the next matter is anthony versus lester wright m d and others well for a minute more good morning and more honors my name is dan o'brien i'm an attorney from rochester new york and this case brings up for determination the question of whether or not the enhancement of the security regime during my client's civil trial posed an unacceptable risk of impermissible factors coming into play and which essentially prejudiced his rights and deprive him of due process so your client signed his papers with his real name can we use his real name we can your honor it's  it's in in a number of decisions name is anthony medina i just want to make sure ok continue this is an appeal from the judgment of the district court following a jury verdict in favor of the three individual defendants all employees of the new york state department of corrections and community supervision which we will refer to as docs the action below is commenced by mr medina an inmate and he asserted his claim on the forty two u included pain discomfort swelling the development of lumps underneath his nipples chafing and irritation and discomfort which was heightened in cold weather this diagnosis is spread across the record and is not in serious dispute the plaintiff sought surgery to address the condition and it was the refusal by docs medical professionals to afford him this treatment that led to the action now the record also reflects that mr medina suffers from photo phobia secondary to his character conus a cornea disease and it results in intense sensitivity to light which can cause pain headaches vertigo nausea and such when he is exposed  prolonged periods of time now great pains were taken in advance of the trial by judged your ac the chief judge of the western district presided over the trial and by me plaintiff's trial counsel to ensure that mr medina was properly medicated and otherwise prepared for trial so he could meaningful meaningfully participate in the trial and we submit that docs either willfully or with reckless disregard for his rights u the st morning of the trial failed to bring his reading device to the courthouse and most importantly did not give him appropriate medication notwithstanding a van operative injunction issued by judge prescott from the southern district that he that because i believe at the time he was housed in a facility within the southern district on the st day of the trial as it wore on the plaintiff became ill and more symptomatic by one pm he was in obvious distress and by two fifty five pm he had vomited several times and told his transport team that he was sick and needed to go to the hospital when judge jury c questioned him he said quote i'm in so much pain i am trying to go to the trial the trial went forward in mr medina's absence and although the record was never really well developed there was some sort of an incident as he was being transported back to wendy correctional facility all we know about what happened and all that's on the record is what judge jury she reported based upon what he had been told there was no fact finding hearing or no inquiry no interviewing of any of the actual participants other than my client who  clearly blamed whatever happened on his illness and the pain he was in and his lack of proper medication he took a lot of men took extra medication medication which on the record one of the corrections officer said was caffeine the next morning the nd day of the trial the three on armed and in conspicuous corrections officers from wendy were replaced by five armed members of an elite swat type force dressed in armored vests well i don't think that there's any dispute that he either kicked out a window was knocked out precisely what happened given his condition and none of the people who were in the van were brought in and questioned on the record so we don't really know other than it was obviously treated as  a serious event on my client's part because as i say the next day instead of the three corrections officers from wendy who were unarmed we had five armed  i complained about the the enhanced security and the judge said he brought this on himself i thought the best i could do was to ask them to at least take their sidearms off and not have them in the courtroom and the judge refused to do that so our position is that because of the failure to properly medicare medicaid him this incident happened and it's not just my opinion your honor the disciplinary proceeding that was instituted as a result of this incident they found against him administratively it was set aside by the supreme court justice on article seventy eight proceeding but more importantly contest had a contempt hearing in late two thousand and seventeen or early two thousand and eighteen and issued a ninety two page opinion and found that  docs was in contempt for not providing mr medina with the proper alternate medication to the ultron and in fact made particular reference to the they are to provide him with appropriate medication in advance of this trial she said that docs medical personnel quote willfully denied mr medina effective pain treatment for his court appearance meaning in rochester for this trial the government is not appeal that and i believe that that docs was responsible for this incident and therefore he was deprived of of a fair trial through no fault of his own and that's what this was so this was not a criminal case where you  case involving a man who was incarcerated in a penitentiary i mean what's a pretty well the prejudice is that when in the middle of a trial you go from having three in conspicuous corrections officers who are not particularly imposing and the nd day you have five uniformed officers with kevlar vests and side arms all of whom were probably six foot two or taller  and and no explanation that the only thing the judge would do is give a very generic charge saying you're not to speculate as to the reason for security now they can understand why the corrections officers are going to be there but they're only going to speculate about why in the middle of the trial we have five of these people there in each one in every corner and then one is seated the jury is bound to speculate and remember this is a guy who's legally blind he was sick the afternoon of the st day of the trial so i believe your honor that the only inference that could be drawn is that the jury is going to think that this is a very dangerous question there there is no prejudice here and this is not like that where physical restraints are being used so unlike in that case the use of our uniformed officers is not inherently prejudicial so the plaintiffs from shackles to case this court and supreme court has upheld that the use of armed and uniformed guards is not inherently prejudicial so that actual prejudiced prejudice must be shown there is no evidence in the record to support that and the district court did make a determination