disability was was manifesting itself title two of the eighty eight requires public entities to make reasonable modifications to accommodate an individual with a disability rock island doesn't do that for their intake policy they have a plank it rule that every arrested who arrives at the jail must change into a jail uniform and the evidence from testimony of ceos of correctional officers at the jail is that they implement that policy by using force if someone comes in and doesn't want to change into a jail uniform they use force to force them to get into a jail you know that's a they did to miss milray nia and that's the core of her claim about being forced to change into a jillion isn't the problem of that claim didn't really surface until about four years into the litigation i disagree that that every amend every complaint and amended complaint filed was about the jail's intake policies and changing into a uniform wind that when did you first raise the americans with hat a lot of time was spent on class issues and discovery into the into the individual claims didn't really get started until around that time that the proposed fourth amended  within the court's schedule for filing an amended complaint that was an agreed schedule by the parties and it was also filed when there were seven and a half months remaining for discovery the other point that we point well into a litigation record in the purdy's are entitled to know what the theories are and the suit seems to have been a pretty dramatic shift in legal position from the excessive force claims that refine the official capacity claim against the jail for those policies and to drop the individual defen in addition to this argument they were making about the need about no requirement to put the legal theory in the complaint we also have the relation back and that there's no dispute that the complaint has always been about t jail and she's always been complaining about the same conduct transaction or occurrence the kid on in this court's opinion recent opinion in the other vs chicago it held that searches that had been in the original complaint related back because the original allegation was sufficient to put defendants on notice they would have to defend against all claims arising out of the encounter to put in new facts once raise a new claim and as i've been saying this wasn't a last minute this was on the court schedule and this was with seven and a half months of discovery meaning you three that are standard of review on that question is abuse of discretion i agree that a motion to amend is reviewed under abuse of discretion it's our contention that the way the court applied relation back and the way that the court applied that a requirement of pleading legal theories or legal  ruling was that based on the testimony of the sheriff the the policy is actually to only use as much force as necessary and that's contradicted by the testimony of the guards noted that this is such a standard practice the jail it has a name and it's called super manning that when the guards hold the detainees arms in front of her head to rip off her clothing they say that they're superman and the detainee to get her to comply to remove her clothing and give her the jail clothing the district court made some some other had some other bases for argument that we contend were not in the defendant's briefs that they didn't argue that the plaintiff ha forward with they had been placed that issue plaintiff didn't have noticed that she would have to go through this flaxen you mentioned seven more months of discovery yes that's right but all the principals had been deposed but then what were they going to be read to post the individuals who had already been poems well i think that's a better question for the defendant who argued that the amendment was would prejudice them because they would have to take more discovery from the plaintiffs point of view we had all the discovery we needed about the events surrounding this money as entry into the jail so the the defendant has has contended that the amendment came too late and it was unfair to them because they would have to take more discovery i don't think they've ever explained what that extra discovery is for or why that why seven after months was insufficient so at least and from your position you did not need more discover who i believe that of view no from our point of view we had the testimony of all of the facts surrounding this building is entry into the chair it's certainly possible so that i understand so under the a b a claim which i understand would it it's certainly possible that in response to an expert or in response to you had the court granted the motion a week or two weeks after it was filed the defendants would have come forward with more evidence about their compliance with the a that would have required more discovery but that's that's a hypothetical i don't know that they've never put that they never told us what that is i don't know what that is that those are just guesses from regular discovery cases so as far as i know there was plenty of time seven modification modification would be a mental health screening before this use of excessive force to to put her into the jail uniform so it finds that she's unwilling because of a mental issue and the health issue to comply with the policy so what happens next but appropriate action to deal with somebody who's having a p t s d the flashback that if somebody is having a p t especially if somebody is having a seizure that the appropriate action isn't to rip their clothes off the idea requires something different than using excessive force that there's medical care or force or using force i don't yes you're i don't you don't have to agree that it's excessive force to say that the eighty eight requires some sort of assessment was not properly before the court that plaintiff didn't have notice that these facts were going to be a part of the court's ruling because the defendant rely purely on legal argument and the legal argument that we've put forward is dignity that under the fourth amendment recognizing the supreme court about the numerosity issue is that in a lot of cases the first class motion gets denied and there's another one other than this one the court's ruling was in this and we've you know it was that their individual damages therefore there can't be a thank you good morning may it please the court heidi weller on behalf of the sheriff of rockland county culminating to the is in excess of six years of litigation between plaintiff john movie me and the sheriff of rockland county litigation that began in november of two thousand and ten with the filing of plaintiff's initial complaint now this litigation has been the very definition of a moving target including it here he is times claims that ms moving it was held in excess of forty eight hours without a probable cause determination allegations that ms moving it was strip searched that she was held for hours after a judge released her but what has remained the same throughout this litigation what has been  consistent through the multitude of attempts to refine this litigation again we are at the stage of a fourth amended complaint was a claim regarding excessive force specifically related and pled with with incredible specificity that ms moving here was the victim of a sexual assault perpetrated by male correctional officers not until the plaintiff's fourth amended complaint filed for an unhappy years later has it been alleged that this sexual assault which had been previously played again with enormous specificity including an allegation that there was medical evidence to corroborate this not until the filing of the fourth amended complaint four and a half years after the inception of this litigation defendant to learn that plaintiff's theory is now not that a sexual assault taken place but in fact the opposite that plaintiff wants to raise a mental health issue including that she has post traumatic stress disorder and that she merely perceived a sexual assault and was having a flashback planers fourth amended complaint sought to allege an eighty eight claim challenging the mental health screening procedures at the rockland  center case i would argue that all three of those factors play in this case so for example we have five attempts at a complaint