may please the court my name is french miles back and i'm honored to represent the appellate mr james rainer this eighth amendment case is about the brutal attack on mr rayner and the evidence that the defendant mr pugh chose to watch and laugh at severity of mr rayner's injuries and second and even more egregious the district court mr raynor in an impossible position by blocking all discovery of evidence and then faulting mr raynor for a lack of  rayner had the same opportunity the same reasonable opportunity for discovery that all civil litigants ordinarily enjoy it would be even more clear that this case is one for a jury to decide it on that point about discovery what exactly is your argument with respect to the x in other words you are using the district court should have on its own pointed what are you what is your argument what you actually there's i think there's two separate arguments to the argument i was just referring to is that the district court entered a discovery state i understand that like what should it have done it should have closed that discovery stay before entering summary judgment and that's a general rule in the summer drug qualified immunity question yes it should have ruled on the qualified immunity question by saying that qualified immunity is not appropriate because i don't think mr pugh has disputed that mystery nor has a clearly established right to be protected from inmate violence when pew is aware that that violence is going to take place so the district court when it reached the qualified immunity question it should have denied qualified immunity and at that time there was no reason for the discovery stage remain in effect and so it should have allowed discovery to take necessary ok so then what would have happened what would have happened is that mr reiner would have had access to discovery to several important categories of evidence the most obvious of which is the security video itself which would have confirmed his version of events it would have confirmed hughes deliberate indifference to the attack you know i hear you on that that's why i'm trying to focus on the whole medical thing yes which you will remember was your second argument you set it up and that was your second argument so what i'm wondering is what in your view should have happened was it just a court required to look at the x rays or sell it she have to appoint an expert what what is it that you think should have happened that didn't happen yet as to that argument she the district court should have considered that evidence it's probative evidence of a serious injury i don't think a medical expert was necessary at all to interpret those because to be clear the evidence was not x rays the evidence was a radiologist report interpret those x ray so maybe an expert should have been appointed if all the evidence we had was the x rays themselves but that's not what's at issue here we had a radiologist who interpreted the x rays and provided the diagnosis in long time to complain after the fact about this incident is not correct about his serious back injury no not at all you run into a complaint after the incident and then he waited several months well your hon only appears in the evidence now because mr reiner was not allowed discovery he was not provided his medical records which he requested multiple times and mr reiner expects that if those medical records are complete and accurate they will reflect that in january in the same month of the attack he was already complaining about back pain and continued to complain he inserted there are some records from february march april that somehow there are further complaint i don't read anything in your of us yesterday and we had the incident took place in january that's right and we have no complaints about it until four four months right as the record stands now and that record is incomplete because there hasn't been discovery to flesh out the record well there are going to be any more records i mean are you making the claim that they're like we just established if you weren't making that claim that they're hiding records so that the records are completely that you're out of what i'm saying is that mr rayner doesn't have the records the records are in the possession of the commonwealth and so we need to discovery to get access to those records so that we could flesh out the record in if there are no complaints in those four months there's still evidence that they're still evidence that mr rayner was complaining during that time he says in the in the inmate complaints that are submitted with his opposition to the summary judgment that he has been complaining to medical ever since january tenth that he sent back pain so there is already evidence sufficient evidence in the record to conclude that he was complaining during that time you're saying he was compliant all  exactly if you look at it in a light which variable to him is that what you're saying that's exactly right and that's required on summary judgment but to the extent there's any question about that out there it's it would be unfair to blame mr rayner for not filling it in when he didn't have those records that will fill it in once he's given access to that but your argument isn't i thought you just told me dependent on those records filling it in because those records i mean you you may be prepared to believe that the withholding records from you i'm not sure i'm prepared to believe that but what you're i thought your argument was in any event he or allee was complaining and they may not have made a record that it's not withholding records isn't that what you're saying yes you're  that he has not been given access to them through discovery or other records that exist right that's right mr rayner believes that there will be records that reflect the complaints that he made journals you're going to do besides get the rest of the it the commonwealth has not denied that it exists and on summary judgment that's an inference that should be granted mr rayner's favor that there is a security video and that it will confirm his version of events of course we ways first he had advance knowledge that this attack would take place and he did nothing to prevent it and second he saw the attack as it unfolded and did nothing to stop it now starting with the advanced warning in the verified complaint mr raynor testifies to this exchange immediately before the attack where his cellmate mullens tells people to his face if you make me move cells i'm going to attack him and puce response i don't if you're moving cells if you're going to segregation and then mullins replies it's on