form which which substantiate mr tucker's the altar cation form was an injury a continuation are a scratch to his back and mr tucker continued to complain about pain in his back for some time after he was dropped these dispute you'll see from the construction of that that the mr tucker does not have to prove intent first of all and the trial court discusses that length whether or not he was able to prove intent on the part of the nurses these this application of force was not rationally related to a legitimate purpose the nurses both claim that they were responding to a code however there is no reason in a situation where none of the parties are arguing that mr  not yelling he was not resisting in any way there is no reason that he would need to suffer a strike to the nose and then be violently dragged and dropped onto his bunk and he was dropped on to the bed not the floor right correct yes any evidence from how high he was drunk he testified that they sort of dragged him and that'll wake him up and before he was before she even responded to the coach she made a comment about how tucker again this even if this court did require intent those types of statements when viewed in the light most favorable to mr tucker can show intent by nurse anderson to harm him however we do submit that intent is not required  excessive force because she was injured at the hands of prison officials and their application of force was not rationally related to a legitimate purpose of treating him as a deliberate indifference to i'm fact when it comes to the deliberate indifference claimed is the date on which the wound on his stomach was actually examined by dr johnson mr tucker testified that he had a painful wound on a stomach when he came to the jail in september the wound was bloody and very painful mr tucker not only testify to this in his deposition he told jail officials and dr johnson time and time again about this wound on his stomach that was possibly affect you can see on his critical care intake form from october sixteenth that he complained of quote a hole in his stomach which is consistent with what he complained of consistently in his that in his grievance forms that his request for medical care the medical records do you c e on october sixteenth that dr johnson examined his abdomen i can see we can see that dr johnson perform some examination however we do not concede that he actually visited visually inspected the  about the appearance of the wound or the wound itself the medical record only discusses that mr mr tucker's ballasts sounds were normal and that his abdomen was not distended i think all of us have had a situation in which a doctor has listened to our stomach over our shirts and does mr tucker to testify to that mr tucker testified that dr johnson did not examine the wound on sixteenth when he first saw him so by implication  sheriff holiday chief morgan nurse mill and nurse washburn to go in the order of the appellate arguments the excessive force claim against north washburne that the district court applied the current correct analysis and asked the question did this force amount to punishment or was it something rationally related to a legitimate government interest and was the force excessive in the context of that purpose the court first found there was no expressed intent to punish but that's true the appellant admitted that he believed n washburn was there to help him she was responding to a code he admitted north washburn didn't say anything during the course of her response that made him believe she wanted to hurt him he admitted that she intended and wanted to help him and so the judge woman i think you pointed out correctly this really gets into why did he get dropped  had transpired after mr tucker had been moved from the hard concrete floor where they found him moved him to his bunk i believe he testified that nurse a nurse and said when she was leaving the unit evidence of any excessive force without any showing of intent i think he if he was dropped i think it was as a result of negligence an accident frankly the second point on that is that there's  now pointed to a hip injury that is in the medical records i don't believe mr tucker ever complained of that and therefore there is no direct evidence that that hip injury happened  to the deliberate indifference claim that's primarily directed at dr johnson but chief morgan did review some grievances filed by mr tucker complaining that he wasn't getting the medical care he needed by the time chief morgan received the grievance and reviewed the grievance officer response it was clear to  him that mr tucker wrote the grievance the first time before he saw dr johnson he then saw dr johnson was resumed on his free world medication also given some pain medication there's evidence  mr tucker's medical needs and there was nothing from the record that would cause him concern to think he needed to second guess dr johnson or do more in this case you know i also believe dr johnson himself was not deliberately indifferent and without any finding that dr johnson was deliberately indifferent i don't think chief morgan or the sheriff or anyone can have been the any liability they certainly shouldn't be charged with directing dr johnson to change the way he treats patients unless dr johnson's conduct is deliberately indifferent and if i may i need to reserve a little time for the other athletes girl thank you please the court my name is katherine corliss and i represent dr johnson in this action i apologize a little bit for going out of order we didn't know exactly which direction the appellant would go into day so i have to address the deliberate indifference first the court discussed quite a bit though during the discussion about excessive force about unsubstantiated evidence that's not the situation we have here we don't have a himself has offered contradictory testimony and therefore i believe what the most important evidence is is that when i asked mr tucker in his deposition did dr johnson examine this wound the woman that the small thread that was picking out of it that had a small amount of blood that was coming out of a small amount of pus coming out of it he said that yes in fact dr johnson did now has he said it other times the dr johnson didn't do that absolutely he said it in the complaint he said it in some grievance forms he said it at another time during his deposition but i guess the question is at what point in time was your question referring to correct well my my specific question well let me back up there's two parts that are important to that first of all when mr tucker a private at the jail september two thousand and nine i asked him in his deposition at that time was the area around the thread infected