[00:00:00] Speaker 04:
You may begin when you're ready.

[00:00:06] Speaker 04:
Good morning.

[00:00:06] Speaker 04:
May it please the court.

[00:00:07] Speaker 04:
Tracy Akis appearing on behalf of the appellant, Ms.

[00:00:10] Speaker 04:
Kaylin Dana, who is present with us today.

[00:00:13] Speaker 04:
I would like to reserve five minutes of my time for rebuttal.

[00:00:17] Speaker 04:
Ms.

[00:00:17] Speaker 04:
Dana is a transgender woman with gender dysphoria and she appeals from the dismissal with prejudice of her second amended complaint, which generally alleged violations of the eighth and 14th amendments while she was incarcerated by the Idaho Department of Corrections.

[00:00:33] Speaker 04:
The district courts misapplication of the concept of group pleading led it to make reversible errors in its analysis of the complaints plausibility and of the requirements of section 1983.

[00:00:46] Speaker 04:
To start, I want to turn to two basic principles, and for now, I'm gonna set aside the claims against defendants Avancho and Taylor.

[00:00:54] Speaker 04:
First, defendant's motion to dismiss was brought under Rule 12B6, and so Ms.

[00:00:59] Speaker 04:
Dana's factual allegations must have been taken as true.

[00:01:03] Speaker 04:
And second, collective allegations, or group pleading, I believe this court has used both terms, are permissible, so long as defendants have notice of what they are alleged to have done.

[00:01:15] Speaker 04:
So starting with the first, taking factual allegations is true.

[00:01:19] Speaker 04:
This is true even when allegations are collective, by which I mean they refer to a group of defendants who are all alleged to have engaged or in this case failed to engage in the same conduct.

[00:01:33] Speaker 04:
The defendants have not cited a single case in which collective allegations were disregarded merely because they were collective.

[00:01:42] Speaker 04:
And this is because the plausibility analysis under Rule 12b-6 takes the allegations as true and then asks whether entitlement to relief has been shown.

[00:01:52] Speaker 04:
And if it were otherwise, no case could ever use allegations that were collective and state a claim this court could not have reached its decisions in Selingo and Swobat.

[00:02:05] Speaker 04:
year though, the defendants convinced the district court it was not plausible that they all did the same thing.

[00:02:12] Speaker 03:
Let me ask you, because I am having trouble trying to figure out the plausibility alleged that the individual defendants had sufficient culpable mental state for any of the claims that are brought forward.

[00:02:31] Speaker 03:
I understand you can bring group claims, but you have to be able

[00:02:34] Speaker 03:
to allege the plausibility to identify all of the different factors related to the individuals.

[00:02:44] Speaker 03:
And where in the second amended complaint do you allege how the healthcare defendants are liable independent from their liability as the MTC or the grievance form defendants?

[00:03:00] Speaker 03:
I'm just having trouble figuring that out.

[00:03:04] Speaker 04:
I hope I can help you with that, Your Honor.

[00:03:05] Speaker 03:
OK, thank you.

[00:03:06] Speaker 04:
So first, I will say there is just one health care defendant on this appeal who is not also what we've called an MTC defendant, a member of the Management and Treatment Committee.

[00:03:16] Speaker 04:
And that one health care defendant is Elizabeth Adkisson.

[00:03:20] Speaker 04:
The allegations regarding Miss Adkisson are that Miss Dana directly requested treatment for her for gender dysphoria.

[00:03:27] Speaker 04:
She did not receive that treatment.

[00:03:30] Speaker 04:
The collective allegations regarding the health care defendants are that they had no medical basis for denying that treatment to her.

[00:03:45] Speaker 04:
Our position is that that collective allegation should have been taken as true, and it's supported by allegations in the complaint that none of the defendants here followed the WPATH standards for diagnosing gender dysphoria.

[00:03:57] Speaker 03:
I'm sorry, again, it's not clear to me what the health care group did

[00:04:00] Speaker 03:
wrong, independent from the other two groups.

[00:04:02] Speaker 03:
Did you just say that what it was?

[00:04:05] Speaker 03:
What is it?

