may please the court thank you for allowing me this opportunity to be heard today number one secondly when i must recitation the facts that i would like to state as i must do assuming that the plaintiff's allegations are true and by no point in time of my making any admissions on behalf of mrs yaki i should have first stated that the third member of the panel is on the telephone again yeah i guess i am hearing everyone loud and clear ok judge ross from plaintiffs to federal claims well this is a real question whether we have jurisdiction to hear this at this time i would respectfully submit no your honor because all of the allegations of grounds for our claim for qualified immunity are premised on accepting plaintiff's allegations as true while there are some disputes of fact they are not material dis  cruel and unusual punishment and is not a pretrial detainee protected from cruel and unusual punishment the fourteenth amendment right under the fourteenth amendment that's correct and the claim here is for fourteenth amendment cruel cruelty and punishment and in particularly the plaintiff has alleged that it's in connection with the serious medical need that mrs ilchi was allegedly deliberately and different to and because there is an allegation of a serious medical need our courts have determined that the this is if he should have been confronted with objective evidence of a serious medical need and also if we look at the facts in the light most established that plaintiff was issued rules and regulations on the day he was placed on house arrest those rules and regular regulations which he signed for specifically instructed the point that if there's any technical malfunction with the equipment police department when the person who put the then the one hand wouldn't do anything we really think the local police department would have done something  know and your honor that i'm glad you asked that question because i don't know if your honour's have had an opportunity to look at the bracelet it's not something that's activated by kids it's even rubber band i thought just as an exhibit then with the lower court would have to be cut off right like that and when mr wilson met with constable e s and complained after told him to contact the bail office according to the plaintiff that's correct your honor and there's no matter how we're looking at this case at the present  i under i understand that your honor and i think what's what's crucial here is the complaints that were given to mississippi were limited to it's tight it hurts this thing's killing me at well isn't that   and that was that right is that in the record that's in the record ok so that that would have provided and that jack the basis but she wouldn't look at that so why why should we s he say that there was no objective basis because on march second when mr wilson first complained mississippi looked at it and said that's the way it's supposed to be well but then what he said it was right  i understand that you're on a campaign the beginning and end where mr wilson complained was to his attorney criminal defense attorney at the time on the day the house arrest ban was apply that criminal defense attorney was named wendy roberts the plaintiff has alleged that he called mrs roberts complained to her about the tightness of the band notably mrs roberts made no mention of a complaint tightness rather her issue i mean that's the only thing we have to decide on right i believe is a factual issue i mean if there is we don't decide the merits but i believe there are factual issues but i would submit that they're not whenever you want your time thank you your honor with respect to the first amendment retaliation claim the elements of such a claim are that number one the person was engaging protected speech number two that the government actor took adverse action and that number three there's a causal connection between the protected speech and the adverse action do you have a person then or right to complain yes we're not disputing that your honor ok what we're challenging is that there is simply accepting all the district of pennsylvania the western district of pennsylvania in fact this honorable court and get said all ruled that a threat cannot be construed as adverse action is reversed more than the threat this is the absence of taking an action and absence of taking an action is an action as i remember from my philosophy class doing something is in a way doing something and here she didn't i mean she took the action of not removing or loosening it and isn't that an adverse action though your honor i think that's an omission and in fact i think far court has ruled that actually making a threat and threatening somebody which requires at least some act is not adverse action for person member purposes then i would simply spectrally submit that it belies logic that action means that you have to do something to change the person circumstances yeah that's right and not changing it to accommodate the pain is an accident well that's a philosophical issue that we're going t for you just said you had you know several district court cases from eastern middle district the country but you know there are circuit court cases around the country that say a threat is sufficient as a the holding of the third circuit case was that a verbal threat is not retaliate retiree triac for first another purpose is more than that they're asking you this is this is that tally ation you know if somebody is requesting relief and the government actor denies them that requested relief and the person keeps going to the government actor requesting the same relief and the actor fails to act the government actor takes no action whatsoever i respectfully submit that that's not a retaliatory act well we'll have to resign i understand you know and think you still have a little time thank you your honor with respect to and again i understand that there's disputes of fact here because my client does allege that at no time did plaintiffs ever call her and complain about the tightness of the band however that that fact is not material with respect to the plaintiff fourteenth amendment substantive due process claim or i'm sorry fourteenth amendment cruelty and punishment claim where he's asserting that she was deliberate indifference deliberately indifferent so we serious medical need you you read that he complains i mean there is no like yes there is evidence of that plaintiff indicated that he complained to his criminal defense attorney when he roberts who girlfriend to his girlfriend who there is an arse to his other criminal defense attorney charles three claims three constitutional claims i am there were two and i can't distinguish between what you call your third and this could you tell one has the first amendment right yet your own and one is