the previous attempts had not cured what plaintiff considered a deficiency counsel for plaintiff indicates that that we have not specified who we would need to depose or what prejudice we might suffer so i'll take a moment to do that here we would need to read to pose the pla herself we would need to reach oppose anybody coming into contact with her probably including the arresting police officers at the rock island county jail contracts with an outside provider to provide mental health services this amendment might lead to us needing to join an additional party to this litigation certainly we would not have been in a position to depose any treating physicians physicians that arrived at this post traumatic stress disorder diagnosis of the defendant so her diagnosing physician perhaps a treating physician perhaps an expert in post traumatic stress disorder and i would note that while plaintiff indicates that he filed t amendment within the time frame and it was in fact even the at the very deadline of filing amendments and that this amendment is not clarify a position it really alleges a brand new lawsuit i believe that plaintiffs reliance on the new case this court's recent decision is somewhat insufficient and i would say that  twelve b sixty age the case was dismissed without prejudice so certainly defendants in that case could have contemplated a refiling second of all there had not been the protracted years of discovery that that we had been through in this particular case and also what i think is compelling is the fact that the facts alleged in the initial complaint in the do deal with searches pacifically searches of a person and searches of a vehicle the defendant in that case the law enforcement agenc would have been in control of the records related to their interaction with plaintiff and yet still in other words could have been put on notice that there was a search of a vehicle in addition to search of a business or search for person in this particular case the additional facts that are being brought in here are solely within the care custody of can and control of the plant there is no way defendants would have been on notice of her mental health diagnosis of her d or that she was having a flashback incident the fact is that in the answer to the fourth amended complaint those allegations were neither admitted or denied i would also distinguish the king versus kramer case in that particular case the facts again were known to both parties so in other words the fact that the plaintiff it kramer was a pretrial detainee did not take anybody in that case at surprise rather it was changing that the legal standard in a way that nobody was surprised by taken aback by and contrast johnson versus methodist medical center th relied on by defendants this court noticed noted that the preceding complaints made very specific allegations of medical malpractise and that it was not unreasonable for the defendants to have been taken by surprise in that particular case the court also noted in johnson that the parties would have to engage in substantial additional discovery in engage in litigation on an entirely new claim not a new theory but a new claim for years in that case after the litigation had jail uniforms to court for initial appearances they did so it well and the district judge seem to find it as an undisputed fact that nobody could that the deposition of a sheriff jeff boyd which was attached to a motion for summary judgment indicates that there's a variety of ways that an individual in the custody of the regular county jail could get way under where they can make a phone call the jail allows that to have the we contract with an outside service provider and i have looked through the items that we provide and there was nothing that struck me like the cost associated with no i don't believe so why believe that even our inmates that are suicidal so is that cannot have a standard shield issued uniform because of the threat to themselves are still given a covering of some sort  what's the constitutional basis for that  i don't know somebody with dignity i would imagine yes in several relevant amendments to one of the things that i guess i found most concerning here  on this subject is that well i'm sorry one other woman question does the same policy apply in the men's part of the jail gets in today so you could have somebody who's sick who's  intestinal problems woman who's have your period so true be brought into court in jail soiled jail uniforms no clothes no underwear right i would not say that they would be brought into court in soil jail uniforms no one of the things that is addressed in jeffrey boy's deposition is that inmates are given a hygiene kits all inmates are when they're brought into the regular county jail that includes them and hygiene products for female detainees at least not for m detainee's but they are given so and toothpaste on a tooth brush so on and so forth so no i don't believe that there would be it issue of soiled garments the the jail also has a medical staff present during the first and second shift i'm so i imagine any medical needs would be seen to by that by the medical personnel one of the things that concerns really from your argument in your brief is that we're told this is this is an important policy in order to prevent this private private tattoo each from being developed right that's right that's what somebody told s he also indicated that he consulted with the american correctional association guidelines and sat sought out guidelines from other accredited facilities so if you read the deposition as a whole i'm not sure where specifically in looking at all of those things because he used to put together the jail policy and procedure manual that attacks and think came from well the concern i have is that the evidence before us indicates that this policy was not consistently applied detainees do detainees were often permitted to wear colored underwear or word without the knowledge of corrections staff that's from your brief that's correct and that's supported by the individual correctional officers deposition testimony which was that they would it dept deposition taken of correctional officer jodi barton indicated she would not require pregnant females to remove their underwear  to at least to me this policy that certainly has significant dignity implications for jail detainees is awfully thin i would contest the assertion that it has significant dignity implication and we would i would in looking at the context of the particular litigants before the court has been no attempt by plaintiff to distinguish ones who may have been in a jail uniform without underwear for a matter of minutes because someone was posting bond for them for a prolonged period of time which might raise a dignity concern  or for a very brief period of time until they were evil able to get up to the blocks in order underwrite a kiosk or have a friend or family member bring them i do believe that he briefed period of detention without undergarments and again some of particular affront to their dignity to be maintained in clothing without underwear is undercut to some extent by the fact that they arrived without underwear to speak certainly we've all been in the context of  medical provider there are moments when we as humans don't give up our dignity but nevertheless have a brief moment of disrobing or for being present in a situation without our undergarments on you don't think there's a difference between voluntarily going in to see a doctor and going through a jail intake process with multiple guards around you i don't know that applied to these particular litigants that there would have been multiple guards i think that the facts would show that most of these women didn't change in front of anybody if they were the operative they were allowed to just row behind closed doors and if we're talking about dignity concerns merely by be in a situation where they had a clothing garment touching their skin that they didn't have an undergarment to protect of layer i guess between then i do not see the distinction between  issue is that plaintiff was asked about her p t s d her deposition she also had disclosed her doctors and those depositions had been scheduled but but didn't go forward after the amendment unless there are other questions with