pertains to my client appellant jay smeltz is whether apple levy's the plaintiffs below can pursue is a fourteenth amendment excessive force claim on behalf of a pretrial detainee without alleging any injury let alone to minimize injury because not every malevolent touch by a prison guard gives rise to a federal cause of action the district court erred in failing to dismiss th count against smelts arising out of the shop because such conduct cannot be said to shock the twelve b six case right yes your honor so the only question here is whether there's enough in the complaint to get their individual dies so i have to tell you i find the word possibility as the key touched i find the arguments on your side of the case all basically implausible i  taney to his cell is whether that show of constitutes excessive force or context it's all context in context is going to come out in the in discovery you know you've you shove someone next to ten foot drop big risk you shove someone when they're an inch away from a wall far bigger risks than when they're not so i mean i just can't imagine how you could think we're going to throw this out at twelve be six if there was an injury alleged any entry i'm not saying it has to be a serious injury a significant injury doesn't have to be a physical injury can be a psychological injury but the fact that there is no injury whatsoever alleged in the complaint as to the sh in our view means that they have failed to state a plausible cause of action for excessive force as to the shove and that this is nothing to do with the if something in an excessive force case you know we do draw from more than one amendment but i think you would agree with you that the eighth amendment is generally before of what we were talking about in the fourth amendment well as a pretrial detainees the six fourteenth amendment that that is the standard of evidence the courts say that the eighth and the fourteenth standards are essentially the same no so we've got the let's look at the item in the standard on excessive force isn't the focus the being intent behind the force and less the extent of the injury there are clearly two parts to the eighth amendment analysis the objective in the subjective in the objective certainly goes to the intent of the act well if if the if the governing standard is whether it's the intent to be at whether the force was used maliciously and sadistically or as a part of a good faith effort to also so that he falls day on his shuffling down the hallway and you have this show that syncing to the floor how it's an effort to maintain discipline or to restore discipline well i think it's different from a fourth amendment case and then you're moving up to mimic case and these pretrial detainees and in under the eighth amendment they give up certain rights they give up rights to be protected from from every single shove that might constitute a battery offensive touching can be a state tort battery but we're not there are you or i want you to go to the intent issue because that's what the i thought the minutes is that's without question the tougher standard so so the question or less protected status because it's an inmate we have a pretrial the tiny who falls in that gray area between three citizen and and you've got him walking down the hall you are looking at the intent of the force he's completely subdued he can't go anywhere and he's shoved so hard that he hits the ground and cannot protect himself from that hits the concrete floor we can presume that it was malevolent but my argument is that not every malevolent touch not every show of that done in bad faith can constitute a constitutional violation let everyone injury would that me that's why you need facts that's why you need to scupper that's why you need to depose the officers to post you know any other witnesses that the fact the that you keep quoting it not every one of these shows satisfies it some do some don't that's the implication they say in the complaint this one does so i just i'm just totally missing how if we don't go to discovery to get the witnesses and figure out exactly what happened not because there is no injury there's no injury alleged so they have not stated a claim it's be like a car accident case i was in a car accident so i want damages but there's there's no allegation in that same car accident case about an injury there's been no injury alleged here related to the shop at all so why is that always necessarily true at the twelve b six stage so for example i mean you can have a situation where it's ridiculous you know it's almost the whole day he's not thrown out of court if he comes back if all he says is this was malevolent they had no right to do this it's sadistic cetera and in th state comes back and says well he's ok we just looked at him you know he's ok it wasn't it wasn't a great thing for him to have to suffer through being out in the blazing sun for you know change to this poaching to this pose but he has no lasting injuries he would throw that out i think that is similar to the pelphrey case in the six circuit here where it was more of a psychological injury where they were talking this prisoner they were cutting his hair and joking about him laughing at him and he was fine there was no physical injury nothing there has to be a physical injury there has to be some injury it could be psychological it could be threatened with harm it could be a trifling physical injury but there has to be some injury alleged even in the handcuff cases under the fourth amendment which is a lower standard you have to at least allege some injury for that's handcuffed you said that in those cases i don't think we said that for all cases i know i know what you're talking about me handcuffing cases but the fact that sources specific about it there seems kind of damaging to the other cases i would point to this course decision in a little leery versus livingston in two thousand and eight where the court concluded that was a karate chop supposedly  and the testimony from that from that inmate or that pretrial the tiny was that it didn't hurt and i kind of joked with the guy about it and i'm struggling to see how beth has any  applicability here to me this is the admission in the larry case it did not hurt is identical to the allegation or the lack thereof in this second amended complaint that there was no injury it's just a shove in the there is analogous in the complaint that there was no injury that's all you've got we don't have discovery has there's an absence of an allegation this habit maybe this case is one off because