[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
May it please the court.

[00:00:04] Speaker 03:
Heidi Perry Stern on behalf of Tyler Randall.

[00:00:07] Speaker 03:
This court can decide this case based on the second requirement of qualified immunity.

[00:00:14] Speaker 03:
And that is that there was no clearly established right that Gorsline is alleging in this case that was violated by Mr. Randall.

[00:00:25] Speaker 03:
The only case that the district court relied on and the only case that Gorsline has relied on here

[00:00:31] Speaker 03:
is the LW versus Grubbs case.

[00:00:34] Speaker 03:
And that case does not provide a clearly established right in these circumstances.

[00:00:42] Speaker 03:
And that's because this court does not find a clearly established right at that high of a level of generality.

[00:00:51] Speaker 04:
Most of them.

[00:00:51] Speaker 04:
Let me kind of focus you in terms of, I mean, obviously something really horrible happened here.

[00:00:57] Speaker 04:
And I know that it

[00:01:02] Speaker 04:
seems like it was preventable, but we're not here on a negligence claim.

[00:01:07] Speaker 04:
So there's not a negligence.

[00:01:10] Speaker 04:
I mean, could the individual that was injured have brought a negligence claim?

[00:01:19] Speaker 03:
In state courts?

[00:01:20] Speaker 03:
Yes.

[00:01:21] Speaker 03:
Probably so, yes.

[00:01:22] Speaker 04:
I think that that's- But this is within the context of a 1983.

[00:01:26] Speaker 04:
Correct.

[00:01:31] Speaker 04:
I struggle with, we obviously have to give all inferences in favor of Aja Gorsling here, but my understanding of what we have before us is that a correctional officer went to the bathroom

[00:01:54] Speaker 04:
and left a woman alone and a guy came in that was a prisoner and really hurt her and attacked her.

[00:02:14] Speaker 04:
On the deliberate indifference prong here, what evidence is there of deliberate indifference?

[00:02:19] Speaker 03:
Okay.

[00:02:19] Speaker 03:
So going to the deliberate indifference prong, I'll remind this court that it's a subjective test.

[00:02:25] Speaker 03:
So it's if a person in Randall's position, he would have had to have been aware of the danger and taken a risk with indifference to Gorsline safety.

[00:02:36] Speaker 03:
In this case,

[00:02:38] Speaker 03:
there's really no dispute that he was not aware of the danger.

[00:02:41] Speaker 03:
At the very most, he was aware of a generalized danger that they were in a prison, but... Yeah, and there's bad people in prisons.

[00:02:50] Speaker 03:
Yes.

[00:02:50] Speaker 03:
They generally... Correct.

[00:02:52] Speaker 03:
However, in this case, I think it's important to note that the inmate at issue, Cuckindale, he was in a medium security facility.

[00:03:04] Speaker 03:
And he had a background that perhaps would have led him to be placed in a maximum security facility.

[00:03:10] Speaker 03:
And he had in fact been at such a facility previously, but there is no allegation that Randall knew of that.

[00:03:19] Speaker 03:
I'll even point out that there's no allegation in the complaint that Randall took any act

[00:03:26] Speaker 03:
to allow Cuckindale to come into the activity room.

[00:03:29] Speaker 03:
Everything in the complaint, if you look at it, is written in a passive voice.

[00:03:33] Speaker 03:
There's no allegation that Randall left the Sallyport doors open.

[00:03:37] Speaker 03:
there's no allegation that he knew that Kukendale was wandering around, or that any other inmate was.

[00:03:43] Speaker 02:
Don't we have to, as Judge Callahan just pointed out, construe the allegations in the light most favorable to Ms.

[00:03:49] Speaker 02:
Gorsline?

[00:03:50] Speaker 02:
Yes.

[00:03:51] Speaker 02:
And so we don't really know what Mr. Randall knows or doesn't know about who the inmate population was in that housing unit.

[00:04:00] Speaker 02:
I guess my question is, don't these questions about deliberate indifference usually turn on triable questions of fact that would go on to a jury to decide what was actually known at the time?

[00:04:12] Speaker 03:
If Gorisline had pled them, yes.

[00:04:14] Speaker 03:
But she has not pled them here.

[00:04:16] Speaker 02:
I mean, she has pled that this was a unit of 167 inmates.

[00:04:20] Speaker 02:
This particular inmate happened to be there and gained access.

[00:04:27] Speaker 02:
She has said that the only way that he could gain access is by someone not manning this Sally Port door, that he abandoned that post and that she was harmed as a result.

[00:04:37] Speaker 03:
I don't think she says that.

[00:04:39] Speaker 03:
last part that there was no way for him to access other than.

[00:04:43] Speaker 02:
Well, there was no other officer.

[00:04:45] Speaker 02:
I mean, she does allege that he was the only officer working at that post.

[00:04:48] Speaker 03:
At that unit, yes.

[00:04:49] Speaker 02:
Okay.

[00:04:50] Speaker 02:
So why isn't it a reasonable inference that if he's the only officer manning that post and after leaving, the inmate was able to pass that it was that action that caused the entry.

[00:05:04] Speaker 02:
Why isn't that a reasonable inference at least for purposes of getting to a trial?

[00:05:09] Speaker 03:
because it doesn't meet the standards of deliberate indifference and because it doesn't fit with this court's prior case law as to what clearly established law is.

[00:05:18] Speaker 03:
The standard is just too high.

[00:05:23] Speaker 03:
So, for example, this court has never found that qualified immunity

[00:05:30] Speaker 03:
Sorry, let me back up a little bit, I'm sorry.

