[00:00:00] Speaker 03:
Good afternoon, Your Honors.

[00:00:02] Speaker 03:
I'd like to thank the members of the panel for permitting me to present my arguments to the court.

[00:00:07] Speaker 03:
The district court erred when denying Dr. Reines' motion for summary judgment, because he is entitled to qualified immunity.

[00:00:13] Speaker 01:
Excuse me.

[00:00:14] Speaker 01:
You're tall, so the podium's a little bit low, and the microphones are far from you.

[00:00:17] Speaker 01:
But there's a button underneath there.

[00:00:19] Speaker 01:
Oh, is there?

[00:00:19] Speaker 01:
Yeah, you should be able to raise it up.

[00:00:20] Speaker 01:
We'll stop your time.

[00:00:25] Speaker 03:
Did you say, you'll do it, or there's a button?

[00:00:32] Speaker 03:
Gotcha.

[00:00:33] Speaker 01:
And we've stopped the clock so you didn't lose time for this mechanical issue.

[00:00:36] Speaker 03:
Thank you.

[00:00:37] Speaker 03:
I appreciate it.

[00:00:38] Speaker 03:
And I appreciate your honor telling me that it could be raised.

[00:00:41] Speaker 03:
I was going, geez, that's an awful old podium.

[00:00:45] Speaker 03:
The district court erred when denying Dr. Reynoso's motion for summary judgment because he is entitled to qualified immunity, as he did not violate a clearly established constitutional right.

[00:00:54] Speaker 03:
Carly admits that to prove an Eighth Amendment violation, she must establish that Dr. Aranis personally participated in Carly's hepatitis C treatment and knowingly disregarded an excessive risk to Carly's health and safety, which is not possible in this case because Carly was fully cured.

[00:01:10] Speaker 03:
Dr. Aranis never examined or treated Carly, never denied her treatment, and simply was not personally involved in Carly's treatment.

[00:01:18] Speaker 02:
Council, there is one section in the record in which Dr. Aranas responds to one of her requests and cites back to her her APRI, I think it was 1.3 at the time.

[00:01:32] Speaker 02:
Now that fact was not listed in her request.

[00:01:37] Speaker 02:
So where did Dr. Aranas get that figure?

[00:01:39] Speaker 03:
My assumption is that she got it from reviewing her medical records.

[00:01:47] Speaker 02:
So Dr. Anas did review her medical records?

[00:01:49] Speaker 03:
Evidently, he did.

[00:01:50] Speaker 03:
But it was a limited review, because that's the only APR number that he cites.

[00:01:57] Speaker 03:
And it was below the level that was in the provisions at the time.

[00:02:02] Speaker 03:
And instead, like I was saying, Carly was regularly monitored and evaluated by her treating medical providers.

[00:02:08] Speaker 03:
upon which judgment Dr. Aranis properly lied.

[00:02:11] Speaker 03:
Carly makes three arguments to support her claim.

[00:02:13] Speaker 03:
First, Carly wrongly argues that Dr. Aranis adopted medical directives that prevented MDOC providers from exercising their independent medical judgment.

[00:02:22] Speaker 03:
Second, Carly wrongly argues that Dr. Aranis personally participated in her treatment by denying her grievance, which is what Your Honor was referring to.

[00:02:29] Speaker 03:
Third, Carly wrongly argues that Dr. Aranis denied her treatment

[00:02:33] Speaker 03:
as a member of the Hepatitis C committee.

[00:02:35] Speaker 03:
None of these arguments have any merit, which I will address in turn.

[00:02:39] Speaker 03:
First, despite exclusion criteria in MD 219, NDOC doctors had full discretion to refer Carly for medical treatment.

[00:02:47] Speaker 03:
Under all six revisions of MD 219 adopted by Dr. Reines, each medical provider was able to use his or own independent medical judgment

[00:02:55] Speaker 03:
to refer inmate's patients to hepatitis C committee for additional treatment if any believed.

[00:03:01] Speaker 02:
Council, don't these arguments go to the question as to whether there's an 8th Amendment violation?

[00:03:06] Speaker 03:
That's correct, Your Honor, because that's the first step.

[00:03:09] Speaker 02:
And the district court found that there were disputed

[00:03:13] Speaker 02:
matters of material fact, I thought that your argument had to do with qualified immunity, which would have to do with, if even assuming that there is an Eighth Amendment violation, that the right was not clearly established.

[00:03:24] Speaker 03:
No, Your Honor, our argument is twofold.

[00:03:26] Speaker 03:
First is that even accepting, okay?

[00:03:29] Speaker 03:
Because also, I want to clarify this about this dispute of material fact.