[00:04:06] Speaker 04:
Well, Your Honor, the health care defendants are all alleged to have been responsible for rendering medical care to defendants, and that includes Ms.

[00:04:14] Speaker 04:
Atkisson, from whom Ms.

[00:04:15] Speaker 04:
Dana directly requested a gender dysphoria diagnosis.

[00:04:19] Speaker 04:
and treatment, and Ms.

[00:04:20] Speaker 04:
Dana received none of that care.

[00:04:23] Speaker 04:
Despite the health care defendants, and I think this is important to answering your question, being on notice of her distress due to all of the health service request forms that she was submitting.

[00:04:34] Speaker 03:
I'm not quite sure that's in your second amended complaint, but go ahead.

[00:04:42] Speaker 03:
I mean, it seems like several of the MTC defendants appear to have attended an MTC meeting, but were not recorded as weighing in.

[00:04:54] Speaker 03:
For example, I think it was a psych tech at Kalin Hart.

[00:04:58] Speaker 03:
And so I'm trying to figure out what facts in the second amendment complaint indicate that defendants like Ms.

[00:05:05] Speaker 03:
Hart both recognized the excessive risk to Ms.

[00:05:07] Speaker 03:
Dana's health and consciously disregarded that risk.

[00:05:11] Speaker 04:
So Your Honor, the allegations that would be collective here are that each of these defendants failed to apply clinical diagnostic criteria for gender dysphoria.

[00:05:23] Speaker 04:
What renders that allegation plausible is, first, that we have pledged the WPAS standards of care.

[00:05:30] Speaker 04:
Second, that we have pledged that in the available meetings of the MTC,

[00:05:36] Speaker 04:
They made up completely different factors that are not recognized under any clinical standard.

[00:05:43] Speaker 04:
To say that, well, this defendant could not have been alleged to have applied those wrong factors because they were not at this meeting, I think is to misunderstand the complaint.

[00:05:53] Speaker 01:
So this complaint- Help me out a little bit when you say that they are applying incorrect

[00:06:00] Speaker 01:
standards such that we've got deliberate indifference.

[00:06:03] Speaker 01:
I mean, what we've got is a number of meetings of this MTC committee.

[00:06:09] Speaker 01:
And they discuss the case numerous times.

[00:06:13] Speaker 01:
And we have at least one person, Dr. Campbell, who pretty much from the beginning is leaning toward a diagnosis, but the others on the committee disagree.

[00:06:27] Speaker 01:
It's hard for me to see this as deliberate indifference instead of disagreement.

[00:06:32] Speaker 01:
Help me out as to why this is deliberate indifference instead of disagreement among the members of the committee.

[00:06:39] Speaker 04:
Sure, Your Honor.

[00:06:39] Speaker 04:
So for purposes of the Eighth Amendment disagreement, you can show that treatment is medically unacceptable under the circumstances where

[00:06:52] Speaker 04:
A medical provider is not qualified, and this complaint alleges that these MTC defendants, with the possible exception of Dr. Campbell, were not qualified or trained to diagnose gender dysphoria.

[00:07:03] Speaker 01:
Now, were they medical professionals, and what were their degrees?

[00:07:06] Speaker 01:
What do we know about them?

[00:07:08] Speaker 04:
Several of them were not medical professionals, and I'm going to pull my site here.

[00:07:13] Speaker 04:
I believe that was in paragraph 63 of the complaint.

[00:07:20] Speaker 01:
Okay, I'm at 53.

[00:07:24] Speaker 04:
It is not 63, but I will find it for you quickly, or give it to you on rebuttal, because I do want you to have that site, Your Honor.

[00:07:29] Speaker 01:
Okay, I mean, they're referred to as clinicians, so what's that mean?

[00:07:33] Speaker 04:
They are referred to as clinicians.

[00:07:36] Speaker 01:
What does that mean?

[00:07:36] Speaker 04:
That's simply their job title with Corizon.

[00:07:40] Speaker 04:
I think to assume that that means they have any qualifications to assess gender dysphoria would be drawing inferences.

[00:07:46] Speaker 01:
Are they medical doctors?

[00:07:48] Speaker 01:
Do you know?