[00:05:33] Speaker 03:
This court has never found a clearly established right where there's no use of state power.

[00:05:41] Speaker 03:
Okay, so this case, unlike Grubbs, for example, does not involve a use of power.

[00:05:49] Speaker 02:
Grubbs was a supervisor.

[00:05:52] Speaker 02:
So I will say this, I think Grubbs has some guidance, but I think Wood versus Ostrander, the case about the police officer straining a woman after the driver was arrested for a DUI in a high crime neighborhood and then I think she was subsequently attacked.

[00:06:12] Speaker 02:
I think that has as much bearing, if not more, on the clearly established law side of this.

[00:06:19] Speaker 02:
And that was a case where the use of official power was a cause in this attack, at least as it was alleged.

[00:06:29] Speaker 02:
Here you have Mr. Randall being a corrections officer, showing up at work, this is his job, and if he abandoned his post and that resulted in the attack, why isn't that a use, an exercise of state power in your mind?

[00:06:46] Speaker 03:
It's just not enough of a misstep.

[00:06:54] Speaker 03:
It's an affirmative act.

[00:06:55] Speaker 03:
He doesn't have control to tell Gorsline what to do in the way a police officer has or a supervisor, in the case of Grubbs, has the ability to tell or put a person in a certain situation.

[00:07:10] Speaker 03:
So he's not affirmatively putting Gorsline

[00:07:14] Speaker 03:
in a situation.

[00:07:16] Speaker 01:
If there are people in custody who could present a danger for a variety of reasons, why wouldn't Mr. Randall have known that?

[00:07:23] Speaker 01:
And why wasn't then his affirmative decision to leave putting someone at risk?

[00:07:28] Speaker 03:
Because it's too generalized.

[00:07:29] Speaker 03:
It's not a particular harm.

[00:07:32] Speaker 02:
So why is it any more generalized than the officer?

[00:07:34] Speaker 02:
This is why I keep going back to Wood.

[00:07:37] Speaker 02:
Wood left the woman.

[00:07:39] Speaker 02:
I mean, he didn't have any particular power over the female passenger that was left stranded in this

[00:07:44] Speaker 02:
high crime neighborhood.

[00:07:45] Speaker 03:
He stranded her, so that was his power.

[00:07:47] Speaker 02:
Right, so the act of him stranding her seems analogous to me to the act of stranding Ms.

[00:07:54] Speaker 02:
Gorsline by abandoning his post.

[00:07:56] Speaker 02:
They both seem like versions of stranding someone in a high crime area, whether it's in prison or somewhere else.

[00:08:04] Speaker 03:
I would say that if Mr. Randall were in charge of placing Ms.

[00:08:09] Speaker 03:
Gorsline in a position where she was exposed to

[00:08:14] Speaker 03:
dangerous inmates that he knew were dangerous, that would be a very different case from what we have here.

[00:08:20] Speaker 04:
Would it be a different case if, hypothetically, let's say if Ms.

[00:08:26] Speaker 04:
Gorsline was a man and someone came in and beat him up?

[00:08:31] Speaker 04:
Would that be a different case?

[00:08:33] Speaker 04:
Then it seems that there's a sort of a gender component to this that I'm not sure really should matter.

[00:08:43] Speaker 04:
If he's responsible to make sure no one gets hurt there, then does it matter whether it's a woman or a man here?

[00:08:54] Speaker 03:
I think in order to answer that question, the court would have to go back to the standards that it applies to deliberate indifference and to the requirements for state-created danger.

[00:09:05] Speaker 03:
I can't answer that definitively for all men, all women, but I know that this court does look at, is there a foreseeable harm?

[00:09:15] Speaker 03:
Is there a particularized danger rather than a generalized danger?

[00:09:20] Speaker 03:
I'll try and hypothetically answer your question.

[00:09:23] Speaker 03:
There could be a case where a woman is more at risk, and so that's a more particularized danger.

[00:09:29] Speaker 03:
And this is not that case.

[00:09:31] Speaker 03:
There is no allegation that these inmates were

[00:09:37] Speaker 03:
that Randall knew these inmates were particularly prone to violence at all.

[00:09:43] Speaker 03:
It was not a maximum security situation.

[00:09:45] Speaker 04:
Is this an issue of leave to amend here?

[00:09:47] Speaker 04:
Because this is obviously at an early stage of the proceedings.

[00:09:52] Speaker 03:
Should it go further before?

[00:09:59] Speaker 03:
I don't think, Your Honor, I don't think amending, I think amending is futile here, essentially.

[00:10:04] Speaker 03:
Is there a request to amend?

[00:10:06] Speaker 03:
I know some people were dismissed down below and they were given leave to amend.

[00:10:10] Speaker 03:
Everyone was dismissed below, yes.

[00:10:12] Speaker 03:
And Randall was the one person left standing because he was the one sort of on the ground and because the court decided that Grubbs was enough of a clearly established law for him to follow.

[00:10:25] Speaker 03:
But no, I don't think that, let's put it this way.

[00:10:29] Speaker 03:
If Gore's line had a reason to believe that Randall knew of a danger, she could have easily put that in the complaint.

[00:10:42] Speaker 03:
Rather, the complaint actually lists a separate unknown defendant as the one who had that level of knowledge of harm.

[00:10:51] Speaker 03:
She could have put Randall in that position.

[00:10:54] Speaker 03:
And if the court would like, I can find that citation.

[00:10:57] Speaker 03:
But in the Second Amendment complaint,

[00:10:59] Speaker 03:
there's actually an allegation against a Doe defendant with that knowledge.