[00:03:33] Speaker 03:
You know, that's kind of a misnomer, really, that the Court uses sometimes, because what the fact, how the Court's supposed to do it is, is you're supposed to take the facts and construe them all in favor of

[00:03:44] Speaker 03:
the opposing party, and then, as a matter of law, you have a motion for summary judgment.

[00:03:49] Speaker 03:
So we're saying if you take all the facts that the court says are in dispute and construe them and say, well, we're going to assume that those ones are true instead of being in dispute, we're still entitled because there's no violation of the law.

[00:04:03] Speaker 03:
And again, like I said.

[00:04:03] Speaker 04:
The argument being made is that she had hep C. That doesn't appear to be disputed.

[00:04:10] Speaker 03:
No, that's not dispute, Your Honor.

[00:04:11] Speaker 04:
And she didn't receive the treatment that she sought and now argues was the appropriate treatment at the time.

[00:04:19] Speaker 04:
If that were true, would that be a constitutional violation?

[00:04:24] Speaker 03:
Not by Dr. Reines, Your Honor, because he was in his treating position.

[00:04:27] Speaker 03:
That's the thing.

[00:04:27] Speaker 03:
You have to have personal participation by the doctor.

[00:04:30] Speaker 04:
Is he the person responsible for setting the standard for when you were going to qualify for the particular treatment that she sought?

[00:04:37] Speaker 03:
He set the medical records, and that's right, Your Honor, and that's what I was referring to right now.

[00:04:40] Speaker 04:
Hold on a second.

[00:04:42] Speaker 04:
So it seems to me that in at least two ways he participated and the one that you've acknowledged to Judge Bybee in terms of one particular evaluation made by him that must have included some review of her medical records and also by setting the standard that was applied later.

[00:05:00] Speaker 04:
So isn't that the basis for arguing that there was a constitutional violation?

[00:05:05] Speaker 03:
No, Your Honor, because first of all, because the medical directors that we're referring to provide full discretion to the medical doctors to determine whether she should be referred to the hepatitis C committee.

[00:05:15] Speaker 04:
And I'll read that from... Well, yeah, but if you're a doctor working in the system and you're given this standard, aren't you expected to follow it?

[00:05:25] Speaker 04:
Don't you have to do something to override the announced standard?

[00:05:28] Speaker 03:
You're not overriding it, Your Honor.

[00:05:30] Speaker 03:
That's the thing.

[00:05:31] Speaker 03:
We're not arguing.

[00:05:32] Speaker 04:
What you're arguing strikes me as kind of a dry hole.

[00:05:36] Speaker 04:
I'd be curious if you were going to get to qualified immunity, which is what I thought this case was about.

[00:05:41] Speaker 03:
OK, Your Honor.

[00:05:42] Speaker 03:
First of all, let's talk about what the medical director said.

[00:05:47] Speaker 03:
It says, inmate patients who have been tested positive for hepatitis C treatment have displayed constitutional signs and symptoms and may be a candidate for treatment.

[00:05:55] Speaker 03:
There is no other requirement other than that in order to get there.

[00:05:58] Speaker 03:
And that's constitutional meaning bodily signs.

[00:06:00] Speaker 03:
So it's a very standard.

[00:06:01] Speaker 03:
It gave literal discretion according to the doctors.

[00:06:06] Speaker 03:
Although there was exclusionary criteria, none of those exclusionary, it doesn't say in the directive that any of these exclusionary criteria prevent a doctor from recommending or from treatment.

[00:06:17] Speaker 04:
But if it's there and it's exclusionary, doesn't a doctor who decides, well, I disagree,

[00:06:25] Speaker 04:
run the risk of irritating his superiors because he's decided that the directive is wrong?

[00:06:33] Speaker 03:
No, because it says inmates who may, this is all that's required.

[00:06:36] Speaker 03:
Is it positive?

[00:06:37] Speaker 03:
I mean, if you want to read it some other way, and I guess that's how we kind of get to qualified immunity.

[00:06:41] Speaker 04:
I kind of think that's why it's human nature to think if the boss says, this is exclusionary,

[00:06:48] Speaker 04:
I decide differently.

[00:06:50] Speaker 04:
Yeah, OK.

[00:06:51] Speaker 04:
You can keep arguing that, but I'm hoping someday you get to qualified immunity.

[00:06:55] Speaker 03:
I'm going to get to qualified immunity, OK, for you, Your Honor.

[00:06:57] Speaker 03:
Thank you.

[00:06:59] Speaker 03:
When we talk about qualified immunity with respect to the medical directives, then you'd have to have some case on point that says, hey, there's an ambiguity.

[00:07:06] Speaker 03:
I don't think there's an ambiguity, but let's just say that there is an ambiguity.

