am this morning he's visiting with us from the southern district of pop up ohio and as graham we appreciate you coming all the way down from columbus and help us decide these cases it's a pleasure and i'm honored to be here and we have three cases that are scheduled for argument this morning as counsel is ready for the first one and as lennon is here for mr williams and this reynolds is here for  may please the court my name is valerie lennon and i represent the appellant in this case quincy williams there are three issues before the court today first his competency second is oil ation of evidence and third is summary judgment so turning to the first issue before the court today that is the issue of competency under rule seventeen of the rules of civil procedure the district court plainly erred by failing to sue a spontaneous inquire into mr williams competency after he alerted the court on seven different occasions that he was being treated for mental illness specifically he was being treated by the florida department of corrections and a mental illness or a mental illness treatment dorm he five of those seven notices he asked for the appointment of counsel the district court denied all five of those appointments of counsel now under rule seventeenth see it requires the district court says that the district court must appoint a guardian ad litem or issue another appropriate order to protect a minor or incompetent person who is under represented and the action well the problem here is that he never made a request for the court to conduct a mental competency evaluation and so why is that resolve this issue your honor that would require a mentally incompetent person to recognize the limits and extent own incompetency and incompetent the dictionary defines that as a mentally deficient percent lacking and ability so the very definition of incompetence means that mr williams may not recognize the extent but there's also an independent obligation on the district court where there is some sort of allegation or verifiable evidence to sue a sponte make that determination has been involved in quite a few proceedings before and he's done a pretty good job of representing honor we only see what's before the district court we don't know what's going on behind the scenes with mr williams we don't know if there's other evidence that could have come forward but he wasn't mentally competent enough to bring that evidence or that allegation forward so it's not really clear it's not really a complete record to base that determination on my i approach it sort of in the same way as judge wilson measurement the from a different angle a lot of times not all the time but a lot of times individuals who are in custody and being treated are receiving certain types of medication to try to help them with their illness or with their problem and we don't know from the record whether or not that was a situation with him or not  can have a person who has mental issues of one kind or another be dealing basically ok with day to day things even litigation if he or she is receiving the appropriate medications but the record seems to be pretty silent on that issue correct your honor in this court seen enough content see cases to understand that treatment for mental illness can be a hit and miss in order to get those medications correct and  proceeding and the third circuit held that the district court erred in the civil case by not conducting some sort of competency proceeding to verify whether the extent of his mental illness whether he was receiving appropriate pepper spraying and whether he was returned to decontaminate to get straight to the heart of the matter on this issue there's there's no evidence or faith on the part of that's correct your honor but this court did hold  another case which was an unpublished case the graft case that the aggrieved party doesn't necessarily need to show bad faith if the prejudice suffered is so significant that this was the critical piece of evidence and in this case this was the critical the crucial piece of evidence to pieces show definitively whether he was causing a disturbance that warranted being pepper sprayed number one and number two whether he was returned to the same cell or to another cell those are the dispositive issues here in the case the material issues of fact and that's what those videos showed so i would ask the court to find on that issue that the district court erred by entering summary judgment when that was outstanding mr williams it does appear was entitle to the spoil ation of evidence instruction on that i also do want to point out to the court i asked the court to take judicial notice of the the fifth factor in the florey factors which is the potential for abuse just in the report cases in the past four years there's three other cases where the florida department of corrections have lost similar videos so i'd ask the court to take judicial notice of that and give it special consideration what was the was there any indication of what the  the formal written policy of the dio c was with regard to such videos or tapes i'm not clear the formal policy was to transmit the videos to the florida inspector general i believe and then it was lost somewhere in that process i see nothing in the record that tells us that if they didn't then i wouldn't shed any light on whether he was raising a ruckus when think it might if so let's assume that it doesn't have audio it which still show what he was the guards claimed he was kicking the door so it would still shell out that it would show the actual pepper spray incident and it would show his removal from one cell and what cell he was returned to presumably now the incident report doesn't act say actually what the video showed the incident report simply says that it doesn't support mr williams allegations so again without that without