[00:11:05] Speaker 03:
I don't think that this is a case where remand is going to help the plaintiff.

[00:11:09] Speaker 02:
If the inmate had, and I don't mean to say justice about Randall whatsoever, but if the inmate had bribed a corrections officer about gaining passage through the Sallyport door and that resulted in an attack on Miss Gorsline, would you say that that was a different situation, that there was something more particularized there or state action?

[00:11:30] Speaker 03:
I think that would be an incredibly different situation because there would have then been

[00:11:35] Speaker 03:
an affirmative act to leave the Sallyport doors open.

[00:11:39] Speaker 03:
Here we don't have that allegation.

[00:11:41] Speaker 03:
There was no allegation that they were left open.

[00:11:44] Speaker 03:
There's not even an allegation that Randall facilitated the entry of Cuckindale, the inmate.

[00:11:51] Speaker 04:
Well, can we reasonably infer that Randall knew Unit 2B didn't have a floor officer staffed on the day of the assault?

[00:11:59] Speaker 03:
I think that that is alleged in the complaint.

[00:12:02] Speaker 03:
A floor officer, yes, because Randall is the control officer.

[00:12:05] Speaker 03:
So that is correct.

[00:12:06] Speaker 03:
They do allege that.

[00:12:07] Speaker 04:
So does it matter that he went to the bathroom as opposed to that he went somewhere else?

[00:12:13] Speaker 04:
Does that matter?

[00:12:15] Speaker 03:
That's a good question, Your Honor.

[00:12:17] Speaker 03:
I think it would matter in a negligence case.

[00:12:20] Speaker 03:
I don't think it matters when you're looking as to whether this is a constitutional claim or not.

[00:12:27] Speaker 03:
I think you can

[00:12:28] Speaker 03:
the bathroom component doesn't.

[00:12:31] Speaker 03:
Now, what might matter is that it was a short amount of time.

[00:12:34] Speaker 03:
That kind of thing might matter.

[00:12:37] Speaker 03:
What might matter is that he does hear her screaming and comes right back and gets help for her.

[00:12:45] Speaker 04:
I think Gorsling alleges that Cook and Dahl walked through the Sallyport doors three times between 9 and 9.30.

[00:12:55] Speaker 04:
Was this really a bathroom break?

[00:12:56] Speaker 04:
It seems like it.

[00:12:57] Speaker 03:
had lasted 30 minutes.

[00:13:00] Speaker 03:
I believe the complaint says it was 15 minutes at some point in a different paragraph.

[00:13:06] Speaker 03:
But that's what they believe it was.

[00:13:08] Speaker 03:
So I don't know whether that's.

[00:13:11] Speaker 03:
It says in the complaint it was a bathroom break.

[00:13:13] Speaker 03:
So I'm going by what's alleged there.

[00:13:15] Speaker 03:
So what's your position whether there was an affirmative act or not?

[00:13:19] Speaker 03:
Sure.

[00:13:24] Speaker 03:
I would say that there is an affirmative act in the sense that he did leave to go to the bathroom.

[00:13:29] Speaker 03:
So that is an affirmative act.

[00:13:30] Speaker 03:
However, it's not the kind of affirmative conduct that leads to a state-created danger.

[00:13:37] Speaker 03:
Those types of situations, this court has always found them to be an act that puts someone in a more dangerous position.

[00:13:47] Speaker 03:
It's an act that is knowing and deliberately indifferent.

[00:13:51] Speaker 03:
So even if there's an act that's just

[00:13:53] Speaker 03:
It's just an act.

[00:13:54] Speaker 03:
It's not enough to reach a constitutional violation.

[00:13:58] Speaker 03:
Could it be a negligence situation?

[00:14:01] Speaker 03:
Yes.

[00:14:02] Speaker 02:
If the complaint alleged that the only way that an inmate could get through those doors is if it was either allowed by Randall or he left his post, and that was the only way that someone could go through, would you say that that makes a difference then?

[00:14:22] Speaker 02:
if there was a direct... That he's the only gatekeeper to an inmate passing through into this protected area?

[00:14:30] Speaker 03:
I'm not sure.

[00:14:31] Speaker 03:
I think it would be enough if the complaint had stated he left the doors open, something like that.

[00:14:40] Speaker 03:
He left the doors open.

[00:14:42] Speaker 03:
That might be enough.

[00:14:44] Speaker 03:
But that's only partially enough, Your Honor.

[00:14:47] Speaker 03:
Why is that?

[00:14:48] Speaker 03:
That's enough to establish that he did something

[00:14:51] Speaker 03:
that's maybe more of an act than what actually happened here, or what's actually alleged.

[00:14:56] Speaker 03:
But it's still not enough for deliberate indifference, because there's no particularized danger.

[00:15:02] Speaker 03:
There is no immediate harm that he can foresee.

[00:15:05] Speaker 03:
And that's a requirement for the state-created danger doctrine, because this is a medium security facility.

[00:15:12] Speaker 02:
And I would just... One of the policies is for him to announce whenever a man walks in through the door.

[00:15:21] Speaker 03:
It's a little different than that.

[00:15:23] Speaker 03:
What is that policy?

[00:15:23] Speaker 03:
It's someone of the opposite sex.

[00:15:25] Speaker 02:
Someone of the... I'm sorry.

[00:15:26] Speaker 02:
So I guess there is a gender component in that, at least in the policy itself.

[00:15:30] Speaker 02:
Yeah.

[00:15:30] Speaker 03:
Kuckendale wouldn't have been announced if that's what you're... I'm not sure if that's what you're asking, but... He would not have been announced?