[00:07:10] Speaker 03:
Well, you'd have to have a case that says, well, if there's an ambiguity in the policy, the doctors could read it two ways.

[00:07:15] Speaker 03:
It says maybe that they're required to give treatment,

[00:07:17] Speaker 03:
And then, since it could be read that says that they have full discretion not to give treatment, well, that's a constitutional violation of the Eighth Amendment.

[00:07:25] Speaker 03:
Well, there is no case that says that.

[00:07:27] Speaker 03:
And therefore, we're entitled to qualified immunity under that provision of the case.

[00:07:32] Speaker 03:
But I just want to review what it says in O'Brien.

[00:07:35] Speaker 03:
The O'Brien case said, held a medical policy that provides doctors with discretion to prescribe treatment when needed, despite the policy urging, which is what our policy does,

[00:07:45] Speaker 03:
Limitations to certain treatment was not an unconstitutional policy because the policy did not deny medical, deny inmates medical treatment regardless of need.

[00:07:54] Speaker 03:
And that's what our policy does.

[00:07:56] Speaker 03:
Our policy falls fully under O'Brien and therefore there was no violation.

[00:08:00] Speaker 03:
But even if there was a violation, we're protected by qualified immunity because we're relying on O'Brien.

[00:08:09] Speaker 03:
Second, when revising,

[00:08:12] Speaker 03:
Okay, I'm going to go on to the next point.

[00:08:16] Speaker 03:
Second, when Carly has not met a high burden of showing that Dr. Raines actually knew that he was denying a second-level grievance would pose any risk to Carly necessary to establish an 8th Amendment violation, because Dr. Raines never examined Carly

[00:08:32] Speaker 03:
never treated her, and no clinical provider had referred her for DA treatment.

[00:08:37] Speaker 03:
And that's critical.

[00:08:38] Speaker 03:
I mean, Dr. Reynes, he's acting as a grievance.

[00:08:40] Speaker 03:
He's not acting as a doctor.

[00:08:42] Speaker 03:
He's acting as a grievance responder.

[00:08:44] Speaker 03:
This is all for Peralta.

[00:08:47] Speaker 01:
Well, there's one distinction from Peralta in that Peralta involved dental care.

[00:08:52] Speaker 01:
And so the medical provider at the first level was a dentist and the reviewer was not a dentist, was a doctor of some other specialty.

[00:09:02] Speaker 01:
And that's not the case here.

[00:09:03] Speaker 01:
Does that make a difference?

[00:09:05] Speaker 03:
No, because it also involved the chief dental officer, and who was also not required to second-guess staff dentists.

[00:09:12] Speaker 03:
This court held, without evidence that the chief dental officer participated in the inmate's treatment, then the inmate hasn't shown that the chief dental officer has actual knowledge required for delivery and difference.

[00:09:23] Speaker 03:
And I referred this case to the Patterson Stone case.

[00:09:26] Speaker 03:
I know it's an unpublished decision.

[00:09:28] Speaker 03:
But there, that's the same reading that the court in Paterson gave, that the chief dental officer in Paterson also, he actually reviewed the file.

[00:09:37] Speaker 03:
And they said, hey, he still wasn't because, guess what?

[00:09:41] Speaker 03:
He wasn't the treating medical provider.

[00:09:45] Speaker 03:
Under Estelle, and then also Carl admits her own expert, Dr. Gish, affirmed that the decision to take the newest medication should be in the hands of clinicians and patients based on the advice of their doctor.

[00:09:59] Speaker 03:
Under STEL, the questioning of providing VA treatment in 2007 is a classic example of medical judgment.

[00:10:05] Speaker 03:
Medical judgment is left to the independent decision of the treating medical provider who is in the best decision to know whether or not there should be prioritizing for treatment.

[00:10:13] Speaker 03:
And even if you disagree with my interpretation for ALSA, again, we're at coal-fat immunity.

[00:10:18] Speaker 03:
You have to have a case that says, this is the opposite.

[00:10:20] Speaker 03:
You have to have a case that says, hey, guess what?

[00:10:22] Speaker 03:
It was a grievant responder.

[00:10:24] Speaker 03:
Even if you have an examiner and you've only limitedly reviewed the medical records,

[00:10:29] Speaker 03:
You've had to show that they have.

[00:10:32] Speaker 01:
Well, your friend on the other side argues, and I'm not trying to put words in her mouth, but I believe the argument in the brief was that there's plenty of case law that establishes that it's a violation of the Eighth Amendment to delay or deny medical care that's necessary for a serious medical condition, and it seems

[00:10:53] Speaker 01:
that it is not disputed that hepatitis C is a serious medical condition, it's life-threatening, and that her medical treatment was delayed or denied here.

[00:11:03] Speaker 03:
Well, no, what was it?