he ultimately dies you know what we're really going to say in a setting where the first claim relates to one officer who shows them it's had on the floor and then moments later the choke hold and he dies and when i want to throw the complain now because the plaintiffs didn't try to figure out exactly what the injury was before he died and that seems like just totally bizarre while they've had three attempts that there's clearly an injury there's kind of a lasting one and you're supposed to identify exactly what the injury was besides saying understand the point but i taught totally agreeing with you your promise that your client is the key person on the first incident another officer the key person the second incident i'm just making a point seems very said thank you at least have to allege an injury in those cases was shoved into walls but there's al again how do you respond to the supreme court's decisions in hudson and wilkins that clearly say the issue here is less the injury the issue is whether the force a plot was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically to cause harm that's the standard you have to me minimus not just whether the injury was de minimus so the courts are getting away from the injury analysis although you know relegation that he pushed a guy in change so hard that he hit i think the wall and then the concrete floor and that's not an allegation that sufficient without an injury it may be a battery it's an offensive touching but let's hear from the others so what you'll get i remember you get your minute of rebuttal so thank you to qualified immunity that is we're dealing with a case of a pretrial detainee but is amanda why does it make a difference in a twelve b six case i'm sorry on why does that make a difference in a twelve b six case either way that particularly as to your client i have no idea how this does not get to discovery and that's your base that's your burden or position your honor is that to you have to be focused on the complaint as to why you don't move to the next stage and indeed we are your honor the complaint alleges that john gray acted to restrain mr ben only after benton continued to resist after engaging in a course of combative conduct throughout that morning that walking down the hallway with this pretrial detention he and in all imaginable methods of of restraining he is unquestionably  why we disagree your honor then then tell me how a man walking down the hall in chains handcuffs leg irons belly chain is not subdued the claims with respect to john gray relate to what occurred in the medical cell in the medical cell the officers were attempting to remove the restraints from mr ben he continued to resist the legitimate commands of law enforcement officers was able to  remove the restraints well they were obvious answer they were commanded by the jail policy judge to remove the sprains and they were acting reasonably while the inmate was in the cell wait but you have the option a is leaving them or strain option b is a fatal choke hold and you pick option because you have to know the test judge here is whether mr gray's conduct under the fourteenth amendment was malicious and sadistic for the very purpose of causing slave there's enough in the pool in the complaint to plead the constitutional violation how could you possibly throw this out it's will be six a match as well as me away well because your honor that the district to have to go back you just can't leverage that mistake into granting the motion to dismiss we would turn the court's attention to multiple cases that we cited in our brief where the pretrial detainee was actively resisting efforts legitimate commands of law enforcement officers while restraint and the and multiple district courts within the circuit have found that it is constitutionally permissible to tase a suspect under court previously said should only have caused him to lose consciousness was a reasonable measure under the circumstance and when he continued to apply it when a fellow officer said to stop why does that not indicate that even under your argument that this this prieto the tiny was subdued and he should stop championing the complaint does not even make an allegation about the duration of the hole to hold this officer t and that rises the level to a of a negligence claim it doesn't shock the conscience it doesn't demonstrate that his conduct to a b malicious and sadistic for the very purpose of causing harm then why if he knew that he had not done something improper did he not been seek medical care for mr benton and why did he lie about it to the f b i if he knew it was not impossible well he we would submit he was convicted of a charge of making a false statement for filing a report that said benton resisted and he used reasonable force to restrain him there was no lie there and there wasn't a mission of the specific and that mr benton monder standing his testimony was that and then mr benton was up and moving around after the choko was over i don't was there not i think there was a statement that he was he was moving within the cell judge but he was moving within the trial it's we're getting a little far afield of the complaint which of course this is being decided upon but we submit that under the facts taken as true as played in the complaint gray's actions were a reasonable help would also prevail the like of that direction it is your and their budget will tell me how it doesn't work in the other direction however the basis for the allegation against sheriff tell rests upon statute three eleven point five which is an ohio statutory provision which specifically deals with holding the sheriff liable for the actions of its deputies but only under certain circumstances there it talks about whether or not the sheriff was involved whether or he participated in it whether or not he ordered it of course if the complaint says tell that he was made aware and have full knowledge of the assault on benton and yet ratified it by silence why isn't that seems to fit exactly the way around the ohio immunity and that's it's a again a complaint that's all it is it's a complaint and the norm is to let complaints proceed to discovery certainly understand that your honor relative to the standard that we're here the underlying action to set forth the fundamental factual allegations now the allegation through a rule like this you give notice you provide information so that the parties know what the accusations are and needs to be a basic fundamental factual detail that is set forth that same court goes on to talk about whether or not