those two videos it's virtually impossible for mr williams to pr video well if he got the instruction about spoil ation he could certainly try to get those inmates to come forward but it's much easier with those videos the district court relied on that he could contact those inmates which are now at other facilities to get affidavits but that really ignores the the reality of the situation there in mates he's a pro se inmate struggling with mental health illness issues trying to contact and mates at another retaliation claims and response for another nine hundred eighty three claim the final issue before the court is the general summary judgment as to what the district court did without those videos it was mr williams word against the word of apple as rickman and harold the non of the affidavits submitted in the case of aired that mr williams was returned to a decontaminated cell there was a partially decontaminated had on him mr williams claim that he has to be some significant injury he claimed that he had difficulty breathing and high blood pressure he also cl paranoia was how do we know that it was from partial decontamination or whether it was caused by the original that would be a genuine issue of material fact that should have been resolved evidence he submitted to support it but that's certainly a genuine issue of material fact that was not appropriate for the summary judgment stage and again one of those is paranoia that he suffered from the incident being in that decontaminated cell the record certainly does support that he's had some mental illness problems subsequent to this incident so if there are no further questions from the court i'd say you reserve some time may reserve the rest of my time for about all your honor may i thank you favor of the apple east despite the loss of the video the two videos the fixed wing video and the handheld video which samuel culpepper warden samuel culpepper sent off to the inspector general as required  by the procedure for department of corrections and then the inspector general's office lost the video rule thirty seven of the federal rules of civil procedure deals with the failure to preserve electronically stored infor but the rule only applies if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it so that's not the case here we don't have a party failing to preserve the evidence the loss of of the evidence was due to actions taken by samuel culpepper mailing it to the inspector general in the inspector general losing  department of corrections is not a party here the parties never had the video in their possession they never had any access to it they certainly can't be held accountable for its loss in fact it would have helped the parties to have it so there was certainly no intent on their part to deprive the video we were to the inspector general's office it was sent from the statement the warden here that did send it to the inspector general the inspector general lost it so the warden didn't do anything wrong it was the inspector general's office that somehow misplaced it but in any case we do have some indication of what the videos would show first of all the fixed wing video the record reflects and document ninety seven dash three on page seven that the fixed wing video did not contain any relevant information because the legit activities occurred outside of the camera range so the fixed wing video did not capture any of the activities in question and the fixed wing video contained no audio specifically stated in the record what we have here let me ask you questions about the summary judgment and whether there was a genuine issue of material fact as to whether or not there was  logical reason for the chemical spring we've got a case of the eleven sort that was decided in the year two thousand and ten thomas versus bryant and that case is virtually identical to this case les you can distinguish it for us this morning it was officers use chemical spray on and made suffering from mental illness and he had a documented history of mental illness no dispute that he was secured in a steel cell when he was sprayed or that he posed a threat to anyone at the time he was sprayed we said the only remaining that the only difference is whether his behavior at the time of the  such behavior even occurred and you know what we found that there was a genuine issue of material fact for the jury to decide i don't see a difference between this case and t of our surprise yes or in this particular case the mental illness that we that the only evidence of mental illness it relates to self injurious behavior so that's what he was treating far there and they were both sprayed while they were in their cell and they both both the pellets in these cases claim that they were not causing a disturbance and then thomas versus bryant we said there was an issue of material does not constitute a constitutional violation now what's at issue is whether he was causing the disturbance or not causing the disturbance and he has not presented any evidence other than his own unsupported allegations that he was not causing a your clients asserted that he was causing three or for two or three types of disturbances he submitted declaration under penalty of perjury which says that everything in his complaint is true and the complaint says he wasn't causing any disturbance why doesn't that create an issue of fact the allegations were that he was yelling and that he was kicking his cell door he was yelling profanity and kicking his cell door he denied causing a disturbance he never specifically denied yelling profanity and kicking the cell door those are disturbances are they not i think that subjective it could be that he thought that wasn't causing a disturbance but that officers believed he was causing a don't know why they sprayed him but that's not the standard on summary judgment