[00:11:04] Speaker 03:
What it was, it was prioritized.

[00:11:06] Speaker 03:
That's what was going on here.

[00:11:07] Speaker 01:
But prioritize is another way of saying delay.

[00:11:09] Speaker 03:
No, it's not, Your Honor.

[00:11:10] Speaker 03:
I respectfully disagree.

[00:11:12] Speaker 03:
That's not another word for saying delay.

[00:11:13] Speaker 01:
But prioritize means somebody else gets treatment first, and so you are delayed, and you maybe get treatment later.

[00:11:18] Speaker 03:
Right.

[00:11:18] Speaker 03:
But the thing is that, in other words, there has to be a sadistic motive for the reason why you're delaying treatment.

[00:11:25] Speaker 03:
In order to recover under those scenarios, there has to become some kind of sadistic motive to do that.

[00:11:30] Speaker 03:
And that's what we don't have here.

[00:11:31] Speaker 03:
What we have is we have a system where the class of treating, have a kind of see this new treatment,

[00:11:37] Speaker 03:
is going to cost tens of thousands of dollars.

[00:11:40] Speaker 03:
And it would cost more than our entire budget to treat all the inmates in order to treat them.

[00:11:46] Speaker 03:
And so we had to prioritize care.

[00:11:48] Speaker 03:
And what we did is we entered in a consent agreement, and we prioritized care properly.

[00:11:53] Speaker 03:
And therefore, every inmate eventually got treated and was cured of hepatitis C. And I think that's an astounding thing for this court to recognize.

[00:12:01] Speaker 03:
Finally, I want to talk about the last point, which is,

[00:12:07] Speaker 03:
They also talked about this one other point about being on the hepatitis C committee.

[00:12:20] Speaker 03:
Well, the hepatitis C rules say that you're only involved if a patient's referred to you.

[00:12:26] Speaker 03:
Carly was never referred to the hepatitis C committee, and so the hepatitis C committee never had an opportunity to rule on the things.

[00:12:32] Speaker 03:
And also, I would like to emphasize that when you're reviewing the facts, you need to review the facts at the time Dr. Reyes was employed by NDLC.

[00:12:39] Speaker 03:
You shouldn't be reviewing facts after he left, because he didn't have any control over anything that happened then after he left.

[00:12:45] Speaker 03:
But as a matter of fact of the matter is, his colleague was fully treated

[00:12:50] Speaker 03:
and fully cured of hepatitis C. And under the qualified immunity standard, there is no case that says that a medical directive that provides discretion allows you, or even arguably provides discretion, would provide you with hepatitis C. There's no case that says that a grievance responder that's relying on the medical professionals to determine whether treatment should be given is vulnerable.

[00:13:16] Speaker 01:
There's no case about it.

[00:13:17] Speaker 01:
Did you want to reserve some time?

[00:13:18] Speaker 03:
Yes, Your Honor.

[00:13:19] Speaker 03:
And that's what I was just going to do.

[00:13:20] Speaker 03:
I was just finishing up right there.

[00:13:22] Speaker 03:
Thank you, Your Honor.

[00:13:32] Speaker 00:
Good morning.

[00:13:33] Speaker 00:
May it please the court.

[00:13:34] Speaker 00:
My name is Lisa Rasmussen.

[00:13:36] Speaker 00:
I'm here on behalf of Elizabeth Carley.

[00:13:39] Speaker 00:
I want to first point out what I think is obvious.

[00:13:44] Speaker 00:
And that is that from 2013,

[00:13:47] Speaker 00:
to 2021, Ms.

[00:13:50] Speaker 00:
Carly had the APRI scores all over .7.

[00:13:54] Speaker 00:
Some of them went up as high as 1.9 something, 1.93 was in 2016.

[00:14:04] Speaker 00:
The declaration from our expert indicates that she has had significant signs of fibrosis and that there were issues that

[00:14:17] Speaker 00:
in particular placed her at risk.

[00:14:19] Speaker 00:
Those, and that is all from NDOC's medical records.

[00:14:25] Speaker 00:
That is his analysis of their own records.

[00:14:28] Speaker 00:
Those records, in other words, were available to them.

[00:14:31] Speaker 00:
What then occurred was she kept doing the grievances and she was denied.

[00:14:37] Speaker 00:
And in talking about the personal participation of Aranis, the court is right.

[00:14:46] Speaker 00:
He did personally participate by preparing the grievance response.

[00:14:52] Speaker 00:
And he also sat on the committee.

[00:14:55] Speaker 00:
Counsel, I believe, just said that she was never the subject of the committee.

[00:15:00] Speaker 00:
But I believe that's belied by the record.

