case law etc that was cited in the police brief so i want to tend to go back through that i do have some things i would like to address but i would st inquire if the panel has any particular issues they would prefer that i address st or any particular facts in the record that i addressed before i do that you're owners i think you know what this case is really about is in a in a prison setting when we're talking about what appears to be a disagreement between an inmate and a correctional officer which of those parties is entitle to make a judgment about the appropriate course of action to resolve that disagreement and i think the case law is pretty clear that we have to give discretion and that authority to the correctional officer in the st instance and that's what happened here we have a pretty typical situation we have an inmate mr beaver's who in the st instance with respect to the materials incident he's got a pair of canvas shoes he's got he believes he has an order that entitle him to wear them he's unable to produce that order and he's directed by a property technician that he needs to turn them over and he won't do that so the told to and his response to that is that he wants to elevate this discussion further on the spot he wants a sergeant to be brought in to resolve the dispute and at that point deputy darrow's makes a decision he decides that he's going to forcibly restrained mr beaver's and that this issue whether or not those shoes need to be returned to mr beaver's will be resolved in the future rather than in the moment and in fact that is what happened those shoes were returned to mr beaver's the next day and i think the facts of the case confirm that that's how it should happen correctional officers need to be given discretion and flexibility in order to resolve these disputes right then simply and quickly with a minimum of fuss and there's nothing in the record to explain to us how the order that was being given to mr beaver's was so was a foul in any respect of constitutional standards that would justify his refusal to to trial understood your honor and our position is that when we're talking about a this is not a use of force there were no baton strikes there were no blows well it was chicken wing it was control they pain compliance technique was used to handcuff in that is correct all right and the question the question is did they go beyond what they're supposed to do do they did they use more force than necessary and hurt him in the process and my position that you are would be that if a pain compliance technique is authorized if that's not if that's not in permissible then for purposes of qualified immunity i don't see how pain compliance thinking well you could be you could beach you could be chicken wing and dislocate somebody's shoulder if you push it too hard you can break you can break an arm and it's very difficult to say that just because you're authorized to use a plane a pain compliance technique in the chicken wing is one way to do that to pull somebody pull somebody arm up behind them  but if you push hard and the guy screams and you keep doing that i mean that these are these are these are issues and there are degrees of there are degrees of truth here that are difficult for us to resolve on this record i understand your book but the facts of this this case there was no dislocation there was no broken bone what we have are soft tissue injuries so if we're going to begin parsing levels of force within soft tissue injuries how will qualified immunity ever apply to the use of a pain compliance technique at the summary judgment stage it would be impossible all that the plaintiff has to do is say it hurt too much and we're done and it is literally the least invasive technique that the deputies can use to gain compliance from someone who won't comply it is your honor and we're not disputing any of the facts what we're saying is that this case is important because correctional officers need to have this level of discretion they need to be able to make this decision because let's think if the opposite thing it happened here if mr beaver said simply complied with the direction and it turned over issues and let's say that something untoward happened after that that the shoes weren't returned there are there are procedures for mr beaver's to address that constitutional deprivation none of them involve resists what is asserted what the shoes would be given back to him for thirty days that was his concern that i mean and i that's beyond dispute that it was his concern there's no evidence in the record to suggest that  two so i mean i mean there's a distinction between correctional officers in a prison and pretrial detainees he was left changed chained to a bench for over twelve hours and received no medical which would indicate that oh you're right on the now we did what i was going to say is that the missing link here is being able to link that deliberate indifference to deputy kolker because what we can't establish is that deputy coker ever had any knowledge itself is not enough there's got to be deliberate indifference to the right and again we don't have anything in the record mr beaver's doesn't ever tell us that in fact he had a medical appointment what he tells us is that a nurse told him that she would have a his he was not chained to the bench with his face black blue and swollen for over twelve hours and received no medical treatment for three weeks forget whether you had an appointment or it didn't ha for twelve hours i mean your honor if i disputed i'm lost the record is what the record is i'm i'm not disputing what mr beaver's is saying what i'm saying is that there is no evidence which links deputy coker to causing him to miss his medical appointment these facts do not establish a violation of a clearly established constitutional right which we could review but rather in the plaintiff hasn't adequately established the facts which we don't get to review right