[00:07:48] Speaker 04:
I believe two of them are.

[00:07:50] Speaker 04:
Dr. Campbell is a psychologist, and there's also a doctor, I hope I pronounced it right, Eliason.

[00:07:56] Speaker 04:
Other than that, this complaint does not allege that they were doctors.

[00:08:00] Speaker 01:
And in the notes of these meetings, we see various things of, well, seemed coached, no indication of clinical distress.

[00:08:11] Speaker 01:
I mean, these things, I think, are relevant.

[00:08:15] Speaker 04:
Yes, Your Honor.

[00:08:16] Speaker 04:
But what the complaint also alleges is that each of these defendants had notice of Ms.

[00:08:23] Speaker 04:
Dana's suicidal tendencies.

[00:08:24] Speaker 04:
The complaint pleads that she was on suicide watch on multiple occasions.

[00:08:29] Speaker 04:
The complaint pleads that each of these defendants had notice of her request for care.

[00:08:33] Speaker 04:
And we've attached her health service request forms and her grievance forms.

[00:08:37] Speaker 01:
Oh, I read them.

[00:08:38] Speaker 01:
I saw them.

[00:08:39] Speaker 01:
I read them.

[00:08:39] Speaker 04:
She's being very, very clear.

[00:08:42] Speaker 04:
about the distress she's in.

[00:08:44] Speaker 04:
By, I believe it was May of 2019, each of these defendants had received Dr. Etner's report, which said, these are the correct standards and the ones you are applying don't relate at all to the accepted criteria for diagnosing gender dys... Now, I understand that there was some delay after receiving Dr. Etner's report, but within a few months of having received that report, the committee then accepts the diagnosis.

[00:09:10] Speaker 04:
of respectfully, Your Honor, I would think a delay of almost six months after that was more than a few months to Ms.

[00:09:14] Speaker 04:
Dana.

[00:09:15] Speaker 04:
She was suicidal.

[00:09:16] Speaker 04:
She was in the utmost distress.

[00:09:19] Speaker 04:
And this committee knew it.

[00:09:20] Speaker 04:
So for the committee to understand that it's making up criteria, to understand that she is in this level of distress, and to persist and continue to delay the diagnosis, even though they're not seeing a change.

[00:09:34] Speaker 04:
And this, I think, is important.

[00:09:36] Speaker 04:
When care is delayed,

[00:09:39] Speaker 04:
and a condition does not improve.

[00:09:41] Speaker 04:
Maybe, and I'm not saying that was the case here, maybe the first diagnosis was wrong, but when it's allowed to persist without the medical providers changing their position, then it can certainly rise to the level of delivery.

[00:09:52] Speaker 01:
Yeah, so let me make sure I got the dates.

[00:09:53] Speaker 01:
Dr. Edmonds' report is transmitted to the members on May the 7th, and it's presented to the committee, I guess, October the 2nd that the diagnosis is confirmed.

[00:10:09] Speaker 01:
Do I have those dates right?

[00:10:11] Speaker 04:
Yes, you do, Your Honor.

[00:10:12] Speaker 04:
OK.

[00:10:12] Speaker 04:
So five or six months.

[00:10:14] Speaker 03:
So you have in the second, I think your argument, Second Amendment complaint seems to allege that the 25 individual MTC defendants were deliberately indifferent by failing to reassess Ms.

[00:10:35] Speaker 03:
Dana between November 2018 and October 2019.

[00:10:41] Speaker 03:
But where does the Second Amendment complaint plausibly allege that each of those defendants bore responsibility for reassessing her?

[00:10:52] Speaker 04:
Your Honor, these defendants were members of the committee that we allege was responsible for rendering a gender dysphoria diagnosis to inmates at IDOC.

[00:10:59] Speaker 03:
Where in the Second Amendment complaint?

[00:11:03] Speaker 03:
I'm just trying to figure out, were you plausibly allege that each of those defendants bore responsibility for reassessing her?

[00:11:11] Speaker 04:
So paragraph one of the second amended complaint says that the management and treatment committee was responsible for making gender dysphoria diagnosis.

[00:11:19] Speaker 04:
Each of the paragraphs that identifies the individual defendants identifies the ones that were responsible for the members of this committee.