and he said not really so at that time he has all these other problems lupus colon cancer needs to have his infuser poor flushed various other problems the dr johnson's addressing but then when i ask him you johnson the thread to have some infection around it the first or second time you saw dr johnson after you were incarcerated in september two thousand and nine and he says yes ma'am so the first or second time that he was seen by dr johnson and i will note that that note from october sixteenth when dr johnson examine the abdomen and it does note that mr tucker mentions this sticking out from his abdomen to read anything other it to read into that anything other than that that dr johnson would have examined not only just the abdomen but also this thread that he's complaining about of the the problem is dr johnson testified he didn't recall correct johnson does not recall whether or not he examined it at that time but i believe based on mr tucker's testimony that by the time that the thread was actually infected and at that he complained about it he was given bandages infected wound the proper treatments were provided can we parse down exactly what date that happened on i don't think we can but i think that it's telling that when he got to the jail mr  road was not very infected and by the time that it was infected by the time he reported it to dr johnson by the time dr johnson takes a look at it then mr tucker himself admitted in his deposition that was he appropriately treated for it i'm not sure because appellate brief didn't make very clear to me whether there is an argument here as to whether or not a different standard should apply to pretrial detainees as opposed to post trial detainees  as far as medical care is concerned in this case however for all the reasons that i've stated i believe that dr johnson is still entitled to summary judgment in his favor even if we applied that heightened standard for a pretrial detainees that would mean that would have to show that the action was not reasonably i'm sorry appellant would have had to show that the action was not reasonably related to a legitimate goal or  that he had while he was there at the jail all of these things were done for a legitimate medical purposes and unless your honour's have questions i have to pass it on over to mr thompson very well thank you thank you sorry the no no disputes that were there were material on the genuine issue of fact and the district court relied on scott versus harris and reverses to st charles missouri which proposition that when a point of offers only his unsubstantiated self serving allegations and that lightly contradicts all other evidence of record the court need not accept the plaintiff's version of the facts as true now the plaintiff would like to characterize scott vs hairs as being some sort of special rule based on what the defendant offered in support of his motion for summary judgment but in fact scott versus harris starts out by saying that starts out by from the proposition of the defendant has already carried there an initial burden of proof on the motion for summary judgment so scott versus harrison reed are about what does the plaintiffs have to offer to defeat other witnesses and i believe the response was the response was yes but that goes to the white butt in moody vs st charles county this court look specifically at the questions the appellant had failed to ask during some depositions and look at the evidence that the opponent had failed to do the developer and the fact of the matter was there were four or five people beyond the main parties in this case who witnessed this and not one of them was deposed not one of their testimony was offered so we truly are left with only point it's unsubstantiated allegation and if there were something is true with respect to the drop in mind that why when you have his testimony plus you have a scratches or injury on his on his back why isn't that enough or your honor the alter case inform actually says it was a skin scrape to the left here and i wrote this down because i wanted to make sure i could get it when it was asked in his deposition first he was asked if he could if he had any visible injuries to his back in his general response was i can't see my back sorry i i wouldn't know then he was asked did you have and this is quoting did you have any other bruises or anything on any other part of your body that resulted in this episode where they dropped him answer no sir i had some other source and stuff but it wasn't from that hit in his own deposition testimony he conceded that any other stores and stuff were not from that were not from this incident so he has no injury and that brings me to the second point up to the extent there are any disputes they are not material this case has to be considered in the context when it was occurred  admitted that they were rushing to help him so except every word the point of his said as truth and when you consider that they are rushing to respond to a medical emergency they're flying treatment that admittedly were choir's physical contact applying an simply is no evidence that he suffered any injury and in fact in chambers first pick up this court left it is an open question whether you could have an excessive force claim with no injury and with that is presented here and i would say in thank you very much if i could just address a couple of points raised by the athletes in that case a couple of them mentioned that they want to minimize the value at the altercation form because there's that the back of mr that the the location of the circle on the altercation form is not of the type that so overwhelming it could completely overcome mr mr tucker's testimony and his grievance for s concerning his injury my other point is that dr johnson's counsel admitted that we can't pin down exactly when dr johnson examined the infected thread and mr tucker that calls to mind the case the hartsville case decided by this court in which a a prisoner was not given medical attention for an infection for approximately six weeks mr tucker testified that his wound was already around the time that he came to the jail he reported he reported these injuries as of september thirtieth at the latest and he did not receive he contends that he did not receive treatment for that delay no your honor the court did not require verify medical evidence in hartsfield that in that case the infection was to veer enough that a layperson could recognize the seriousness of the injury and the need for a doctor's attention and  we would contend that this case is actually more analogous to hartsfield which also involves a an infection and additionally the laughlin case i don't believe was decided and we were taken under consideration