[00:15:03] Speaker 02:
I believe that everyone who was being- But do you have any record that Dr. Arana has ever personally spoke with her, ever examined her?

[00:15:11] Speaker 00:
No.

[00:15:11] Speaker 00:
No.

[00:15:11] Speaker 00:
I don't think he met in a room and talked with her directly.

[00:15:13] Speaker 00:
I think he responded to her grievance request

[00:15:15] Speaker 00:
But what the record shows is that there was the committee that reviewed everyone who was participating in the program's records, and they made decisions based on that, which makes sense if you understand what I think counsel is trying to say, which is that they had to prioritize who got treatment and who didn't.

[00:15:35] Speaker 00:
So they had this committee.

[00:15:37] Speaker 00:
He's on the committee because he's the medical director.

[00:15:40] Speaker 00:
So he had to have reviewed her records.

[00:15:42] Speaker 00:
In fact, he had to have reviewed her records

[00:15:44] Speaker 00:
to respond to that grievance.

[00:15:48] Speaker 02:
All of these questions are interesting questions, but all of them go to the question of whether or not there was an Eighth Amendment violation.

[00:15:55] Speaker 02:
And Judge Dew said that she thought that there were material issues of fact, and therefore it survived summary judgment.

[00:16:04] Speaker 02:
But as I read Judge Dew's request, she denies qualified immunity, but she never really addresses it.

[00:16:11] Speaker 02:
She doesn't address the clearly established wrongs.

[00:16:14] Speaker 00:
I understand what you're saying, because I was rereading the order this morning.

[00:16:17] Speaker 00:
But I think what she does say is, for all the reasons set forth herein, because she goes through the personal participation, why Aaronis is different, and why she dismisses several of the other standards.

[00:16:30] Speaker 00:
Right.

[00:16:30] Speaker 02:
But if you have a qualified immunity argument, you still have to find that the standards are clearly established and that Dr. Aaronis is violating clearly established standards.

[00:16:39] Speaker 02:
Now, it's not just medical standards.

[00:16:41] Speaker 02:
These are constitutional standards.

[00:16:43] Speaker 00:
Yes.

[00:16:44] Speaker 02:
So what do we do when Judge Dew doesn't address any cases and we have cases from the Fourth, D.C., and Eleventh Circuits, that would be Fowler, Bernier, and Hoffer, finding that doctors in these same circumstances, dealing with these same medicines, were entitled to qualified immunity, then how can we say that Dr. Aranas violated clearly established constitutional standards?

[00:17:10] Speaker 00:
Well, I mean, I think we go back to the basic indifference and the delay in treatment.

[00:17:17] Speaker 00:
That's a clearly established constitutional violation.

[00:17:20] Speaker 02:
Nevada is largely copying off the paper of the Federal Bureau of Prisons.

[00:17:24] Speaker 02:
There's clearly been a change in medical standards here and medical treatment.

[00:17:28] Speaker 02:
At the early stages of it, it's extraordinarily expensive and perhaps beyond the ability of many prison systems to be able to accommodate.

[00:17:38] Speaker 02:
Again, these questions have been addressed by three circuits.

[00:17:41] Speaker 02:
And if Dr. Aranis had read those opinions, wouldn't he think that the medical directives in Nevada were constitutional?

[00:17:51] Speaker 00:
Judge Bybee, with all due respect, there's no evidence in the record that treatment was delayed or denied for Ms.

[00:17:57] Speaker 00:
Carley because of cost.

[00:17:59] Speaker 02:
The record is completely... But they were following a general policy, and again, the policy that Nevada followed was largely copied off the paper of the Federal Bureau of Prisons.

[00:18:09] Speaker 02:
Nevada's policy is not unusual.

[00:18:12] Speaker 02:
It was fairly standard.

[00:18:14] Speaker 02:
And now we have three circuits finding that you're entitled to qualified immunity

[00:18:19] Speaker 02:
treating hep C with these drugs because it was not clearly established.

[00:18:26] Speaker 00:
I think that that's contrary to Farmer v Brennan.

[00:18:30] Speaker 02:
You're arguing then that the 4th DC and 11th circuits are all wrong?

[00:18:35] Speaker 00:
Well, Your Honor, we're here in the 9th circuit.

[00:18:37] Speaker 00:
I know you know that.

[00:18:39] Speaker 00:
And I disagree with that.

[00:18:41] Speaker 00:
I think it is clearly established.

[00:18:43] Speaker 00:
By what?

[00:18:44] Speaker 04:
Point me to a case that you think makes it clearly established.

[00:18:48] Speaker 00:
I think the case, the jurisprudence in the U.S.

[00:18:51] Speaker 04:
Supreme Court that sets forth at a very high level, and the Supreme Court has admonished courts generally, and I'm sorry to say this court several times, you can't apply this at a high level.