[00:11:25] Speaker 04:
The collective allegations of the complaint identify collectively the MTC defendants had knowledge of Ms.

[00:11:33] Speaker 04:
Dana's distress.

[00:11:34] Speaker 04:
That means each one of those singular defendants.

[00:11:38] Speaker 04:
The complaint alleges that each one of them

[00:11:41] Speaker 04:
was applying made-up criteria, and that they knew it, certainly by no later than Dr. Edner's report.

[00:11:47] Speaker 04:
And again, that is taken to be an allegation as to each one of them.

[00:11:50] Speaker 04:
It is though we said defendant A, defendant B, and defendant C, as opposed to MDC defendants.

[00:11:56] Speaker 03:
It seems, based on my reading, that you're not alleging who is responsible for reassessing her, just that someone in the group should have reassessed her.

[00:12:08] Speaker 03:
And so I just wanted to give you an opportunity to direct me where in the complaint that is set out if you think differently.

[00:12:20] Speaker 04:
Your Honor, our position is that each one of them was responsible for diagnosing her.

[00:12:27] Speaker 04:
ultimately not supported by the facts and discovery would show that one of them was responsible and the others were not.

[00:12:34] Speaker 04:
Maybe we could flesh that out.

[00:12:36] Speaker 04:
But I want to emphasize here we're at the pleading stage with an incarcerated defendant operating with the limited information available to her.

[00:12:44] Speaker 04:
What she knows is there's a committee and that that committee is responsible for giving her a diagnosis and that it did not.

[00:12:51] Speaker 01:
What do we do with, and I don't see it anywhere in the papers here, is there going to be a qualified immunity defense?

[00:12:59] Speaker 01:
Because we're seeking damages now.

[00:13:00] Speaker 01:
I mean, she's no longer incarcerated, so the only issue I think is damages.

[00:13:05] Speaker 01:
Is there a qualified immunity defense available?

[00:13:10] Speaker 04:
Well, our position would be no, Your Honor.

[00:13:12] Speaker 01:
Well, with qualified immunity, theoretically on the table, I guess that's my question.

[00:13:19] Speaker 04:
if we were to move past the bleeding stages and the defendants were to phrase that.

[00:13:24] Speaker 02:
It's an issue you have to deal with, certainly.

[00:13:27] Speaker 02:
I don't think they're going to waive qualified immunity.

[00:13:29] Speaker 01:
I'm trying to figure out just what the, in the abstract sense is, what claims of qualified immunity would be available to a committee that's accused of having, who is charged with having made an erroneous diagnosis.

[00:13:42] Speaker 04:
Well, Your Honor, again, I think it's the individual defendants and not the committee.

[00:13:46] Speaker 01:
No, I understand that.

[00:13:47] Speaker 01:
Do the individual members of a committee who have made, in your view, an incorrect diagnosis, do they get qualified immunity?

[00:13:55] Speaker 01:
In the abstract, whether on the facts of this case, that's not what I'm asking.

[00:14:03] Speaker 01:
Maybe you say, well, that's a later question.

[00:14:05] Speaker 01:
OK.

[00:14:06] Speaker 01:
This may delay you, but I want to ask about the alleged assault by Geib, which is quite a different proposition.

[00:14:16] Speaker 01:
As I read the complaint, your client is on tier one, I guess, tier two.

[00:14:28] Speaker 01:
I don't know if the right word is yet attack, but certainly sexual harassment.

[00:14:34] Speaker 01:
Your client asks for a change of tier, which she gets.

[00:14:38] Speaker 01:
Guy almost very quickly thereafter has moved on to the same tier, and then there's a sexual attack.

[00:14:45] Speaker 01:
You don't name very many people here.

[00:14:49] Speaker 01:
You name two.

[00:14:50] Speaker 01:
You name defendant Walton, and you name Lieutenant Purcell, who's not a defendant.

[00:14:57] Speaker 01:
But you then say, each of the custodial defendants failed to protect plaintiff.

[00:15:03] Speaker 01:
Well, that can't be true.

[00:15:04] Speaker 01:
That is to say that each, because you've got people who are not even in the same facility that you're alleging know about this.