[00:15:35] Speaker 03:
I don't think so because he's an inmate in the prison and he's the same gender, so... Oh, and of an opposite sex to whom?

[00:15:42] Speaker 03:
of the inmate population.

[00:15:44] Speaker 03:
For example, I've toured the prisons in Nevada.

[00:15:46] Speaker 03:
They'll announce woman on the floor or something, female on the floor, something like that.

[00:15:51] Speaker 01:
If Randall had allowed Kugendall to enter, would that be an affirmative act?

[00:15:59] Speaker 03:
I don't know, because then he would have been there.

[00:16:01] Speaker 03:
And Kugendall was allowed to go to the activity center.

[00:16:05] Speaker 03:
It's not that he wasn't allowed.

[00:16:06] Speaker 03:
In fact, you look at the complaint, you see how the incident occurred.

[00:16:10] Speaker 03:
Gorsline let him in her office twice, you know.

[00:16:16] Speaker 03:
So he was allowed there.

[00:16:18] Speaker 03:
It's just that he had this propensity to violence that Randall wasn't aware of.

[00:16:25] Speaker 03:
I don't know if Gorsline was aware of it, perhaps not.

[00:16:28] Speaker 03:
But he was already allowed there.

[00:16:30] Speaker 03:
So.

[00:16:31] Speaker 04:
So you're saying that whatever, that the case that the district court relied on,

[00:16:38] Speaker 04:
does not cover this, and so his going to the bathroom as alleged and with all inferences would not have put him on notice that going to the bathroom.

[00:16:48] Speaker 03:
That's right.

[00:16:49] Speaker 03:
The requirement is that every reasonable corrections officer would know that his conduct violates the Constitution.

[00:16:59] Speaker 03:
And I do submit to this court that his bathroom break in a medium security facility

[00:17:06] Speaker 03:
where he returns within a few minutes does not meet the standard of this court.

[00:17:11] Speaker 04:
Okay, I realize we've asked you a lot of questions, so I'll give you two minutes on rebuttal.

[00:17:15] Speaker 04:
Thank you, I appreciate that, Your Honor.

[00:17:25] Speaker 04:
Good morning.

[00:17:26] Speaker 00:
Good morning, Your Honors.

[00:17:27] Speaker 00:
Let me grab my water real quick.

[00:17:37] Speaker 00:
May it please the court, Benjamin Rundall, for appellee Aja Gorslin.

[00:17:42] Speaker 00:
Your honor, this case is about a correctional officer working in an understaffed prison who created a danger to Ms.

[00:17:49] Speaker 00:
Gorslin by choosing to abandon his post manning Sallyport doors without first ensuring he had coverage.

[00:17:57] Speaker 00:
This affirmative action enhanced the danger to Ms.

[00:17:59] Speaker 00:
Gorslin, a caseworker with no weapons or radio,

[00:18:03] Speaker 00:
and resulted in her assault by a violent inmate who took advantage of the unlocked and unmanned doors to enter Ms.

[00:18:10] Speaker 00:
Gorsland's office.

[00:18:11] Speaker 02:
Ms.

[00:18:11] Speaker 02:
Rundle, can I ask you to start with counsel's argument that the allegations are insufficient to establish how the inmate Cookendale was able to get through the doors?

[00:18:25] Speaker 00:
Certainly, Your Honor.

[00:18:27] Speaker 00:
In terms of looking at the complaint, and I have some of the complaint sites here, I just don't think that that's true.

[00:18:33] Speaker 00:
Reading every inference in favor of plaintiff, we can look at, for example, EOR 104, which is the complaint, at paragraph 64.

[00:18:47] Speaker 00:
Very clearly there, plaintiff alleges that but four defendants' actions, which includes Randall, inmate Cuckindale would not have been able to enter Unit 2B.

[00:18:57] Speaker 00:
To get a little bit more specific and granular, Your Honor, I think that really here Officer Randall's position is critical.

[00:19:07] Speaker 00:
He's in the control room.

[00:19:09] Speaker 00:
He's the only person that has access to security doors.

[00:19:13] Speaker 00:
without being in the control room and leaving the security doors open, which is another thing that's been alleged in the complaint, this allowed dangerous inmates in the prison, such as Kukendall, but it could have been another inmate, to test the doors.

[00:19:27] Speaker 00:
And in this 15 to 30 minute time, as Judge Callahan noted, that gave the opportunity for this inmate to attack Ms.

[00:19:34] Speaker 00:
Corsland.

[00:19:36] Speaker 00:
I think that counsel strayed away slightly from this court's questions when it came to an affirmative action,

[00:19:42] Speaker 00:
because this is an affirmative action.

[00:19:45] Speaker 00:
Where I think counsel wanted this court to go was really to talk about foreseeability and whether or not this was a particularized kind of harm that this court could consider.

[00:19:55] Speaker 04:
Well, he probably goes to the bathroom every day.

[00:19:57] Speaker 04:
It's not his fault that it's an understaffed prison.

[00:20:01] Speaker 04:
So I'm having a hard time.

[00:20:03] Speaker 04:
And if you went every day and nothing ever happened, how would you know?

[00:20:10] Speaker 04:
that something was going to happen if he just went to the bathroom.

[00:20:14] Speaker 00:
Certainly.

[00:20:14] Speaker 04:
Or that he was deliberately indifferent to the horrible thing that happened to Ms.

[00:20:21] Speaker 04:
Gorsling, obviously.