[00:19:06] Speaker 04:
You have to point to something that resembles the particulars of this case.

[00:19:11] Speaker 04:
I don't see anything out there that resembles the particulars of this case.

[00:19:15] Speaker 04:
I'll look at the cases

[00:19:17] Speaker 04:
Side in your brief, and we're talking about a very high level of abstraction in terms of what constitutes an Eighth Amendment violation in terms of medical treatment.

[00:19:26] Speaker 04:
Can you give me anything that's remotely similar to the facts of this case?

[00:19:32] Speaker 00:
I don't believe that I can.

[00:19:34] Speaker 04:
Well, if you can't, isn't that a problem?

[00:19:35] Speaker 04:
Because the Supreme Court has said you have to get to the particulars.

[00:19:44] Speaker 04:
Let's see here.

[00:19:49] Speaker 04:
Okay.

[00:19:50] Speaker 04:
Indeed, your colleague argued exactly this.

[00:19:54] Speaker 04:
To be clearly established, a right must be sufficiently clear that every reasonable official will have understood that what he does violates that right.

[00:20:02] Speaker 04:
The right allegedly violated must be established not as a broad general proposition, but in a particularized sense so the contours of the rights are clear to a reasonable official.

[00:20:12] Speaker 04:
What Judge Bybee related is other courts have looked at it and decided, nope, nothing clearly established in this

[00:20:18] Speaker 04:
similar context.

[00:20:19] Speaker 04:
So I'm asking you, what can you point to that tells us why the Ninth Circuit should take a different view?

[00:20:25] Speaker 04:
And it seems to me all you're pointing to is those high level of abstraction statements, which the Supreme Court has already told us isn't good enough.

[00:20:34] Speaker 04:
So what are we supposed to do?

[00:20:37] Speaker 00:
So I think we start with what the medical standard is, which Aaronis has to know, right?

[00:20:44] Speaker 00:
He has to know what the standard of care is

[00:20:47] Speaker 00:
for hep C treatment.

[00:20:49] Speaker 04:
And he looks around and he sees what the Bureau of Prisons is doing.

[00:20:52] Speaker 04:
And why should he decide that that's not the right standard?

[00:20:55] Speaker 00:
And why should we decide that what the BOP is doing is the standard?

[00:20:59] Speaker 04:
Because clearly established is the standard.

[00:21:02] Speaker 04:
And you're telling me it could be clearly established even though the BOP and most other states, as best we can tell, are doing something different.

[00:21:11] Speaker 04:
You're telling me it's clearly established all that's wrong.

[00:21:14] Speaker 04:
I'm saying based on what?

[00:21:16] Speaker 04:
And all you're pointing to are these very high level of abstraction Supreme Court cases, which really don't satisfy that need.

[00:21:24] Speaker 00:
If I may, I want to address one thing, and that's the motion for judicial notice and the BOP documents that are included in the further... But we've granted that, so... And I'm not here to argue that you granted it.

[00:21:38] Speaker 00:
I'm here to point out that the documents weren't part of the underlying litigation.

[00:21:46] Speaker 00:
They were never referenced in the declaration submitted by the state.

[00:21:50] Speaker 00:
And they weren't reviewed by our expert, Dr. Gish, as a result of the state never pointing them out.

[00:21:57] Speaker 04:
Do you deny the authenticity of the documents?

[00:22:00] Speaker 00:
I do not deny them.

[00:22:00] Speaker 04:
And in fact, it's been said in the brief several times, and I didn't see any denial in your brief, that they were following federal BOP

[00:22:08] Speaker 04:
guidelines that doesn't seem to be disputed.

[00:22:11] Speaker 00:
But also, I guess what I'm uncomfortable with.

[00:22:15] Speaker 04:
What I have to understand is how you can tell us it is clearly established that following the federal BOP standards was a constitutional violation.

[00:22:26] Speaker 00:
There's no evidence that the BOP standards are constitutional.

[00:22:29] Speaker 04:
No, that's the point.

[00:22:32] Speaker 04:
You have to establish that it was clearly established

[00:22:36] Speaker 04:
that that's wrong.

[00:22:37] Speaker 04:
Following that guide is wrong.

[00:22:41] Speaker 04:
And I don't hear anything that begins to suggest that.

[00:22:45] Speaker 04:
And if that's the case, why aren't they eligible for qualified immunity?

[00:22:53] Speaker 00:
They're not eligible for qualified immunity because the treatment rendered to Elizabeth Carley in this case was below the standard of care.

[00:23:02] Speaker 02:
That may be medical malpractice, but you're here on an Eighth Amendment violation.