[00:15:11] Speaker 01:
So maybe there's some.

[00:15:13] Speaker 01:
But help me out in terms of whether you've alleged enough that we can get discovery that somebody failed in their duty or maybe deliberately allowed access.

[00:15:23] Speaker 01:
I mean, what we have is an attack.

[00:15:26] Speaker 01:
We know from the oral, we assume the correctness of the information that Walton and Purcell

[00:15:33] Speaker 01:
knew because she reported her concerns and requested to be moved.

[00:15:38] Speaker 01:
Now, I don't know who ordered the removal, but we can assume that they did.

[00:15:43] Speaker 01:
But help me out as to why that's enough to get past the pleading stage as to that some responsible person improperly allowed Guy access.

[00:15:56] Speaker 04:
Well, Your Honor, I think I can help a lot here, and that is there was a shift in the reply brief, and we are not going to be pursuing the failure to protect based on the sexual assault in this appeal.

[00:16:04] Speaker 01:
However, that sexual assault— Oh, I totally missed that then.

[00:16:07] Speaker 01:
Okay, so that's out of the case.

[00:16:09] Speaker 04:
It is in one sense, and that is the claim against defendant Taylor, who forced Miss Dana to shower in the dark after knowing of her complaints of these sexual assaults and knowing that this would have a very severe psychological impact on her, to use a, I guess, pop phrase as a trigger.

[00:16:27] Speaker 01:
So it is in the case in that sense.

[00:16:29] Speaker 01:
I totally missed that you dropped the sexual assault by Guyb.

[00:16:32] Speaker 01:
I apologize if I hit it in a footnote.

[00:16:34] Speaker 01:
I don't know.

[00:16:35] Speaker 01:
I just missed it.

[00:16:37] Speaker 03:
Thank you.

[00:16:48] Speaker 00:
May it please the court, Michael Zarian, on behalf of the Department of Corrections Defendants.

[00:16:53] Speaker 00:
And before I get into my answer, I just wanted to address your question, Judge Fletcher, about qualified immunity.

[00:16:57] Speaker 00:
And qualified immunity will be a part of this case going forward.

[00:17:00] Speaker 00:
I believe there was an issue with Judge Windmill in the screening order wanted qualified immunity to be raised in an early summary judgment motion or something and not in the motion to dismiss.

[00:17:09] Speaker 00:
So that will be a part of the case going forward, absolutely.

[00:17:12] Speaker 03:
Am I correct?

[00:17:13] Speaker 03:
No one asserted qualified immunity defense?

[00:17:16] Speaker 00:
Not at the motion to dismiss stage yet, Your Honor.

[00:17:18] Speaker 00:
But I think as the panel has correctly picked up on, as at the heart of this case, this case really is a civil procedure case.

[00:17:29] Speaker 00:
And after warnings from Judge Nye and Judge Windmill and a blueprint on how to fix the deficiencies in the pleaded complaint, even with sophisticated counsel, Dana filed a second amended complaint that made the shotgun pleading problem worse.

[00:17:40] Speaker 00:
The new complaint added more than 20 new defendants, assigned 35 individual defendants into four overlapping groups, and made general allegations against the groups collectively, sometimes lumping several groups together.

[00:17:51] Speaker 00:
That type of shotgun pleading violates Rule 8, which is meant to protect courts from having to parse inscrutable pleadings and protect defendants from the unfairness of having to incur the costs of litigation and face the prospect of liability without adequate notice of what they're alleged to have done wrong.

[00:18:06] Speaker 01:
Why isn't the cure for that for each one of the defendants for whom they're really into what they just moved to dismiss?

[00:18:12] Speaker 01:
Why do you dismiss the entire complaint when, in fact, there may be very plausible allegations against people who are named and against whom there are very specific allegations?

[00:18:20] Speaker 00:
I think the answer is, Your Honor, that the allegation, the causes of action are not delineated against any individual person, but against the MTC defendants or healthcare defendants collectively.

[00:18:30] Speaker 01:
But each one of them is named, and as to those who are named as to whom

[00:18:34] Speaker 01:
There really is nothing specific alleged against them.