[00:20:24] Speaker 00:
Judge Callahan, it's true that I think everybody goes to the bathroom every day.

[00:20:27] Speaker 00:
However, in this case, we're talking about Officer Randall, and if we look at the allegations

[00:20:32] Speaker 00:
He didn't do anything to make sure that he was covered when he went to the bathroom.

[00:20:35] Speaker 00:
Sure, the prison's overstaffed, but it doesn't mean that there's no staff there.

[00:20:39] Speaker 00:
It doesn't mean that there was a decision that he had to make about, oh, I'm going to have to have an accident or leave or stay here or leave my post to go to the bathroom.

[00:20:50] Speaker 00:
I think it's very clear that as a legend to complain, there are other things he could have done.

[00:20:54] Speaker 00:
When we're going to the deliberate and different standard, though, Judge Callahan, I think that it's important to also look at some of the allegations in the complaint, and I want to talk about some of those.

[00:21:06] Speaker 04:
Well, I see negligence here easily, but Nevada would allow you to bring a negligence claim in state court, right?

[00:21:13] Speaker 04:
But you've put this into a 1983, so we've got to analyze it from that.

[00:21:19] Speaker 04:
So is negligence enough for

[00:21:23] Speaker 00:
and nineteen eighty three your honor negligence is not enough for section nineteen eighty three claim particularly in the context of a state created danger however fight

[00:21:34] Speaker 00:
Yes, Your Honor.

[00:21:34] Speaker 01:
With respect to that, just that very point you just made, in the cases involving state-created danger, leaving somebody on the side of a road, requiring them at night and so on, it's a direct act toward the victim.

[00:21:49] Speaker 01:
Now, is this similar, or would a negligence conduct

[00:21:56] Speaker 01:
lead to the same result as an affirmative act.

[00:21:58] Speaker 01:
And if negligence isn't covered, as Judge Callahan has pointed out, then how do you distinguish this?

[00:22:05] Speaker 00:
Yes, Your Honor.

[00:22:07] Speaker 00:
So within the complaint, we've alleged at ER 104 at 65 that defendant's actions left Gorsland completely alone in the unit to be without any protection or defense.

[00:22:18] Speaker 00:
and elsewhere in the complainants alleged that he did know that she was there by herself.

[00:22:22] Speaker 00:
I wanted to get into some of those facts about deliberate indifference, which I think ties into your question.

[00:22:27] Speaker 04:
Did you allege that he was required to tell someone he was going to the bathroom?

[00:22:31] Speaker 04:
Did you allege that in the complaint?

[00:22:34] Speaker 00:
I don't believe that that's alleged directly, Your Honor.

[00:22:36] Speaker 04:
Well, I guess in words, did you allege that?

[00:22:40] Speaker 00:
I don't believe that it's alleged exactly like that, but I think that the inference can be made that she was left by herself and that but for his actions, the inmate would have been able to access the unit.

[00:22:49] Speaker 04:
Well, isn't a failure to tell someone something an omission instead of an affirmative act?

[00:22:55] Speaker 00:
Your honor, I think that at the lower court, acts versus omissions were discussed pretty frequently, which you'll see in the record.

[00:23:02] Speaker 00:
I would say that, for example, it's hard to say, and there was a conversation in the lower district court about what is an act, what is an omission.

[00:23:11] Speaker 00:
If I lied to this court today, would that be an omission or would that be an affirmative act?

[00:23:16] Speaker 00:
Here, I think that the most important thing and probably one of the most important facts

[00:23:20] Speaker 00:
is that Gorsland is controlling the Sallyport doors and he left that control room in those Sallyport doors.

[00:23:27] Speaker 00:
Whether he called someone else, whether he didn't call someone else.

[00:23:30] Speaker 04:
Well, if he's controlling them, can someone get in if he's not there?

[00:23:33] Speaker 04:
Well, it seems to me if you're controlling them, it's sort of like in my chambers, you buzz and then you're asked to identify who you are before you get to come in.

[00:23:47] Speaker 04:
Is that what controlling means of those?

[00:23:49] Speaker 00:
Yes, your honor.

[00:23:50] Speaker 00:
And in fact, if we go to the complaint.

[00:23:54] Speaker 04:
So I'm guessing.

[00:23:55] Speaker 04:
But if that's what controlling means, how did this guy get in if he's in the bathroom?

[00:24:01] Speaker 04:
Because you wouldn't be able to get in if the person controlling the door.

[00:24:06] Speaker 04:
isn't there.

[00:24:07] Speaker 04:
Sorry, Your Honor.

[00:24:08] Speaker 00:
If we go to the complaint, which is EOR 103 at paragraph 61, I think there is an allegation there that helps clear this up.

[00:24:16] Speaker 00:
So, Officer Randall, and you'll see other points in the complaint, he controls access and has to announce any ingress or egress into the unit.

[00:24:24] Speaker 00:
Without him being at the control station, inmates like Cuckindale, I'm going to quote, was allowed to open and close the Sally Port doors in Unit 2B

[00:24:35] Speaker 00:
to access the activity room and Gorsland's office on his own without having his movements observed and controlled.

[00:24:42] Speaker 00:
So I think the key distinction between what you're mentioning, Your Honor, in this case is that had Officer Randall been at his post, then Kukedale wouldn't have been able to access those doors in the first place.

[00:24:54] Speaker 02:
So Kukedale was able to take over of where Randall left off and open and close Sellyport doors in order to gain entry.

[00:25:02] Speaker 02:
That's the allegation.

[00:25:03] Speaker 02:
That's the allegation in the complaint, Your Honor.