there are threadbare allegations whether they are simple legal statements when we look at the statements in the arguments in their presentation they cite to certain provisions of paragraph forty one forty two forty five those in it is our position your honor our actually legal allegations are nothing more than a fundamental restatement of the elements of the claim as opposed to the factual basis for the individual claims it is ultimately the plaintiff's obligation if they are going to pursue a claim against sheriff to help to lay sufficient factual foundation and that's where your honor with all reduced respect i believe when all it's all context pacific and they have to do enough facts to make it possible allegation and you know what i read to you i can't imagine not sufficing the are when i statement of knowledge where it doesn't you know where i had full knowledge of this saw and i'm bent but within that very same sentence your honor goes on to say but nothing nonetheless intentionally and deliberately made false statements your i believe that is a legal statement a factual statement if they are to prevail against and set forth a sufficient factual foundation against sheriff tell it needs to be set out in detail it's not something they have done they  ation of the actual acts itself that would in and of itself perhaps be an independent cause of action which was not alleged but it was certainly not one that constitutes a ratification of particular acts and circumstances are ultimately it's our position we look at the precedent that's come down to the trombley decisions and it all decisions that you have to tear apart these complaints and look to make sure that there is a sufficient factual predicate and how do you account for the law that is both both rule of eight and case law that very frequently speaks in terms of viewing the allegations of the complaint as a whole are is your argument that you need to take each factual allegation and we paid it in each numbered paragraph no your honor i believe rule ten see what address that is so long as it's properly incorporated they're there but specifically where and so you have here allegations in the complaint that that officers under took these inappropriate actions and an allegation that sheriff ten well ratified by continuing the law and replicating the law about those actions not having occurred why isn't that enough to begin your own or even within the context of that relate see it were taught by notice pleadings but even notice pleadings require a fundamental basis of having sufficient amount of facts that are that are alleged it's not it's our position that these are simply legal allegations that exist here and that they are not it when you look at the exact statement itself it needs to be looked at it it's in its entire context i don't believe it's appropriate that you can piecemeal or should piecemeal out sections of a sentence in itself i believe they have to look at the entire sentence at least at least in that particular context and when you look at paragraph forty you look at the other paragraphs that they cited within there you read but it's going on for a while joe thank you very much thank you your honor appreciat please the court my name is apu paul i represent the police in this case just to address a couple of the arguments that were made by the appellants in this matter as to the allegation of injury we have attached the indictment it in the indictment there's a mention of injury yes and we incorporated the allegations into the indict from the indictment into the complaint we attach that as a document and therefore that's a part of the complaint we allege injury there and so that we submit that the fact that he was knocked into the wall and fell to the ground and not being able to break the fall itself is sufficient to allege injury but the fact that we attach the indictment to the completed says very specifically bodily injury so i think it's beyond the pale to suggest  left that points anything else as far as the ratification is concerned paragraph forty nine of our brief in paragraph forty three forty eight in the complaint alleges exactly statement by statement by statement by statement as to how the  that have passed the motion to dismiss in that we've said that those the failure to train in the defacto custom and policy allowing access i think your friend on the other side concedes as to the federal claim it's derivative right in other words if the other two when he wins if the other two loses he loses it will be six on the federal claim brecht correct your honor is frankly we simply do not kill people who are awaiting their day in court and that's exactly what happened here if there's any case or cries out for a denial of immunity what's the should we worry about this standard at this point in the case because i mean there's two different ways to think about this one way is to say this is just twelve b six no matter what the district court did that doesn't require us to do anything other than what you normally do in twelve b six which is just analyze the complaint and is there enough here to get to the next stage in twelve the six is not necessarily the time to sort through exactly what the standard is for excessive force against a pretrial detainees that's option one option two is to delve into what the standard is for pretrial the teenie even though it's just twelve b six and it's not necessary to figure out whether to affirm so what should we do here and why i agree with the first but assuming that we do the second your honor the which do you which would you prefer so i would prefer the first i would prefer the first affirm and don't get into the standard affirm and don't get into the center but to the extent that this court does go into the standard the question here is whether we have stated enough in the complaint to meet the standard that they are otherwise not immune now that's not what so if you a case you've told us your preference but but what i'm really more interested in is if we do get into the second thing why would you think the proper standard is the proper standard under these facts is the fourteenth amendment deliberate indifference to the federal shocks the conscience well your honor under under the claybrook case the shock the conscience there are two prongs of the shock the conscious inquiry the first hand is the malicious and sadistic and that applies in certain circumstances for example under the bud case and the derek case from this circuit the malicious and sadistic standard applies where there's emergency circumstances