the supreme court has said that we you can't take an interlocutory appeal on the question of those fish and see if the evidence to survive summary judgment and then it seems like what your argument is is you know there's not enough evidence here you honor my argument is that the evidence that he's presented doesn't establish a constitutional violation as a deputy kolker he can't show that deputy kolker was deliberately indifferent to the fact that he had a medical appointment that morning he can't even show that he had a medical appointment that morning what we do know is that his initial complaint he was taken to a nurse by deputy s s but it was a he was evaluated and the nurse told him that she would have a doctor see him but we can't do is we can't link that knowledge to deputy kolker i'm not saying that mr beaver's wouldn't be able to mount a claim with respect to that fact pattern as to somebody else but with respect to deputy coker there's no evidence that ties deputy kolker to mr something like twelve or twenty four hours apart as oh no you're out of the timeline is more compressed and that is all within the same day it's within the same day deputy covert comes and visits him where he is changing the bend i believe it's two  any longer and i think what's very notable about mr beaver's declaration in terms of his description of his interactions with deputy coker mr beaver's never says that he told deputy kolker i missed my medical appointment he never says he never says that he told deputy kolker no one's been to see me i've not had any food i've not been allowed to use the bathroom i urinated myself he never says anything like that he doesn't give anything to connect his claims of deliberate indifference to deputy kolker there's just nothing in the record which suggests that circumstances the medical appointment and your honour's have picked up on doesn't really make much of a difference the record is that deputy espinosa handcuffed mr beaver's to the bench in front of marty eighty six am at seven o'clock am mr kolker directed remarked mr beaver's now if you recall from the record deputy coker was the be my deputy which is to say that he was in charge of the in may count and also the medical visit so it was his job to know exactly where each inmate was it in a given period of time so during this after about two hours of being request a medical appointment he did not receive one until the next morning when he talked to judge espinosa i'm sorry to deputy espinosa and deputy has been oh so that time made sure that he got to the nurse who mentioned the medical medical aid and if we talk about what was not said to pick up or does not ask him if he was alright deputy cover doesn't ask him if he is in any discomfort jeopardy coker takes no action to see whether or not he needs any type of medical attention given his visible injuries instead of what deputy kolker does is he talks to him and make some reference to some type of homo sexual activity between two other inmates and then also asking mr beaver's why he didn't take care of it himself the situation with the inmate who attacked him he then comes back at six pm after mr bieber says been changed to the bench for about twelve hours and then he says to him well do you want to go back to your cell or do you want to go to cut the classification section where mr beaver's mentions of that point he wants to go back to herself he says ok then classification it is where he is held for more for more hours and so as a result of the fact that the deputy who is in charge of having some knowledge of where each inmate is and whether or not there are any medical visits that deputy does not take any effort to get him any type of medical aid he's not able to receive medical intervention until about three weeks later regarding the midair of situation what i would say about that is context is everything  st mr beaver's was asked whether or not he had any medical documentation with respect to the shoes he did in fact have that documentation it was not on his person because the facility he had just left  told them he couldn't have it on his person he had it in his bag were containing his possessions so you have a situation where deputy materials claims to want this information with respect to whether or not he's entitled to his shoes but yet he does not allow him to walk the three or four or five feet in order to produce that information for him because mr beaver's lets him know that i have the i do have the information and takes what i would say the unreasonable position that if you don't have it on your person you don't have it at that point and this is why i say context is everything he makes a very reasonable request book can we get a supervisor here and in fact deputy materials feel look in the record admits that that is a reasonable request and deputy mayor also admits that he could have contacted the medical intake in order to get this information that he claims that he wanted deputy midair ost refuses he refuses to allow mr beaver's to comply with his initial request to get the document out of the back once again context is everything you have mr beaver's who is this six thousand four hundred and sixty five years of age he's talking to a deputy who is at that time i think he was twenty nine years old six foot two thousand two hundred and five pounds flanked by two other deputies deputy materials claims that mr beaver's is acting very aggressively in terms of his hand gestures and he's being very aggressive in non compliant however as judge go for pointed out upon reviewing the video tape of the video recording that does not appear to be the case and in fact you don't see anything on that video recording of mr beavers being physically demonstrative at all admits that mr b risen them took up never made any type of physical movement which would indicate that he would be a threat and if you look at the videotape it it appears that he is starting to turn around