so that shows deliberate indifference it shows that pew had actual wariness that there is a substantial risk that this attack was going to take place and he disregarded it he said i don't care he sent both men into the cell and that prompted the attack now the second way that he was deliberately indifferent is that he saw the attack as as it was under way and failed to stop it here mr raynor seven shows that you stood nearby watched the attack as it unfolded smiled and even laughed but did nothing to stop it he had a radio in his hand that he could have used court has actually found deliberate indifference and basically identical fact that's the current case we ask that you apply hartmann to its twin here and cartman again the officer smiled and watched as the attack took place and this court said that was deliberate indifference because he was actually watching the attack and he unreasonably delayed in breaking it up and that's exactly what we have here so we ask you to reverse based on that straightforward application cartman now also address the evidence that mr rayner suffered serious injuries in this attack his head and shows that he suffers from severe back pain chronic severe back pain it's actually the state has suggested that mr her had medical issues before and there's certainly evidence that he's had medical issues but there's no evidence that his medical issues including this chronic severe back pain could actually flow cam up out of his sleeve and that what the falls the falls after january because by numbness in his legs that started after the attack and cheney well he needed somebody in prison to take care of him before that that's how did it all rose yes that's right rhonda because he had he had a host of medical issues he had blood problems and breathing issues but i don't think there's any evidence that he suffered the sort of chronic severe back pain and numbness that caused about back problems yes and it's very important what those x rays say because none of the x rays in two thousand and twelve and before show this specific disease this degenerative disc disease in this location that's new in two thousand and thirteen after the attack but there's other evidence that corroborates that there's the attack itself think it's important to remember what's alleged that this attack not a large man in the commonwealth has a three hundred pound man from his feet on to his tailbone and spine and jury could easily conclude that that amount of force would cause a serious spinal injury then there's the testimonial evidence of course was a concrete floor that's not yet i don't know your  not in the record but that may be the sort of thing that you could determine from the security video which would also show exactly what happened how he landed there's also the wheelchair there's undisputed evidence that prison officials gave mr reiner a wheelchair in may because he was complaining about complications from this attack specifically the numbness in his legs was causing him to fall and suffer injuries and and we've already talked about the radiology course which showed the onset of this new new condition in this new area of his back now the district court despite all of that said there is no quote definitive evidence of back pain that was there definitive evidence is not the summary judgment stage all that mr raynor needed to will i've enjoyed working with him and i will ask my firm to continue the representation and finally i'd like to flesh out with my remaining time this argument about discovery because i think this is very important to understanding the state of the record in this case which which could be more complete and here the district violated the general rule which is that you can't have summary judgment without a reasonable opportunity for discovery and to be zero opportunity for discovery here now there may be an exception when discovery would be irrelevant to a controlling question of law like is the right clearly established but as i said that question is not a summary judgment question is there enough evidence to go to a jury when that's the question you need an opportunity to collect that evidence through discovery and here mr annan was adamant that he needed discovery to get the security video to get the prison investigation reports to see what mr pugh knew and when and his medical records to flesh out the evidence of his serious injury and so for that reason he was ever to grant summary judgment for a lack of evidence when he was prevented from gathering evidence through and the court's colloquy with counsel illuminated some of the deliberate indifference problem but i really want to focus on the severe injury problem because i think that's what is really fatal to mr rayner's case some of the lack of discovery so the well the evidence that would have been dispositive in this case the kinds of things that would show a severe injury were not things that were outside of mr reiner skin troll things such as grievances and medical records which he could've requested from v d a c under what he he would have shown he had no problem that you stop the study of discovery you said you were going to move for judgment on qualified immunity that's correct you do that it is you asked for jump on qualified immunity  not he was not able to get discovery on the things that he requested but the things he requested were not relevant to the serious injury problem which is itself dispositive he didn't need discovery to get evidence of his own medical condition he didn't so he was able to put forward grievances complaints all the types of things that happened in august of two thousand and thirteen when he fell in the shower he submitted so i think seven grievances some in the same day regarding his slip and fall in the shower in august but there was nothing from january to august that would evidence a severe and serious injury i mean his claim is that he has been in serious debilitating pain agonizing pain the our belief is that the discovery would fully validate what what we've been saying but my point now is that he didn't need to scupper a two to get together the evidence that he would have needed to to validate his claim the kinds of things that he was looking for he wanted he wanted a statement from a mental health officer about whether he had requested a caretaker two months before the incident he didn't try to depose the nurse he didn't try to depose anybody his differences were in place so it didn't matter i mean you think you shouldn't just filed a bunch of discovery motions even though the discovery order was in place well under rule fifty sixty is the