[00:25:05] Speaker 01:
What about Ms.

[00:25:05] Speaker 01:
Stern's point that Kikedall had previously been admitted, and therefore it can be inferred he would have been admitted at this time, even if Mr. Randall had been there?

[00:25:20] Speaker 04:
Because he came in twice before, and then he obviously saw his opportunity that maybe someone was

[00:25:29] Speaker 00:
Well, he tested the doors thr- I think I understand the question, but if not, please stop me, and I know you will.

[00:25:35] Speaker 00:
He tested the doors thr- Tell me so well.

[00:25:37] Speaker 00:
He tested the doors three times, and I think to answer the question directly, well, he wouldn't have been able to do that had Officer Randall been there.

[00:25:46] Speaker 00:
That's, I think, the key allegation in the complaint.

[00:25:50] Speaker 00:
moving real quick to deliberate indifference because there's some facts there too that I think is really important to tie together this first section of affirmative action or state created danger under deliberate indifference is

[00:26:02] Speaker 00:
First, it's been alleged that Officer Randall knew the prison was dangerous and understaffed, EOR 107 and EOR 97.

[00:26:08] Speaker 00:
I don't think that's a surprise to anyone here that prisons are dangerous.

[00:26:12] Speaker 00:
But I think the understaffing is an important point.

[00:26:15] Speaker 00:
Officer Randall also knew that Ms.

[00:26:17] Speaker 00:
Gorsland was a social worker with no duty belt, weapons, or radios, EOR 89 and EOR 97.

[00:26:24] Speaker 00:
Miss Gorsland has alleged that Officer Randall knew of the concerns about safety raised by social workers such as herself at the prison and that employees like Randall made fun of those concerns.

[00:26:35] Speaker 00:
It says employees in the complaint, a reasonable inference can be made that that includes Randall, EOR 97.

[00:26:41] Speaker 00:
Last, it is alleged that Officer Randall knew that by banning his post, Ms.

[00:26:44] Speaker 00:
Gorselin would be left alone and without any protection.

[00:26:47] Speaker 00:
That's EOR 104.

[00:26:49] Speaker 04:
I think that the- Did he say that Randall had made fun of her or other people in that position?

[00:26:58] Speaker 00:
I'm... It's other people in that position, Your Honor, but the allegations make clear that it was known that social workers, such as Ms.

[00:27:06] Speaker 00:
Gorselin, brought concerns to the attention of other staff in the prison and that those concerns were, you know, not only rejected in some ways, but made fun of.

[00:27:17] Speaker 00:
In fact, one correctional officer left, I think it was a cardboard baton or cardboard duty belt on a social worker's desk.

[00:27:27] Speaker 00:
Again, we're talking about a complaint stage.

[00:27:29] Speaker 00:
We're talking about reasonable inferences.

[00:27:31] Speaker 00:
The complaint itself says employees.

[00:27:34] Speaker 00:
Officer Randall is an employee.

[00:27:36] Speaker 04:
And still though, the district court found that the claims against Chacon failed because of his failure to follow NDOC or N-D-O-C policies and procedures constituted an omission of something he was required to do.

[00:27:51] Speaker 04:
If Randall was required to inform someone he was going to the bathroom under

[00:27:57] Speaker 04:
and DOC policies and procedures, isn't that failure to do so also an admission?

[00:28:02] Speaker 00:
I don't think so, Your Honor, and let me explain why.

[00:28:05] Speaker 00:
I think if we look at this Court's decisions and other cases, and the one that is coming to mind for me most prominently here is

[00:28:17] Speaker 00:
probably Martinez versus City of Clovis.

[00:28:21] Speaker 00:
There's policies and laws that direct officers such as Officer Randall or police officers to do all sorts of things.

[00:28:28] Speaker 00:
But the state created danger tests when we're looking even going back to Wood, isn't necessarily examining or analyzing whether or not they failed to follow a policy or a law, but specifically looking at their own acts that subjected or enhanced the danger to an individual.

[00:28:43] Speaker 00:
So I think the appropriate analysis here, Your Honor, is not did Officer Randall omit to do something in terms of policy, but whether he actively did something that enhanced the danger to Ms.

[00:28:54] Speaker 00:
Gorselin.

[00:28:55] Speaker 00:
I think the answer to that question is pretty easily yes.

[00:28:58] Speaker 01:
Did you allege that he knew she was the only one there?

[00:29:02] Speaker 00:
Your Honor, if you look at EOR 104 at paragraph 65, the allegation is defendant's actions left Gorsland, quote, completely alone in unit 2B without any protection or defense.

[00:29:16] Speaker 01:
But that doesn't allege that he knew she was alone, correct?

[00:29:20] Speaker 00:
There's allegations in the complaint, Your Honor, that I think make clear that she was alone, including that allegation, and that that is a reasonable inference.

[00:29:26] Speaker 01:
Well, okay.

[00:29:27] Speaker 01:
All right, thank you.

[00:29:30] Speaker 02:
What about the argument that counsel is making about clearly established law?

[00:29:34] Speaker 02:
We can't take these laws at a high level of generality.

[00:29:38] Speaker 02:
And so, for example, you have the district court was relying on LW Grubbs, which has some differences, right?

[00:29:47] Speaker 02:
You have prison staff there assigning an inmate to a worker.

[00:29:54] Speaker 02:
What do you think are the best cases to show clearly established law here?

[00:30:02] Speaker 00:
I have written down here on my outline, Judge Sanchez, and I think that you called both of these cases to attention, which is Wood and Grubbs.

