john goodman on the half of plaintiff below and appellant here richard garcia there's this is a review of the grant of a summary judgment below the federal rules of civil procedure fifty c requires the court to consider whether the pleadings the depositions the affidavits and all the other evidence submitted in opposition to the summary judgment raese triable trial issue of genuine facts now the standard of review in a case like show that he made those requests and they were not complied with there is a citation in the record to officer rags nick who testified in his deposition that garcia asked to use the restroom that a supervisor needed to take him to the restroom and that officer reg next rags nick notified the supervisor that mr garcia had estes the restroom that's in the record now negligence does help you and that's what you're arguing is that there are genuine issues of material fact here is to whether they were negligent c there's this is what i'm trying to get at it's even worse if you had a situation under a one nine hundred eighty three action and somebody just screwed up they made a mistake somebody told somebody take him to the bathroom he thought somebody else was doing it that's negligence that doesn't get you there because that's not a constitutional violation under the federal tort claims act however negligence is a factor and is the key factor and you are are you kind of in your brief we're arguing almost in one thousand nine hundred three case and but i i think you really federal tort claims act case here i think i'm trying to stress mostly the battery cause of action because that's really the crux of this case all right so that gets me to my question you have asserted a number of claims negligence assault battery intentional infliction of emotional distress what claims are you challenging on have committed a crime they take him he's a paraplegic he has no use of his legs whatsoever they make him sit in his wheelchair in a small confined room he asked to use either didn't have one or they deliberately withheld it from him so you indicated that the crux of your claim as you see it is a battery which under california law requires sent offense and contact what is your theory and the materially disputed facts that demonstrate an offense of contact tensional act which causes a harmful or offense of contact with the plaintiff person the contact here is when you force a man who is just the launch contact is the handcuffing no you have the contact of the feces with his body there are x caused that do you have a case that would support that theory under california law i think and  i did look for a case regarding those kind of specific facts and that doesn't really exist i'm just going off the basic rules about battery you know as offensive as it sounds it is a poor and it is it appears on on its fa mean nobody would want to see that happened anyone that doesn't appear to me to be a battery under california law i mean not in the chaining you may have an argument i don't know you to look at that but just him death and kidding on himself as bad as that is that's that's something he did that's not something they did to him other than to keep him in a space so that may be another cause of action that you have but i'm having a hard time seeing that as a battery well let's break it down that reason intentional act which causes a harmful or if fence of contact where you're asking haven't you have a lot of arguments here i'm just wondering whether you're really firing your gun at the right one i have not found a case where confining someone so that they were forced to  on themselves and sit in it for hours and then take a bumpy ride and there are many dogs like that there are many causes of action that support that type of circumstance but i'm having a hard time seeing battery is one of them there are cases that are for example a gentleman standing there with the use of a king they don't touch him but they touch is cain and he falls when the cane is knocked oh that's  touching somebody with something that they have in their hand here you have a physical touching that they caused every bit as much as if they flew it at him ok well sounds pretty important to me that someone would be left in that condition that is not saying it's ok we're talking here about a particular rise cause of action under the law that usually requires a physical touching is complaint there's also the intentional infliction of severe emotional distress because of action and in that case you have to have extreme and outrageous conduct by the government which we have here which causes severe emotional california as well yes that requires some physical harm or well i think every tour requires there to be damages and i don't think it has to be physical harm they're just  for negligence every state is different i mean negligence applies not just in personal injury actions it applies in property damage so there has to be some kind of damage in negligence but it doesn't have to be physical harm but here it's undisputed that once he finally got to alvarado hospital and his wife was able to clean him up a little bit peeling the dried excrement off of his body peeled the skin off and caused him to bleed so you have it established here i don't even think there's it's a stablish it's not even questioned by anybody i think the basic fa here are undisputable i think garcia should almost be entitled to summary judgment not the other way around there's no question they kept him in that little room another another fact regarding the conduct here it's very different when you're a paraplegic and you're sitting in a wheelchair you cannot use your legs to hold your body up all your weight is just sitting on your bottom maybe you have a little bit of control with your arms trying within your legs up and do that for ten hours it's painful he was having back pain now the government didn't mind that in this case because it was hopeful to them for their interrogation later on and they used it in their interrogation there's no question about those facts after seven and a half hours they waited seven and half hours before starting an interrogation while he's sitting in this feces and urine in pain from his back deprived of his medications then they start interrogating him it's very clear he asked for help at that point they give him nothing they just continue their interrogations then they decide to arrest him and chain that the government reached its duty to transport mr garcia in a in a safe manner secondly mr garcia claimed that the government breached th duty to handle him in a safe manner during his interrogation now with respect to the first claim regarding safe transport an ambulance was called for mr garcia mr garcia did not for some reason want to lie down in the gurney but would have rather continued sitting in his wheelchair he asked for a fan wheelchair accessible van but it was with then the arresting officers discretion to determine the method of transport for mr garcia which he determined the bath the best correct your honor but prior to that prior to when he was having his conversation with special agent beals he informed mr beale's that he would like to lay down so the ambulance was called and he was able to lay down gurney it was only after the ambulance was called that then he said no that he wanted to sit up now with respect to the cuff and he got to the gurney and then they took him off of the gurney and put him back in his wheelchair no your honor after it was it's very confusing here yes your honor after it was determined that mr garcia would be arrested the ambulance was called and mr garcia placed himself on the gurney all right and it was honey right that's what i just said it is a g in a wheelchair correct your honor yes per his declaration he says my my laken arm were handcuffed to the gurney guardrails which left him this left me in a very vulnerable position i'm