that was individual ised here it had of course before and during the trial made extensive accommodations for plaintiffs disability including turning off eighty percent of the courtroom lights offering to adjourn the proceedings which the plaintiff rejected  and here really took other steps to minimize any possible prejudice like curative instructions to the jury about plaintiff's custodial status and the lighting and the like and it also did grant councils alternative pulling their was an alternative request that the guards be seated if they were not going to be disarmed and they were seated they were seated the judge did permit that if i could address just press because decision the state of course disagrees with the decision and are reserving a right to appeal that time has not started running because judge prescott did not actually assess the final amount of damages and to whom the contempt would apply so there's no what cause plaintive to become violent even if we assume that judge prescott's findings are correct and if they were not appealed and up from by this court even assuming it was a medical or medication issue that does not make the district court ruling an abuse of discretion because there is no question that he engaged in the violent conduct that occurred as counsel here has conceded and even judge pressed on her decision found that the plaintiff acknowledged smashing out the van windows  after the trial so the district court had to exercise its discretion in the record it's in judge prescott's decision and it's in the record fair and what's in our record here is that there was no dispute raised right that's right there was no dispute about that and so in that circumstance under such a serious concern that was presented the trial judge had to do something to protect the security of the courtroom and those in it and you know whatever the cause of that may have been and the the p i in place at the time it did provide for alternative medications that could be effective to be used it was not fully determined and resolved by judge prescott at that time there was still continuing litigation going on in the southern district about what medications those could include so the judge had the most current information and made a reasonable balance decision under the circumstances again giving the cautionary instructions and providing additional protections against any possible prejudice but even assuming there were to be any error that this court would find we submit that it was harmless and that the there's no reason to believe in the record that the presence of the armed officers  affected the verdict at all most importantly because the evidence in defendant's favor was overwhelming there's no reasonable jury that could have found plaintiff established defendants were deliberately indifferent to a safe efficiently serious medical need that produced in his case extreme pain the medical staff agreed that plaintiff's condition was benign and was not medically it's you need the surgery that he requested was not medically necessary plaintiff did not call a medical expert to contradict that judgment even the nurse nurse north whose testimony plaintiff relies on extensively in his brief also said that surgery might not be appropriate and she didn't know if it would be appropriate in plaintiff's own testimony established that his pain was sporadic and did not prevent him from participating is then a legitimate reason it's legitimate to not want to be assaulted for sure but whether a surgical procedure with its own risks and complications is medically necessary is a very different question and he told the jury that the issue of his pain and discomfort to the extent that he felt that was secondary and you know primarily for the appearance of it because it led to that harassment there are other factors in the harmless error analysis of course the need for additional security measures did not go to the underlying substantive question on the medical insurance claim it the underlying issues did not hands on the plaintiffs credibility and again the district court took the additional precautions to minimize the prejudice  evidence they were visible they were all armed yes there's no record evidence that the jury that because they were seated that there are arms excuse me weapons could be used by that you were not there right i did your honor so could you see the guns they were clearly visible to me and they were not seated the entire time during the entire proceeding and indeed my recollection is that there was no way anybody sitting on the jury could not perceive the fact that they were armed they were they were there and i was in as i say in their swat type uniforms and and that was paid now the only uniform right correct now i just want to dress a couple of quick points there was no agreement or stipulation or deter outright determination expressed determination as to what happened in the van there was some statements by judge jury see on the record as to what he was told and there was some questioning of my client but it was by no means established that something had happened that my client was responsive ask for a hearing on  for a hearing i didn't ask for a hearing but i stated my objection i think fairly persuasively as to why i thought it would be prejudicial my client and i challenge his assertion that my client brought this on himself course of it you disputed the reason for it but you didn't dispute the fact that it happened i did not dispute the fact that something happened but it was never of clear on the record what what did happen or or even what the judge was basing his decision that my client essentially deserve this enhanced security but in so far as making an expressed request for a independent hearing during the trial you're you're right i did not do that i'll concede that  that the record was not adequately developed with respect to our objection to the enhanced security and on the harmless error issue i have addressed that in our reply brief our point is that under the standards that doctor adopted if you have a diagnosis of gynecomastia and pain which was evident in the record then you're entitled to the surgery i didn't need nurse northrup to testify to that because that was what lester wright who was a deputy superintendent of doc said in his response to the iraq authorities the big question here is not is the presence of armed guards prejudicial the question here is in the middle of a trial after the client has been excused from the afternoon's proceedings because of illness is that appropriate to then change the regime in such a dramatic and prejudicial way without allowing or without expecting that the jury is going to speculate and essentially come to the conclusion that this guy is really a bad dude and we're not going to give him any justice in this court thank you counsel thank you both a little reserved assistant