district court erred when it accepted the defendant's version of the events and rejected mr versions i'm sorry mr roups version on summary judgment even though mr rooper was not the district judge didn't really reject his i mr roups versions of events was true then there would be evidence that the officer strickland's conduct was malicious and sadistic but because there is quote virtually no evidence of it he found that it was not to me that absolute rejection of that otherwise why say it does did your client in any point by way of affidavit or testimony say that he did not been back the figures of the hospital or thinkers of the hospital or there's no sentence and his complaint or his agenda into his complaint or his declaration that i did not bend back mr listen bs fingers what there is is a description of the events as they occurred that excludes that possibility sort of basic philosophical principle of the theory of non contradiction you can't have t opposing things in the same place the same time the same respect and mr root said that the reason that he was tasered is because he was insulting the officers before he was tasered the officers told him you don't know what pain is shut up we're go taser grass and then i think this point is crucial mr group says the officer strickland went and shut the curtains around the hospital but he also says that he was fully restrained such that he could not move his arms or limbs at all was reason for that restraint wasn't there oh yeah when the officers arrived it was a dry cleaning store when the officers arrived what  it a place of business where mr rupert was on top of his ex girlfriend strangling her no question that mr rooper should have been pulled off of his victim no question that the officer should have put him in its place no question that he even should have been restrained the question is is there accepting all inferences that are reasonable in his favor in seeing it seeing all of the facts in the light most favorable to mr rope is it possible that mr rip did not bend back the fingers and that that wasn't the motivation is it possible viewing those lights in mr reeves favor that the reason that he was tasered was because he was insulting the officers he was being a jerk and he was saying offensive things as the district court said if that's the reason that he was taste that's evidence of saying it wasn't he in fact in the leg well that's a question of material fact the truth is that he said mr ribs that he was his in the thigh and he had injuries on a screw and when you say does the physical evidence support it there's not a note in the medical records that indicates injuries to the scrotum but there's also no record about whether or not he had his scrotum examined or whether or not at the time he told the nurses that he had injuries to his scrotum again if we're seeing the facts the light most favorable to mr rooper a trial attorney should get to explain to the jury that there could be all sorts of reasons why a prisoner is not going to tell his nurse that his scrotum hurts that's a question of fact that's something for a jury not for a judge to decide to stop it from going to the fact fine and you as to this issue of did he ever expressly deny that he was pulling back the fingers the truth is that the scenario that he described doesn't allow for that to  by saying i can't move my arms he's saying i didn't grab the fingers and pull him back by saying the reason they tase me was because i was being a jerk and because i was mounting off it's both expressly stated and implicitly stated that he's not physically grabbing anybody and frankly if we're getting into whether or not this is an issue of material fact if i'm the trial attorney and i actually get to try this case in front of the jury i get to point to the testimony or the report of officer warmly that's it c r one twenty seven and then his report he says that the reason mr rupa is restrained was because he was being uncooperative and use the f word and then he was taste officer warmly says he was tasered because he tried to grab chad listen to his hand that's a very different description then he grabbed the guy's hand and twisted his finger back my only point is there's a lot of different facts that are being asserted by different parties here that's exactly the sort of situation we're  just record judge should allege allow the credibility of each of those individuals to be weighed by the jury not by the court and i haven't found one case and defense hasn't found one case where the trier of fact is deprived of the opportunity to weigh credibility because the district court judge makes that determination on their own in summary judgment as a basis to grant qualified immunity rupert and that he did not participate in any individual participate in any conduct of use of force and so under that human research right case there is no basis for a claim against him and a claim is properly the dismissal is properly  rose committed or convicted of a felony for his violence towards the victim his victim he had to be tasered and he fought the arresting officers  oh here we go it's s u r one five nine that is the one that's being referenced to here with these alleged facts it is specifically signed without any verification no it here is and then they refers to it in in  instructs and tells everybody that you're winning when you have a pro say please proceed prisoner you look at their complaint and you read it generous lee ok they get the benefit of the doubt but the rule fifty six also says that you can't rely upon unverified complain to raise issues of fact that rule fifty six is the whole purpose is to pierce said billy jones the really and so the real problem here is he's got this verified complaint what he does in opposition to the motion for summary judgment is he incorporates statements from that a dent i'm no incorporates the statements from the officers that what happened and then he never really denies exactly and that's the whole point here on or is that even  read the well i call the unverified complaint it does not dispute what the officer said was the reason for the use of force that he bent back the fingers it isn't in there while the destroy and when he repeats it in referring to the officers version of the events multiple times saying that he used the taser bending back my fingers he does not ever say that that didn't happen that's not true that's all he had to say this is a smart legally sophisticated person he wrote very good briefs better than some lawyers that i've seen in presenting his pleadings he knows how to verify things under oath he cannot be prosecuted for perjury for a lie said in an unverified complaint because all he has to do is turn around and say look i didn't sign that under oath i said sign the other thing under oath and i just attach and verified pleading to it this and this is going to be used to deprive a police officer of the right to qualified immunity a privilege against suit your measure your major point which i because they'd gotten lost in the last exchange is that he never really denied the officers version of