[00:30:09] Speaker 00:
And I think this court can look to Polanco when it comes to the combination of cases creating clearly established law.

[00:30:16] Speaker 00:
I'm not sure if we have to do that though, and I'd like to specifically point this court to a line in Grubbs, which I think is dispositive in creating the clearly established law.

[00:30:26] Speaker 00:
And that law, and here's the line.

[00:30:29] Speaker 00:
This court noted that the plaintiff is not seeking to hold defendants liable for the inmates' violent proclivities, but rather, quote, seeking to make defendants answer for their acts that independently created the opportunity for and facilitated the inmates' assault on here.

[00:30:46] Speaker 04:
So I think- Well, isn't it relevant, though, that the officers in Grubbs assigned the inmate to work with a woman employee?

[00:30:53] Speaker 04:
Randall didn't assign Cuckindall.

[00:30:56] Speaker 04:
to be with Gorsling, right?

[00:30:59] Speaker 00:
No.

[00:31:00] Speaker 00:
But I sort of disagree with that analysis, Your Honor, and here's why.

[00:31:04] Speaker 00:
Because I don't think that it matters if there was a supervisor or a correctional officer that had exposed the plaintiff and grubs to harm.

[00:31:12] Speaker 00:
I think the court makes clear here that the real issue is whether or not the defendant's acts independently created the opportunity for

[00:31:21] Speaker 00:
and facilitated an inmate's assault on here.

[00:31:25] Speaker 04:
Well, let's say we could say that Grubbs puts Randall on notice that he can't leave a woman alone with inmates.

[00:31:31] Speaker 04:
Let's say that it puts you on notice of that.

[00:31:35] Speaker 04:
Is there anything in the complaint that says he knows that Gorsling is alone with an inmate when he goes to the bathroom?

[00:31:49] Speaker 00:
Your Honor, I would go back to, again, our allegations at 104 paragraph 64 and EOR 104 paragraph 65.

[00:32:05] Speaker 00:
So I would say that there is enough within the complaint that's been stated or by inference that she was alone.

[00:32:13] Speaker 04:
Well, but that he knows that she's alone with an inmate.

[00:32:16] Speaker 04:
In Greb's, you know that you're putting a person there, but what makes him on notice that Gorsling is alone with an inmate?

[00:32:32] Speaker 04:
Is that alleged anywhere?

[00:32:34] Speaker 04:
Just that he knows that Kukundile is on 2B when he goes to the bathroom?

[00:32:42] Speaker 00:
Your Honor, if I may, a point of clarity, and I see that my time's out.

[00:32:46] Speaker 00:
May I proceed?

[00:32:46] Speaker 04:
You can keep talking.

[00:32:47] Speaker 00:
Okay.

[00:32:49] Speaker 00:
I think that that's contained in those paragraphs that I just mentioned, but we can also look at EOR 107 at paragraph 111, which says, each of the defendants ignored the risk of harm to Aja.

[00:33:00] Speaker 00:
But I think there was a secondary question that you asked here, and that was the specific harm of Kukindel.

[00:33:06] Speaker 00:
And I want to be clear that the argument is not whether or not Kukendale was known specifically to Officer Randall.

[00:33:12] Speaker 00:
I don't think that's important.

[00:33:14] Speaker 00:
I think what's important is whether or not Officer Randall created or enhanced a dangerous situation by leaving the control room, manning the Sally Port doors, which allowed inmates such as Kukendale

[00:33:26] Speaker 00:
to access Ms.

[00:33:27] Speaker 00:
Gorselin.

[00:33:28] Speaker 00:
One more point, if I may.

[00:33:29] Speaker 00:
I also think that this court asked a really good question.

[00:33:32] Speaker 00:
I think this was you, Judge Callahan, if this case would be different if it was a man.

[00:33:36] Speaker 00:
I think that this case would be different if Ms.

[00:33:38] Speaker 00:
Gorselin was a correctional officer.

[00:33:40] Speaker 00:
And I think that's another really important point here.

[00:33:42] Speaker 04:
Wasn't she a correctional officer before?

[00:33:44] Speaker 00:
She was, Your Honor.

[00:33:46] Speaker 00:
In terms of her new position as a social worker, she had no radio, no weapons, no baton.

[00:33:51] Speaker 00:
She wasn't equipped and wasn't expected to.

[00:33:53] Speaker 04:
Correctional officers don't have guns in prison either.

[00:33:56] Speaker 04:
I've been to visit people in prison and you walk around and you think like, oh, this isn't such a good place to be.

[00:34:03] Speaker 00:
I would agree with that, Judge Callahan.

[00:34:06] Speaker 04:
They make you sign a waiver to say we're not responsible for anything that happens to you and we don't negotiate for hostages.

[00:34:12] Speaker 00:
But I think that we need to examine what is the purpose of a social worker compared to the purpose of a correctional officer.

[00:34:18] Speaker 00:
And the purpose of a correctional officer is exactly and specifically to monitor inmates and control inmates.

[00:34:24] Speaker 00:
The purpose of a social worker like Ms.

[00:34:26] Speaker 00:
Gorselin is not to monitor and control inmates, and she doesn't even have the tools to do that.

[00:34:31] Speaker 00:
That's not her job.

[00:34:32] Speaker 00:
She's an administrative employee, which is also alleged in the complaint.

[00:34:36] Speaker 01:
Mr. Rundle, if we concluded that I believe to amend might be appropriate, could you add material allegations to the complaint?

[00:34:47] Speaker 00:
Certainly, I think that that's absolutely possible.

[00:34:50] Speaker 00:
And I would note, too, that I believe that this— Anything's possible.