where there needs to be where there's combativeness where there's an emergency circumstances dangerous rapidly evolving circumstances such as for examples of this court prolonged gunfights prison riots police chases demonstrations that turn violent and what they have done the defendants have done in their argument with respect to the immunity issue is converted this otherwise ordinary run of the mill detainee transfer into something that's otherwise violent that's not the case in circumstances that are not so emergent as though situation we use the standard under the fourteenth amendment the deliberate indifference to federally protected rights that's just you when you consider that easier for you to meet than shocks the conscience i take it well yes because well they're both under under the applicable cases those the and the deliberate indifference or by two different prongs of the fourteenth amendment shocks the conscience test that's under claybrook bud and daraa what we're suggest we're suggesting your answer should be just no worries i don't care what you were to use the same thing well they're the friend they're the same thing we meet either stop the circumstances the difference is the governing circumstances whether there is time to think correct whether there is time to contemplate or whether you are in an emergency situation in which you must act immediately in this yes your honor in this circumstance there was no emergency situation i started totally get that i agree with that let's assume you're exactly right on that that lead you to say the standard is  words you want to use to disallow have a standard they need to meet then they need to say they need to meet the standard that their actions were not to deliberately indifferent to my client's constitutional rights in this circumstance they meet the the lowest they can't pass the eighth amendment test which is the lowest they can't pass the malicious and sadistic problem of the fourteenth amendment and they can't even pass the deliberate indifference test they were clearly deliberate it's my sense that it was cruel and unusual it doesn't pass the eighth amendment they surely don't pass the deliberate indifference test in this circumstance everything they did shock the conscience such that it was malicious insisted we just even you would agree that that the fourteenth against a pretrial detainee is for punishment purposes it's not it's they exceed the standard and they are not and immunized so if it fourteenth amendment that operates almost as a floor as a floor let them standard yes your honor yes your honor so in this case we think it's as clear as day that their conduct doesn't pass any test they basically latch on to any i mean this if so we don't let's just go back to the first option we don't get into all of this now maybe we do as a mouse case we get in to it if this case doesn't so might not be about ideas for it to settle but let's assume that doesn't happen so you go back and let's say we've we've maybe we just say we're not sure the just court was right about this assessment of the standard for the sake of argument is that going to affect discovery i mean is it going to make much of a difference in terms of discovery that we do not lay out exactly what the standard is you know i'm just trying to fit you don't think it will no it doesn't make a difference when you come to summary judgment well we'll argue we need to be argued before the trial court and summary judgment in the trial court will rule and then we might come back the appeal of either way it'll be appealed on except i might see you hopefully in two years maybe i don't know but but the fact remains in this case the complaint has said far more than enough to meet any standard the guy was killed because he was squirming under any standard your honour's under any standard we needed well we understand your argument thanks very much thank haste the option of just not getting into the standard we just this is the six case the question is whether you move to the next stage you don't get into exactly how each test works twelve b six the complaint doesn't have to lay all that out and i don't understand why we have to do that we must get into the standard because our position what if we think you lose under any conceivable standard ever known to the afterwards or of seconds for that matter we submit entitled to have his qualified immunity claim evaluated by the district judge under the under the correct standard but we can say or what if we'll say you lose under every standard we lose under the standard you propose we lose in the standard he proposes why do you have to do more than that i don't understand your theory of why we can't do that well because we had a clear error here gray was intitled under under rule twelve see to have his claim evaluated under the proper standard just district judge didn't do it and i would also submit your honor that under the facts as pled it's clear that john gray was in the position we had to act with haste and therefore the militia and cystic want just one more factual question of causing harm we submit that you know facts for discovery for more facts are not what is needed by the plaintiffs what is needed is a claim that establishes a constitutional violation and this complaint does not do it your red light is on so thank you very briefly your honor if i may we've had suggestions that john gray killed the defendant the jury answer especially in iraq a tour in the criminal case finding that john gray john gray's actions did not result in his death in the criminal case john gray was acquitted of the charge of strangling an assault i forgot that thank you for your patience several jury that was if that is true you're our history ok jarod in the short order they have i'd like to address your specific question of do we need to look at the standard and the reason and i believe we absolutely have to do so to provide guidance that the lower court proceedings this was not a complete appeal this would not a wipe it out on particular issues to look at the specific facts that will evolve beyond what the scope of the complaint was that would dictate it but having an understanding of the direction of what the legal principles are are critical at the point to twenty six that's not the court utilize the fourth amendment fourth amendment standard on a fourteenth amendment case i don't believe that's frivolous when we have two completely different standards which this court itself has recognized our differing levels have a higher burden i appreciate it the case will be submitted to