you can't hear what's being said but he's starting to turn toward the wall when all of the sudden the mid air sets upon him and chicken when the wings him with the assistance of the three deputies and no time you see mr beavers trying to resist or use any force whatsoever and so understanding that when you're dealing with law enforcement situations at the very fluid understanding that an officer has the right to take into account whether or not he's safe in dealing someone based on these facts he clearly was he had you had an inmate who clearly was not a threat who made a very reasonable request in order to avoid having to lose his canvas shoes for three thousand and thirty to sixty days and as a matter of fact he did get the shoes back the next day that's because he had the order that he was not allowed to get it with respect to the very produce the document or the order which allowed him to bring his folio to his medical point me prior to that mr beaver said been in a cell or in the holding cell with the with deputy song he had comes down the hall and tells him very much that equally that he would not allow him to do that he asked for he uses language that i won't repeat but it is in the record to produce the order for the  very virtually abusive and once again he tells him no mr beaver's makes a statement well what kind of man doesn't allow someone to take a pill he's not refused to do anything there's no instruction the deputy education gave him that he refused at that point deputy editor and set upon and grabbed him by the arm and he chicken wings him and it is clear in the record the deputy edgerton admitted the reason why he did it was essential a because i didn't know what he was going to do that is constitutionally insufficient you don't as it's set forth and the orly case is that it is not enough for an officer to say that they have a fear for safety there has to be some objective reason once again deputy education his basis for him taking the action was that mr beaver's was allowed his face w red and he seemed visibly upset what is missing is the fact that he did not have anything in his hand that could be used as a weapon he did not take any type of physical action which would indicate that he was going to do anything to hurt deputy edgerton or any of the deputies nor did he make any type of physical threat and when asked well if he felt threatened why didn't you tell him to sit up i just didn't why didn't you tell him the face of the wall i just didn't so with respect to these situations you have a deputy who is older and weaker and once again in this situation we have deputy education who are the top and the time was six foot  think we have jurisdiction over this appeal because of course we don't have jurisdiction you know to review you know if the challenge is to in order determining that there is a genuine issue for trial i'm just wondering how you see the issue that's been presented to us well i would say i was i was surprised i think that the court was i mean there is certainly precedent to say that to the extent that there are disputed issues of fact that those would need to be resolved before the court could then make a determination as to whether or not there was qualified immunity i have knowledge that the court has certainly the jurisdiction to assess qualified immunity immunity issues but certainly in light of this case and what i just heard from counsel if they're not you know if they're acknowledging that their works disputed issues of fact with respect to each of these cases and when i see each of these cases i mean with respect to get a coke or magaro in education then i'm a little bit puzzled as to why we're here under those circumstances and if very briefly your honour's were not alleging that there's a dispute here the the district court refused to reach a qualified immunity finding that there was a dispute of facts and it based that characterization on as justice by b you were saying whether or not the level of pain compliance technique that was used here whether it's excessive which would involve an evaluation of reasonableness our position is that when a correctional officer is faced with repeated noncompliance that a pain compliance technique is constitutionally permissible  there's no need for force forces unconstitutional i think that's the case i mean samplers that's the general statement of it but we're not talking about baton strikes we're not talking about he continues looking for this order he's not complying he's not handing over his bag langa it just started i've probably got a minute left less than what showing on here is showing me three hundred and fifteen dollars it did just start it wasn't going just keep looking for the order now we're asking for a cup of water we're changing the subject how long does the correctional officer have to wait for he can say enough is enough i'm going to neutralize you want to say fashion where you can't move around this cell in this hospital outside of the jail where it's me and one other deputy and one other inmate in the medical staff i'm going to i'm going to neutralize you so i don't have to worry about you and i'm going to figure this out myself how long does he have to wait and i don't think that that is a question that the courts should begin to enter into because again this case would be radically different of course if deputy education had begun striking mr beaver's if we had had some display of force that is just unquestionably beyond the pale but that's not what happened he can find him he went and looked through the bag of self when he determined that mr bieber it was appropriate inmate he returned it to him he ended his handcuffs and that was it that's it and again it's a very different question if mr beaver simply complies at the beginning and says i can't find it and deputy edgerton picks it up and locates it returns to him then we have no issue at all the problem is when we take away the discretion