events right yes or no that's exactly right your honor that is the point in order to raise an issue of fact you have to controvert there and he provides a separate explanation if you take what he says in the unverified complaint the provides a different reason for motivation for the use of the force there's that but there's no dispute my clients don't dispute that he was he was complaining about the officers the rest him he didn't dispute that the officers saw or that he was bending back to thing years of the hospital security officer there  dispute about those facts but the real dispute about is the motivation of the officer but that is not a reason for denying qualified immunity here and the in fact there's there's a ninth circuit decision that cited in my br versus mcdonald case that deals with that exact issue this is it's a case where a inmate claimed that prison officials had an improper motivation because they retaliated against him for filing an earlier civil lawsuit by sending him from a minimum security to a medium security prison so as a retaliation argument  officials said no the reason that we did that is because you were a disciplinary problem and we had these other problems with you so there was a dispute about the motivation there wasn't about the fact that he had complained and made these  made a lawsuit against the prison officials and there wasn't a complaint that he engaged in in in disciplinary problems with the ninth circuit did in that case was to hold that the argument about the motivation was not fission to deprive the officials of qualified immunity because officers could have believed that the transfer was lawful that's the qualified immunity test it is not a strict test of just saying whether or not there could there was a question of fact as to a violation of the constitutional privilege that's what the saucier case said you can't just rely upon that there is a separate analysis for qualified immunity there is a privilege against lawsuits a qualified privilege the law enforcement have that regular litigants don't have and you have to address whether or not the officer could reasonably have believed that what they did was lawful they could do that the ninth circuit h because the guy had been a disciplinary problem and the fact that he was alleging that no that wasn't the reason the real reason was because they were retaliating against me for making complaints again against the prison officials that doesn't survive qualified immunity the same as here true it's true here officer strickland could and any objective officer could have reasonably believed that using the taser when when mr rube didn't back the fingers of the office security officer and did not comply with commands to stop that that presented an immediate risk to to the safety of the hospitals by the officer and the question is that with the answer that the answer is pretty easy but the question is whether or not he bent back the fingers and it was never denied by mr group in any of his pleadings and schroeder is that's exactly the way the the ninth circuit posed the question in schroeder versus mcdonald so your honor this is a qualified immunity issue if it the layer weren't there maybe you would find that there was some issue here but it exists i think you've been invited to do exactly what that happened in the souce sauce your case when the court fuse together the qualified immunity analysis and the constitutional excessive force analysis and took it is one thing and the supreme court said no you can't do that it's qualified immunity is a separate issue they can't be confused fused together so i would encourage the court not to follow that track to apply to apply the law as the supreme court has said it regarding qualified immunity and to protect the privilege under this that counsel said that the evidence is undisputed the district court did not agree the district court said had officer strickland use the taser in the manner that my client alleged the use of force might well be characterize as excessive since the allegation suggests that the point of the tasering was to maliciously and sadistically cause harm because this would have required a wanton state of mind the court just didn't believe mr if we're going to take all reasonable inferences in his favor i think it's a very reasonable inference to assume that when he says that i couldn't move my arms that before he tase me officer strickland threatened me and then sealed off from view where we were by closing the curtain and then he told me he was going to tase my grass and then you taste him i believe if we really are taking reasonable inferences in his favor that he saw that as a statement that directly contradicted what officer strickland said i don't know your client in his office took portions of the officers version of events in my correct about that yes laid them out and it i have a question anywhere in doing that did he say that did not happen no he does not say that did not happen what he says is  officer strickland says this and then mr mr group writes a different fact i disagree with mr quickly his characterization is my client is especially legally sophisticated and i think that pleading sort of proves that there's something about that what  or not how much sophistication does it take when you recount an officer saying this is this is why this happened how much sophistication does it take to say this did not happen to think that to say a factual scenario that directly contradicts the one that was just stated doesn't sufficiently contradict it because it's not on the nose enough it is sort of a legal approach it's not that you know if you tell somebody what happened to  you you give one version of events and then somebody says a completely different version of events it doesn't take a big stretch to say well those two are in opposition therefore you're rejecting the first one and i say let me try it another way did he ever say here's what really happened well he said what did he say that he said the phrase here is what really happened you know but he said what happened in the implication by signing it is that that's what really happened especially in this is one of this is why i'm here because of this legal principle we can't abandon the notion that we suddenly stop reviewing these facts in the light most favorable to the nonmoving party especially a pro se nonmoving party and frankly we're giving officer strickland all of the favorable inferences when we're doing this and you know it's an interesting exercise to sort of switch it off to strickland never said i didn't tell him i never denied that he threatened him never denied that before tasing he shut the curtains never denied that he told him he didn't know what pain was but certainly when you read officer strickland description of events you see it as contradictory to my clients and that's because the motivation opposite stric describing is a very different one as the district court noted than the motivation that my client is describing in the light most favorable to my client he should get to tell the jury about thank you thank you counsel will