[00:23:06] Speaker 02:
You're arguing that it's cruel and unusual punishment.

[00:23:10] Speaker 02:
And again, in order to maintain that against a claim of qualified immunity, you're going to have to show that Dr. Aranis would have known that he was violating the Eighth Amendment, not medical malpractice standards, not best practices, but that he was violating the Eighth Amendment in the moment that he did it.

[00:23:31] Speaker 02:
That's a very, very high standard.

[00:23:33] Speaker 00:
By delaying or denying the appropriate treatment to Ms.

[00:23:36] Speaker 00:
Carly.

[00:23:37] Speaker 02:
But now you're just turning a medical malpractice claim into an Eighth Amendment claim.

[00:23:44] Speaker 02:
And that's never been the standard for the Eighth Amendment.

[00:23:48] Speaker 00:
You know, the state in its argument said that now everyone has been treated and it's all well and good.

[00:23:56] Speaker 00:
There was a consent decree in, and I'm going to cite it for the record,

[00:24:01] Speaker 00:
on October 29, 2020, in the District of Nevada with NDOC.

[00:24:06] Speaker 00:
It's case 319CV577, Judge Due, MMD.

[00:24:13] Speaker 00:
That consent decree is what required the Department of Corrections to finally treat people in an appropriate manner.

[00:24:20] Speaker 02:
And it was entered two years after Dr. Aranas retired.

[00:24:23] Speaker 00:
And it was entered three years after

[00:24:25] Speaker 00:
Ms.

[00:24:25] Speaker 00:
Carly filed her lawsuit, and her lawsuit was part of the genesis of that consent decree.

[00:24:32] Speaker 02:
I'm very happy that the Nevada Department of Corrections decided to come around and treat our Hep C

[00:24:38] Speaker 02:
inmates with the appropriate treatment.

[00:24:42] Speaker 02:
But you're here in a tort suit against a doctor who is dealing with a new world out there, is following the federal guidelines and adopting them as state guidelines, and you're asking us to find that this is cruel and unusual punishment.

[00:24:58] Speaker 02:
And the standard under qualified immunity is to show that Dr. Aranis would have known at the time that he did it that it was cruel and unusual punishment.

[00:25:09] Speaker 00:
Well, I disagree that it's a new world.

[00:25:12] Speaker 00:
I mean, Hep C has been around for a long time.

[00:25:14] Speaker 02:
Sure, but this treatment doesn't come into what, 2013 maybe, 2015?

[00:25:18] Speaker 02:
That's Dr. Gish telling us how the treatment has changed.

[00:25:22] Speaker 02:
And it's a substantial treatment, and it is to the great benefit of all the Hep C sufferers.

[00:25:29] Speaker 02:
It's terrific treatment.

[00:25:31] Speaker 02:
It's a big C change.

[00:25:33] Speaker 00:
Right.

[00:25:34] Speaker 00:
I agree.

[00:25:34] Speaker 00:
I agree on that, that the treatment is new.

[00:25:36] Speaker 00:
But I don't agree that there's some doctrine that says that what BOP decides is the law and is constitutional and is the guide.

[00:25:45] Speaker 02:
No, but you do have to tell us something that will tell us that this was clearly established and that doctor... I'll take a case that says failure to follow any standard medical guidelines constitutes an Eighth Amendment violation.

[00:26:02] Speaker 02:
I've never seen such a case.

[00:26:04] Speaker 02:
I'm not aware because the court has told us medical malpractice is not the same as an Eighth Amendment violation.

[00:26:10] Speaker 02:
And we now have three circuits that have addressed it.

[00:26:12] Speaker 02:
By the way, your best argument here would be Abu Jamal, which is the Third Circuit.

[00:26:16] Speaker 02:
It's an unpublished opinion.

[00:26:18] Speaker 02:
But it does give you some refuge.

[00:26:20] Speaker 02:
But the Third Circuit is up against three other circuits that have examined this in some detail and said, this is qualified immunity.

[00:26:28] Speaker 00:
And it's an unpublished decision.

[00:26:30] Speaker 02:
It's an unpublished decision.

[00:26:32] Speaker 02:
which makes us reluctant to give very much to it.

[00:26:35] Speaker 00:
I tried to be honest to the record.

[00:26:37] Speaker 02:
I appreciate it.

[00:26:38] Speaker 00:
Okay.

[00:26:40] Speaker 00:
I do also want to say, though, at the end of the day, you have NDOC setting a policy, and there's no evidence that that policy is reasonable.

[00:26:52] Speaker 00:
So I go back to what do doctors know about hep C, and what do they know about the treatment of it, and why did they delay in Ms.

[00:26:59] Speaker 00:
Carley, and why is that not deliberate

[00:27:01] Speaker 00:
indifference or delay in treatment when they had other options available.