[00:18:38] Speaker 01:
Why isn't there the solution for them to individually move to dismiss?

[00:18:42] Speaker 01:
Why do we have to dismiss everybody when there are some specific allegations directed at specific people?

[00:18:50] Speaker 00:
Yes, Your Honor.

[00:18:51] Speaker 00:
So I think Dana has argued that everybody acted in the same way.

[00:18:56] Speaker 00:
When the MTC defendants is used, everybody's name should be inserted in that spot.

[00:19:00] Speaker 01:
You say that Dana has alleged that everybody acted in the same way.

[00:19:04] Speaker 01:
That's not quite right.

[00:19:05] Speaker 01:
Now, if you characterize it as collective, if it is collective, that is almost sort of by definition, everybody acted in the same way.

[00:19:17] Speaker 01:
But that's not quite what the complaint says.

[00:19:19] Speaker 00:
well you know i think so there are specific allegations it more specific actual allegations directed to specific people in the fact section and then you get to the cause of action and if you were to read the cause of action has similar factual complaints but alleged against everybody and that makes the complaint self-contradictory and internally inconsistent so for example

[00:19:36] Speaker 00:
The complaint later says the MTC defendants denied Ms.

[00:19:40] Speaker 00:
Dana the appropriate diagnosis in November 2018.

[00:19:43] Speaker 00:
But the complaint also says that not everybody was at the November 2018 meeting.

[00:19:47] Speaker 00:
So it's not a simple matter of taking the people at the November 2018 meeting and carrying it forward.

[00:19:53] Speaker 00:
A defendant wouldn't know whether they are alleged to have participated in the November 2018 meeting or not because these are contradictory allegations.

[00:20:00] Speaker 00:
And the same thing again.

[00:20:01] Speaker 00:
the empty seat of attendance at the February 2018 meeting focused on questioning her credibility.

[00:20:06] Speaker 01:
Well, I get that.

[00:20:07] Speaker 01:
So why isn't the solution for those individuals to move to dismiss?

[00:20:11] Speaker 01:
And instead of everybody gets to dismiss.

[00:20:14] Speaker 00:
Well, I think the answer is we don't know exactly who acted in which way, and the defendants don't know.

[00:20:18] Speaker 01:
And even there's parts... Well, no, that's not quite true, because the notes here tell you, well, Dr. Campbell said this, and so-and-so said that.

[00:20:26] Speaker 01:
We've got some of this that actually is attached to people.

[00:20:29] Speaker 00:
Yes, your honor, I think that would, I mean, nobody should have to guess whether they are included in the group or not.

[00:20:36] Speaker 00:
And so maybe an example is helpful.

[00:20:37] Speaker 01:
So in the equal protection claim, there's an allegation that all of the- Actually, I'm much more interested in the action of the committee and the failure to diagnose the deliberate interference.

[00:20:48] Speaker 01:
That's the one I'm interested in.

[00:20:49] Speaker 00:
Right, Your Honor.

[00:20:49] Speaker 00:
I guess my point is, this is how Dana is arguing the complaint should be read, is when it says the custodial defendants disciplined Dana for wearing eyeliner, for example.

[00:21:02] Speaker 01:
I'm not interested in that.

[00:21:03] Speaker 01:
I'm talking about the MTC defendants.

[00:21:05] Speaker 01:
I'm talking about the diagnosis, or the failure to diagnose.

[00:21:09] Speaker 01:
The deliberate indifference complaint.

[00:21:10] Speaker 00:
I understand, Your Honor.

[00:21:11] Speaker 00:
The example was just that Dana says that it should apply to everybody.

[00:21:15] Speaker 00:
When it says that name, it says MTC defendants, we are saying that all of the MTC defendants acted in this way when that phrase is used.

[00:21:22] Speaker 00:
But in other parts, it says not all of the MTC defendants.

[00:21:25] Speaker 00:
So each defendant is not sure which group they belong in.

[00:21:29] Speaker 00:
And it's not a simple matter of carrying specific allegations forward, especially when the allegations that everybody acted in the same way.

[00:21:36] Speaker 01:
Well, you see, that's not the allegation as I read the complaint.