the fourteenth has two parts here's the deliberate indifference to the medical need so that's the what that's what would be the eighth the men playing right ok and although i would submit that that this court has now said that the eighth amendment is the floor when the when the medical need claim is brought in to help we're not talking about the substance of the merits of the line i'm just trying to figure out what the what that other claim is the other claim your honor is perhaps analogous to an excessive force claim under the fourteenth amendment where someone back the same and the eighth amendment no judge it's different because you can be subjected to cruelty and punishment in some way for  rting the band on to fight without possibly without it rising to the level of a medical need now i understand that there is an intersection between the two but she deliberately caused pain in the first moment she put it on he said it's too tight mr janes who was with them said it looks too tight mr wilson complained about it and she refused to loosen it at that point she has imposed a punishment on a pretrial detainee with no legitimate pain a logical or you're talking about the deliberate indifference of going the standard for both is deliberate indifference but you know just to make sure i can't be for the first one for the first amendment no no the first claim we just the first fourteenth amendment claim we were just talking about no it isn't that requires some kind of you know state of mind that if more than indifference yes  cruelty claim would be unnecessary and wanton infliction of pain and as as this court also said in hubbard hubbard one i believe judge roth was on that panel if it's not rationally related to can be a variety of claims under the fourteenth amendment and the point is not the amendment that they're brought under or even the section the amendment but the harm caused and in one case where you have i submit where you're inflicting pain and said that in that case deliberate indifference is consistent with recklessness and in fact your honor i believe that in the fuse decision in your circuit i think i know if you're on the power you were actually the author you said deliberate indifference may be shown if an officer ignores or fails to respond to pain or possible medical need in that case it was dental pain the corrections officer transferred the person without making sure that he was going to receive dental decisions in other circuits to the contrary the nice circuit on october twenty eighth two thousand and nine after the briefs were filed in this case in the case of broad time versus cry specifically  specifically said the threats in in themselves under the circumstances under certain circumstances can constitute a an action to give rise to a first amendment claim and i also believe that this court this circuit in sterling case i apologize your honor but i have in my fingertips and i don't put it in the case of of madonna the complaining by saying be quiet you have fifteen minutes to go home if you don't stop complaining i'm gonna lock you up so that's different from all the cases that my learned colleague has cited because it's there does because in sterling the heat of the case was the right to privacy but in that case the threat i mean the right to privacy arises from the first amendment and the threat was to court look to the threats well in this case the threat seems to have been made according to the facts in your brief at the time the bracelet was put on when it wasn't that obvious that it was causing swelling  source cetera and the threat from what we can see did not stop him from continuing to complain so can we really look at a threat of this nature  trouble than i was already in and i didn't mind every other day not every day as i read your read it if you read the description of not mr wilson but his coworker as to his foot being small in purple like a football to be able to hold off and not complain every day and only complain every couple of days it is a monumental effort and the point is chilling is not a degree of chilling just because you exercise some first amendment rights doesn't mean that you've been have been prevented from exercising your full panoply of first member rights he would have complained much more if she had threatened him maybe he would have gotten her supervisor maybe would have done a lot of different things but she stopped him additionally  picking up on which is that you have an individual who is complaining about the pain and the more he complains the less responsive to him she is she's refusing to talk to him for the few can look at it she's refusing to listen so i don't think we need to get to the high philosophical argument of whether a failure to act is an act because she could have taken it off if she wasn't so turned off by this guy whining and complaining and so angry at him and so threatening of him she would have dealt with it so that in itself is a retaliation continuing the pain continuing injury to mr wilson by leaving the taipan don so actually they're the adverse effect comes in two forms the threat w speech and the punishment for his speech so whiners have a right to your honor and my family we all have separate fourteenth amendment constitutional violation it falls under the category of cruelty and punishment and that's where our supreme court and i think it was estelle ruled that when you assert deliberate indifference to serious medical needs that claim where the plaintiff is alleging that it's deliberate indifference to his serious medical needs that's the standard of culpability that needs to be applied it's not a separate claim in and of itself that's under to bring court and third case will sell which which applied to the eighth amendment because it involved a convicted person with respect to the first amendment recent cases i would just respect respectfully submit its counsel as indicated that these cases were decided after band on his right leg for twelve days and i think it's crucial point out and emphasized that on the ninth day of his alleged suffering he was required to appear at the delaware county court to be arraigned and his attorney made a tactical decision this is uncontested that he was to show up alone and represented by counsel so he would get to return with counsel date at no point in time did mr mystic and his attorney who's allegedly been receiving these complaints for the past nine days decided to accompany medical need is that a point his condition is serious when it is quote unquote so obvious that an ordinary person would easily recognize the need for a doctor's attention but that's a jury argument i and i gather that relationship is terminated and you are all have no fury like a woman  it would be better to call me on the house when i get better reception