able to control my body movement whatsoever and that causes injuries to evidence in the record that transporting him via van per his request which would then allow him to sit in his wheelchair would not cause the same sort of injuries there is no evidence in the record to that extent your honor and in fact there is no evidence that mr garcia suffered any sort of injury as a result of being cuffed to the gurney he never complained that the cups were too tight there were no visit visible marks on his injury alleged in the record what he said your honor was that he was an able to control his body movements on the bumpy ride from to cody to the hospital in san diego but while it may have been uncomfortable there's no evidence at all that he in fact suffered any physical injury of of any sort whatsoever and as a matter of fact when he was assessed in the emergency room at the hospital krop he told dr kraus the emergency room physician that he was not in any pain that he did not have any complaints but that he was only a little bit tired and the medical records that are in the also showed us putting from my perspective battery aside for a moment what about this whole issue of keeping him in a small room for any exorbitant about a time eight ten hours no use of the bathroom how do you explain that yes your hon of first of all with respect to the length of the detention this was out to cody which is a very long distance from san diego it's pretty much out in the middle of nowhere and it did take quite a bit of time for the agents actually what the record says first of all mr garcia testified that he never asked to use the restroom that he only asked to talk to the supervisor officer rag sack that's in the residence his yes that is in the record your honor that is in the record to xor sixty two and again at ninety two to ninety three officer reg sack testified that on one occasion mr garcia stated that he needed to use the restroom but wanted to talk to the supervisor a supervisor did talk to mr garcia but mr garcia never asked for assistance to use the restroom and in  fact mr garcia is an able to use a restroom without assistance now with respect to whether or not there was an accessible restroom there is no evidence in the record whatsoever that states that there is no accessible restroom at the port of entry officer ranks second did testify that there was one restroom inside of the security office which miss which mr hernandez didn't use because he asked and that there was also a restroom outside of the security office to which which detainees could use if they were accompanied but again mr garcia was never denied the use of the restroom at most he only stated on one occasion that he needed the restroom but wanted to talk to a supervisor and mr reg sec officer exec did provide the supervisor to mr garcia officer but he never at mr garcia never asked officer caetano to use the restroom your honour's with respect to i'd like to turn to the battery and claim briefly in the district court mr garcia argued two bases for his battery claim number one that he grabbed that officer beals grabbed his shoulder and threw him onto the gurney the district court ruled that that declaration testimony  garcia was a sham because it contradicted his deposition testimony where he testified that he was that mr garcia was in fact never touched by any agent federal agent and as a sham secondly with respect to the coughing which we've already addressed to some extent again it was with an officer feels discretion to restrain mr garcia in a reasonable manner and again there will be no it was a beg your pardon your honor graham from doing one well your honor mr garcia claims that he was not able to move his legs and therefore was not a flight risk however we need to keep in mind that mr garcia was transported in the ambulance without an accompanying officer in the ambulance a special agent beals was following the ambulance in a car behind and it was special agent beals duty to ensure the safety not only of mr garcia but the ambulance personnel and it is important that special agent beals never underestimate  what the potential potential actions of someone who is under arrest can can have and mr garcia was arrested for carrying a loaded firearm across the border he had friends and little to they were afraid he would get up and run out of the house perhaps not your honor however there always is the possibility that he could cause harm to hospital personnel or that others may assist his escape it certainly was not on reasonable at the time and again there was no harm done by mr to mr garcia by the handcuffing your honour's we would request that the because mr garcia did not establish a prima facie case for any of his claims that the district court judgment be a fund thank you we'll give you a li and first of all concerning mr garcia wanting to lie down he had been asking for hours and hours mr beales the agent and a couple other agents didn't arrive until he had been in that testimony where he said he never requested to use the restroom with which you're relying on his one excerpt from the record from the defendant essentially to try to impeach your own client it appears so what you keep telling is he repeatedly requested to use the restroom where is that in the record i can only show in the record one time when he was in the right and that was the one the counsel just discussed where he mentioned that he wanted to use a restroom but he wanted to talk to a supervisor first and then never requested it of the supervisor that's in the record that's inaccurate it isn't ok so where is your citation in the record to these multiple times where you just said there was he requested to use the restroom now your conversations with him yesterday i'm talking about in the record time i can only interpret what was going through mr garcia's mind no that's not what i asked was asked led through the fax and at this time did you ask to use the bathroom no after he was told by officer rags that they had to ask a supervisor he kept asking to see a supervisor now if mr caetano did come up and speak to him never identified where she mentioned she cited to the record where he did so ok does it is she wrong assuming he did i can't say he didn't he didn't say i'm the supervisor what can i do for him the supervisor you've been asking for he's just another one of the border patrol agents there and mr garcia at that point had been told he wanted to see a supervisor only be that he did say i'm the supervisor on but she's counsel cited as to the record where that he did talk to the supervisor so good that's wrong if if that's the case again all you have is a conflict in appeal on that was not excluded by the trial court because there were some contradictions in his deposition is off the rag and extent the testimony that he asked to use the restroom so undisputed he was not allowed to use a restroom that you were not the attorney below i was not all right so that may explain your urine for millionaire the with the record well i'm familiar with the record i'm not familiar with things that aren't in the record and i'm you know well one thing restroom and he's not allowed to use it still go and then you know it's at the ten hour point when he is that you're getting on that gurney one way or another  you never stated he did not need to use the restroom she said that i agree that is that he sham declaration that's just not the case i agree there was a conflict in the testimony in the statements i have officer ranks and it clearly stating yes use the restroom we have tape recording other evidence yes agent beals to use the restroom undisputed he never was allowed to use it is is that not actionable the government can do this to a person can find them in a room and it's not actionable i just cannot fathom a civilized society allowing that to happen and not having there be a cause of action for it we all have to say