court knows if there are facts constitutional violation found one of the things i would point out point out about discovery is that reiner said in his filings with the court the things that the court did consider that those were the items that he believes would show that he was seriously injured and this is that joint appendix want to one he said here are the things that are going to show it's my radiological report and it's it's the affidavit that i submitted the radiology report does show different injuries  had been shown prior i mean notwithstanding what you say notwithstanding what the district court says if you line them up there are different parts of the spine if it that's true there are different reports that it was taken eight months after the incident there is no showing of causation there's no showing of whether it's a severe injury and you know even if you even if you look at it and he attributes the the x rays being needed to the fact that there was this incident in january and in previous radiological records in august of two thousand and five in april two thousand and twelve the reason for the exam listed on the radiology reports was the inmate fell in the kitchen or the inmate it you just hypothesize he is correct that he was hurt and that therefore it is more difficult for him to move that leads to more but obesity and that the pain can i know from actual personal experience that you can have an injury and it can get worse and worse and worse if you finally complain about it that may all be wrong but that is possible on this record but i do with respect i don't think it is your honor because alleges that the injury occurred on general tense twenty five eighteen and that it has been agonizing debilitating until italian pain since then including the loss of his legs but if you look at the record if you look at the contemporaneous medical why would not be accepted for opposing parties tell two different stories one of which is blatantly contradicted by the record so that no reasonable jury could believe that a court should not adopt that version of the facts that's the problem i believe there is kind of injury what i would point out to the court in terms of being blatantly contradicted by the weapon the the record is that there's no medical record from any time whether right after the incident or any time since then that he had a severe injury  in the few weeks after the incident when the rainer was going through the grievance process within the prison and was discussing the incident talking about being hit by moleyns he didn't mention any spinal injury from that he complains about his t v getting broken but says nothing about any back pain or loss of use of his legs in fact the record shows that three months later and april twenty third teen he was still working in the kitchen there was a reference made to may two thousand and thirteen when he requested a caretaker layperson would easily recognize the necessity for a doctor's attention that was in the jacksonville lights see a case last year i think judgments you were on that and the point is if that for seven months following the incident seven months rainer did not once seek medical help for this allegedly severe debilitating agonizing pain so by that standard it cannot possibly be a sufficiently serious injury if he never once raised his hand said i need help he had no problem submitting grievances files showing that he asked for medical help from august on but what about that seven month period by the time he did start submitting prudence's he  admitted he had fallen in the shower so there is no even if there is a severe injury and i don't i don't you know at this point in twenty fifteen who knows whether he does or not but at the time there's been no showing of severe injury let alone any causation that connects it to the january incident eight months before the x rays were taken he argues that well the fact that x rays were even taken at all shows that they were was a serious condition but of course x rays just the way you take your temperature are meant to see whether there is a fever you want to see whether there's an issue and he submitted no expert testimony or no no he had a verified complaint that's that's what he needs those are his allegations they're i think the district court's opinion could have been could've been longer and more detailed but i'm not thinking of any district court say that the injuries predated it exactly the same injuries and others didn't pick up the difference in the x rays  i'm not aware of that your honor but you've sure you know this is just a court opinion bear and i do so if you tell me that you stand by everything but i think the district court's opinion said that what we need here is expert testimony we don't need a layperson we don't need brain  affidavits counter affidavits you should you should do that and he didn't submit an affidavit in this in his complaint he did he did submit an affidavit but nothing that would eliminate the meaning of the radiological reports it's not for the court to read the the pleadings broadly of course but he's still subject to the roseboro not as the court told him exactly what he needed to do he did have the ability if he chose to ask for a lifting of the discovery stay he could have  us whether it exists or not you represent the state of virginia com well great commonwealth why don't you know why there's a video i have made inquiries and the answer is we don't know whether we have the video i don't think it's relevant though to determining whether or not there is a serious debilitating injury here and that's that's the evidence that he was asking for was the video he was also asking for you know complaints against pew and other matters but it's what's dispositive is the lack of a serious injury here for seven months seven months he made no no allegation that he was in pain he didn't try to reach out to to to get help whether it was  you know during the realism of those are all really the facts of monaco's we haven't had discovery and you're well if you're on earth he said that the things that he was putting forward showed that there was a serious injury and he put that verified complaint as judge mark pointed out to a couple times you've got to verify a complaint that's his affidavit but you can't you can't accept that it's true you cannot just get past summary judgment and it makes it a total ne that you can just say no i swear it's true i mean the kind of things that swore to what was that you know despite the fact that the two of them the incident and there was medical treatment he swore oh don't don't worry about