you've you've got to look and see whether or not the evidence in the light most favorable to the plaintiffs here creates an issue of fact and if he denies causing if he had said i didn't cause any disturbance whatsoever would that create an issue of fact for the jury it might it but the allegations were kicking the door and yelling profanities i know those are those let's keep those as the allegations if he responds at summary judgment with an affidavit or a declaration under penalty of perjury that says i deny causing any disturbance whatsoever is there an issue of fact for the jury just but he'd need to deny that the allegations made against him were true he needs to deny that he was doing the things they allege he was doing but he said if he says no disturbance whatsoever why isn't that a matter for the jury you mean he has to go down and say i did not do x i did not do y i did not do z and i didn't do them in the way that i'm alleged to have done them he has to do that specifically i believe that was the reasoning of the court your honor i know it was something i'm wondering whether that reasoning scurry back to do you think it was correct i think it's a great issue  with regard to the handheld video that would not have helped mr williams establish that he was not causing a disturbance because in document one ninety three on page two  incident report it tells us what was on the handheld video and what it says is that he that he was causing a disturbance and then the camera man came in for the warning that was given to him  stop causing the disturbance there's no indication that he was causing a disturbance while the the warning given to him was being filled so then they left he was compliant and they left then he started causing a disturbance again he was sprayed and then the camera man was called to come back and filmed the post use of force procedure so again this time period in question would have been between the times that he was being videotaped so the videotapes would not have helped him to establish that the alleged behavior that the a behavior he was alleged of committing did not happen  cell his claims for compensatory and punitive damages could not survive summary judgment and that's because what he claims he suffered was elevated blood pressure headaches difficulty breathing he said he was gagging he had a burning sensation after being sprayed those are legit injuries he suffered even if we believe he was sprayed for no reason and even if we believe he was left in a partially decontaminated cell those are legit injuries ar elevated blood pressure in certain circumstances can prove deadly you think that's de minimus according to dr albert carl meyer who reviewed the medical records what they experienced was de minimus that's document one thirty two exhibit j it was his his opinion dr albert carl meyer he's been practicing medicine for over fifty years that the a legit injuries were de minimus and that he thought no further treatment mr williams sought no further treatment related to the use of chemical agents i'm going to go back to thomas case that i asked you about before the case that's virtually identical to this one thomas versus bryant and we acknowledged in that case that an inmate who is chemically sprayed may suffer psychological injuries from exposure to chemical agents has quote feelings of intense helplessness fear of dying attempts at suicide an exacerbation of other symptoms of mental illness close quote and in his sworn declarations in this case mr williams has asserted that he's experiencing those symptoms including intense paranoia insomnia suicidal inclinations and that he frequently hears voices and you're going to tell me that  constitute a compensable injury and that what we what we said in thomas versus bryant your honor it's my understanding under the p l r a that without a physical injury there can be no recovery  no compensatory and punitive damages he could very well have a case for nominal damages but it's my understanding under the p r a that without a physical injury that's more than de minimus there can be no recovery of compensatory damages what do you think de minimus means a minimal injury one that does not physical injury one that does not require medical attention when that could be taken care of at home by taking a shower splashing water on your face right that's correct and you know and what i'm suggesting is that even if even if he had even if he believed that he had been sprayed for no reason even if we believed despite the fact that their effort record refutes he was reason could never result claim for damages because it never causes some physical injury well he certainly would have a claim for nominal damages your honor but not your honour's as judge gordon pointed out the district court did not reach the issue of injuries because it found there was no genuine issue of material fact as to whether there was a penal logical interest and  like i said before it was a credibility contest and it extends for the harmless error analysis to a credibility contest mr on the issue of entries so mr williams named off all sorts  having all sorts of mental health problems he was having following the end student this is his firsthand account according to a doctor who has simply reviewed his records so it asked the court to take that into account when employing the harmless error analysis also the incident report that was authored by apple the rickman himself mr williams was still entitled to use of force jury instruction post summary judgment on the issue  videos and again i'd just like to point out to the court the summary judgment standard is to view all of the documents in the light most favorable to the nonmoving party and this was a pro se inmate  letter and you were appointed by the court to represent mr williams in the court thank you for your service