[00:27:05] Speaker 00:
I understand the state is making resource arguments, which ultimately the BOP must have been making too, right, because they set some type of priority.

[00:27:15] Speaker 00:
But even the priority schedule set out by BOP does not indicate that she shouldn't receive priority treatment.

[00:27:23] Speaker 00:
In fact, even under its

[00:27:26] Speaker 00:
doctrine, which, again, there's no evidence that it is reasonable or constitutional or meets constitutional muster.

[00:27:33] Speaker 00:
She still qualifies for the treatment and isn't given it when you look at the detail of their policy.

[00:27:39] Speaker 00:
So they're coming in and saying, hey, we followed BOP.

[00:27:43] Speaker 00:
We adopted their policy.

[00:27:45] Speaker 00:
We think BOP is the supreme god of all institutional regulations.

[00:27:51] Speaker 00:
But they didn't even follow that.

[00:27:53] Speaker 00:
She would have been under the BOP guidelines that they're citing to.

[00:27:57] Speaker 00:
She would have been high priority category two out of the five or four high priority categories.

[00:28:08] Speaker 00:
So even then, she wasn't given the appropriate treatment.

[00:28:11] Speaker 00:
And I think that is why the state is not entitled to qualified immunity.

[00:28:20] Speaker 00:
I also believe that this particular defendant, the only defendant that Judge Dew left remaining in this case, had personal participation by virtue of his role on the committee.

[00:28:30] Speaker 00:
He understood the policy because he says, I borrowed it from BOP.

[00:28:38] Speaker 00:
And he personally responded to grievances and had to have reviewed her records to do that.

[00:28:44] Speaker 00:
So I don't think that they can say that she had no personal, that he had no personal participation.

[00:28:50] Speaker 00:
I see my time is up.

[00:28:51] Speaker 00:
I am asking you to affirm the district court's decision in this case.

[00:28:56] Speaker 00:
Thank you.

[00:28:57] Speaker 00:
Thank you.

[00:29:07] Speaker 03:
First, before I start, I'd like to ask the court if there's any questions that would like to be addressed up front before I start.

[00:29:13] Speaker 01:
Go ahead.

[00:29:14] Speaker 03:
OK.

[00:29:15] Speaker 03:
Second of all, first of all, I want to say that this case is about prioritization.

[00:29:18] Speaker 03:
This is what it's always been about.

[00:29:20] Speaker 03:
And so that's what you're talking about.

[00:29:23] Speaker 03:
When you're talking about prioritization, you're talking about people have to go first because other people can't.

[00:29:28] Speaker 03:
Second of all, I want to emphasize that, yeah, there was a consent decree.

[00:29:32] Speaker 03:
But guess what?

[00:29:33] Speaker 03:
That was a consent decree we voluntarily entered into.

[00:29:35] Speaker 03:
There was no injunctive relief.

[00:29:37] Speaker 03:
There was nothing happening.

[00:29:38] Speaker 03:
This is something that the MDOT wanted to do all along.

[00:29:41] Speaker 03:
They were trying to do it, and they were trying to prioritize patients in the best they could.

[00:29:45] Speaker 03:
Third, that the MDOT 219.02 specifically says that the hepatitis C committee only convenes to review and discuss all inmate patients who have been referred for possible treatment.

[00:29:58] Speaker 03:
Unless they've been referred, the hepatitis C committee never sees them.

[00:30:02] Speaker 03:
Finally, Carly's own expert even acknowledges that decisions to prioritize treatment should be left in the hands of treating medical providers and also agree that the sickest patient should be treated first, which is what our policy provided for.

[00:30:17] Speaker 03:
Finally, this case is governed by not Farmer, but Estelle.

[00:30:22] Speaker 03:
states that this is a matter of medical judgment for NDOC medical providers.

[00:30:25] Speaker 03:
They were doing their best to prioritize treatment for the inmates' care.

[00:30:28] Speaker 03:
Dr. Reines was following the recommendations of the people who were actually there on the ground, with their boots on the ground, diagnosing Carly.

[00:30:36] Speaker 03:
And therefore, he should not be found violating the Constitution, let alone violating a clearly established constitutional right.

[00:30:42] Speaker 03:
Accordingly, Dr. Reines is entitled to qualified immunity, and this court should therefore reverse the district court's order denying

[00:30:48] Speaker 03:
Dr. Anderson's motion for summary judgment.

[00:30:51] Speaker 03:
And I thank Senate's submitted.

[00:30:52] Speaker 03:
Thank you, Your Honors.

[00:30:54] Speaker 01:
Thank you.

[00:30:54] Speaker 01:
Thank you both for your arguments this morning.