one of them what's in there will look my blood pressure it's one twenty six over  hundred i'm standing under oath that my blood pressure was high because of the severe spinal injury he was from joining the discovery so as for clothes from putting on an expert of his own i mean i don't understand really the state's position here because if you well maybe right but he didn't have any tools to do anything more than he did your arm did have new records that show a different injury you say it's not significant but i'm not sure that either you or i are qualified to interpret these x rays that just the court said he wasn't which i certainly understand but then she said you can't do you can't do a new discovery everything's frozen because i'm going to decide on call the new well there is no is assertion your honor that he he tried to get an expert and was not able to he was able you know by the terms of the court's own order and given the roseboro notice he was able to submit counter affidavits and any any exhibits or evidence that he would like to validate his case and he believed that the things that he was putting forward were enough he said that this is what i need he was able to put forward lots of grievances from august twenty thirty and on they just didn't have anything to do with the january incident it just it's just incomprehensible that somebody would be an agonizing serious debilitating pain for seven months before they would raise their hand and say i'm in pain again this court said in jacksonville who said seven months  to give him the fact that we would agree with that would you yes but what i would what i would point out is that the four months that he's referring to which again is an incredibly long time i believe the event in ma references trouble falling he doesn't attribute it to the january twenty third incident under tribute to it he said i have seizures and i fall and i need i need a caretaker so i just i just don't think a rational fact finder would conclude a fair minded jury would conclude that that the evidence would would validate his his position but it may not the question is whether there is a question unless you are willing to say on the basis of his the facts as to who it is verify from playing the statement and that's not the argument you've made it it's not but what i'm what i'm saying is your honor that he did not have he did not have trouble putting forward the information that he thought would prove his case he said i had this affidavit of a radiological exhibit that's enough he asked for evidence that didn't go towards showing a spinal injury and the things that he did put forward which were entirely in his control if he had requested help he could have put forward the evidence that he did but there wasn't any there wasn't any and when his assertion is just that a naked assertion that is totally contradicted by the record then then the then the court doesn't have to have it doesn't have  to hold back from granting summary judgment that's that's what the scott case said there was a similar case judge here and i think you were on that robinson versus prince george's county maryland this is a few years ago and the question there was a test there was testimony about whether a shooter had fired a gun and there was testimony saying oh he shot the gun but there was no evidence to back that up and the court relying on scott said look when there's when there's no evidence that support assertion like that then then you can still grant summary judgment so i don't think anybody disagrees with you i just think you have to look at the record in this case i mean he does change he does have new x rays he has his verified complaint he has a witness and you know it's just not the same as having a film that goes the other way it just which is what the supreme court case what it now w but you don't know and we don't know if there is as we don't know what is what i would say in response is that the film doesn't go to whether there was a serious injury i think what's much more telling is that for seven months he never much thank you your honor one quick correction and two points on the may incident that we're referring to is documented at j a one eighty six it is not it doesn't deal with the caretaker it deals with his request for a wheelchair and it phatic yes now i'd like to address quickly this point on this cover of medical records because i think what happens here is that the commonwealth has run out the clock and it's only on appeal as the common law said oh you didn't you don't need discovery you could have gotten those anyway through this process and we don't even know if the process that becoming what this referring to was the process in effect at the time all we have is this unsworn statement in the commonwealth's brief on appeal and the grievances that have been filed in this case do show that mr rayner had medical appointments throughout this time and we don't have the notes from those appointments we don't have those medical records you see all over the one of six one on one sixty seven one sixty eight evidence that there were these appointments i'd also like to address the commonwealth's point on that point when the i take it he didn't for summary judgment one ok you go ahead i didn't mean to interrupt you but if you were saying that this was these were after the fact the state's argument here with respect to medical records is the first time it's come up with them the state's argument that mr raynor had access to them without discovery yes that argument doesn't appear in the summary judgment should come up also brought up rule fifty sixty which says that if you don't have enough time for discovery to post summary judgment you can request additional time to be clear that is exactly what mr raynor did he on the same day he filed his opposition to summary judgment he filed a motion to dismiss the protective order now he was pro se so it's maybe not as articulate as you might find from a counselled motion but what he's doing here is he's saying i need more evidence i need to scan every to be able to properly oppose this motion and this court said in the herods case that's three zero to a third at two forty believe it is a one in ninety four and finally i just like to address can't be harrison this point about the record lately contradicting an affidavit what you had in scott b harris was discovered and what you got from discovery was a video and that is what blatantly contradicted the affidavit in that case here it would be unusual to say the least to apply scott the harris to a record that has not been fleshed out by discovery because this