[00:34:54] Speaker 01:
I think the question I have is, do you think, in good faith and compliance with your obligations under Rule 11 and others, you could make specific allegations on touching on the matters we've been discussing?

[00:35:06] Speaker 00:
My apologies, Your Honor.

[00:35:07] Speaker 00:
Yes, I think that we can do that.

[00:35:09] Speaker 00:
And I wanted to note briefly as well that I believe that the appeal was filed 13 days after Judge Traum's ruling.

[00:35:16] Speaker 00:
And within Judge Traum's ruling, Judge Traum also leaves open the possibility that other defendants, including the deputy warden, that the complaint could be amended to include them.

[00:35:26] Speaker 04:
Have you done that?

[00:35:28] Speaker 00:
We have not amended the complaint yet, Your Honor.

[00:35:31] Speaker 04:
OK, thank you.

[00:35:32] Speaker 04:
Thank you, Your Honor.

[00:35:36] Speaker 04:
The prison, two minutes for rebuttal.

[00:35:43] Speaker 03:
Very briefly, I would like to address.

[00:35:44] Speaker 03:
So doesn't Grubbs put Randall on notice that he can't leave a woman with inmates?

[00:35:49] Speaker 03:
No.

[00:35:51] Speaker 03:
It puts supervisors on notice that they cannot place one of their employees that they have control over with an inmate that they know is dangerous.

[00:36:02] Speaker 03:
As this court can see, many of those elements in grubs that do give some notice to some people don't give notice to Randall because he's not a supervisor.

[00:36:12] Speaker 03:
He doesn't have any control, not only of where Gorsline is assigned, he's not in charge of her level of protection either.

[00:36:22] Speaker 03:
He doesn't have any control or responsibility for any of those things.

[00:36:26] Speaker 03:
I did want to address the amending the complaint issue.

[00:36:30] Speaker 03:
Because I think that one thing this court should understand is that this complaint is already overly broad as we look at it when we look at just Randall.

[00:36:39] Speaker 03:
It includes every conceivable fact against every conceivable person in the prison who touched this issue at all.

[00:36:46] Speaker 03:
And so I think it's unlikely that they'll be able to amend.

[00:36:50] Speaker 02:
I would say- I would think, wouldn't it be the opposite, that because it cast a wide net before and many of the defendants have since been dismissed, that amendment could allow for some more focused allegations as to what was known, you know, about who was working in the union at the time when- Well, I respectfully disagree and I'll cite this court to the paragraph that I referenced before.

[00:37:13] Speaker 03:
which is paragraph 106 of the complaint, where the fact that inmate Cuckindale was not only dangerous but was also guilty of sexually inappropriate conduct was well known to defendant Doe.

[00:37:25] Speaker 03:
Now, if they'd wanted to allege that against defendant Randall, they certainly could have.

[00:37:29] Speaker 03:
And I think that applies to the rest of the complaint as well.

[00:37:33] Speaker 03:
And I do think that that issue is important.

[00:37:35] Speaker 03:
The reason it's important is because it goes to whether Randall was deliberately indifferent.

[00:37:42] Speaker 03:
Um, my colleague on the other side said he didn't think it was important.

[00:37:45] Speaker 03:
Randall's knowledge of the danger.

[00:37:47] Speaker 02:
Couldn't, couldn't want to establish deliberate indifference, not necessarily by specific knowledge of kook and doll, but of the inmate population and housing to be, and, and the sort of risks that would be posed if people didn't gain entry.

[00:38:00] Speaker 02:
If I can finish my question, and the risk that would be posed if inmates gained entry through the Sally port doors, knowing who, who resided in that housing unit.

[00:38:10] Speaker 03:
Yes, if there were an allegation that this were a maximum security facility, certainly, or that there were maximum security prisoners housed in the facility that had these dangerous proclivities, absolutely.

[00:38:21] Speaker 03:
If this were at Ely State Prison, we'd be having a very different conversation.

[00:38:25] Speaker 02:
Medium security prisoners are not capable of posing a danger to staff, in your view?

[00:38:30] Speaker 03:
Randall, no, no, absolutely not.

[00:38:32] Speaker 03:
Of course, because the facts of this case would belie that.

[00:38:34] Speaker 02:
I've been to many prisons myself, and so I know the different levels.

[00:38:37] Speaker 03:
What we're looking at is Randall's subjective knowledge, Randall's subjective knowledge as it was alleged in the complaint.

[00:38:43] Speaker 04:
So let me make sure.

[00:38:45] Speaker 04:
There is no allegation of that knowledge.

[00:38:46] Speaker 04:
You're saying he's entitled to qualified immunity because Grubbs didn't put him on notice.

[00:38:50] Speaker 04:
Correct.

[00:38:52] Speaker 04:
Is there a secondary position that you have?

[00:38:55] Speaker 03:
Yes, I also believe there was no constitutional violation, but this court need not reach that issue.

[00:39:01] Speaker 03:
I think the easier find is that Grubbs simply didn't put him on notice.

[00:39:05] Speaker 04:
And your basis that there's no constitutional violation is there's no evidence of deliberate indifference?

[00:39:10] Speaker 03:
I think that's the strongest argument.

[00:39:12] Speaker 03:
There are other arguments in our briefs, as this court knows, but those are the two strongest.

[00:39:16] Speaker 03:
I just want to make sure I understood it.

[00:39:17] Speaker 03:
Yep, thank you.

[00:39:17] Speaker 03:
Thank you.

[00:39:18] Speaker 03:
This matter will stand submitted.