[00:21:39] Speaker 01:
I mean, you can tell me it's collective, and then you can tell me the definition of collective allegation is that everybody acted in the same way.

[00:21:46] Speaker 01:
But that's because you've attached the word to it of collective.

[00:21:49] Speaker 01:
That's not what the complaint says.

[00:21:50] Speaker 00:
And I actually don't understand, Daniel, to have distinguished between, in the quest even, to disaffirm as, or reverse as to certain defendants or... No, no, I totally take your point.

[00:22:00] Speaker 01:
There are parts of this complaint that are total blunderbuss, everybody in the category did this.

[00:22:06] Speaker 01:
But then when you look at the specific allegations that are factual allegations, there's some delineation as to X did this, Y did that.

[00:22:16] Speaker 00:
Perhaps, Your Honor, yes.

[00:22:17] Speaker 00:
And then it would just be a matter of not knowing where those people fall in the cause of action itself.

[00:22:22] Speaker 00:
And then there would be another layer of the Rule 12 problem, which this Court has also picked up on, is not knowing that this looks like disagreement, this looks like difference of medical opinion, it is not a plausible allegation of

[00:22:37] Speaker 00:
of deliberate indifference of any person who consciously knew that this was the wrong course of action, knew Dana's treatment history, yet chose that in deliberate disregard to an excessive risk that that course of treatment would cause as opposed to a different course of treatment.

[00:22:54] Speaker 03:
Let's focus on Dr. Campbell, if we could.

[00:22:57] Speaker 03:
According to the second amended complaint, Dr. Campbell knew that Ms.

[00:23:03] Speaker 03:
Dana met the gender dysphoric agnostic criteria in October and November of 2018, received a copy of the report discussing Ms.

[00:23:12] Speaker 03:
Dana's suicidal behavior.

[00:23:15] Speaker 03:
Nuss in May of 2019, and yet the committee did not diagnose her with gender dysphoria until October of 2019.

[00:23:26] Speaker 03:
So I guess my question for you, drawing inferences in Ms.

[00:23:33] Speaker 03:
Dana's favor, why isn't that enough to plausibly state a claim?

[00:23:38] Speaker 00:
Against which defendant, Your Honor?

[00:23:40] Speaker 03:
Dr. Campbell.

[00:23:41] Speaker 00:
Against Dr. Campbell?

[00:23:43] Speaker 00:
Understood, Your Honor.

[00:23:44] Speaker 00:
Well, so Dr. Campbell, in the October meeting, as the notes attached to the complaint make clear, Dr. Campbell said, this is where I'm leaning.

[00:23:51] Speaker 00:
I think this is a complicated question, and I invite discussion.

[00:23:54] Speaker 00:
As this court talked about in EDMO, the MTC does not actually make medical decisions and has limited information about medical situations.

[00:24:03] Speaker 00:
It's Dr. Campbell who does make the final decision.

[00:24:05] Speaker 00:
But Dr. Campbell asked for input from those who

[00:24:08] Speaker 00:
see Dana on a more regular basis, received that input and made a good faith belief of what the diagnosis should be.

[00:24:16] Speaker 00:
And between November 2018 and October 2019, there aren't any allegations of any changed circumstances that would give cause to, there's a complete gap in the pleadings as to what was going, facts on the ground that was happening with Dana that would cause a revisiting of that diagnosis.

[00:24:35] Speaker 00:
And that's why the only plausible allegation is that there was ongoing monitoring as to the course of treatment for various potential mental disorders such as borderline personality disorder or potential bipolar disorder.

[00:24:47] Speaker 00:
And as it became clear that this was not working, the treatment was altered in October 2019.

[00:24:53] Speaker 01:
As I read the complaint,

[00:24:55] Speaker 01:
sympathetically with respect to the actions of Dr. Campbell and the committee.

[00:25:02] Speaker 01:
Dr. Campbell pretty early on is leaning toward an appropriate diagnosis, but he allows the committee to persuade him otherwise, or maybe I should say override his judgment.

[00:25:13] Speaker 01:
Why isn't that an appropriate allegation of a cause of action when it appears that Dr. Campbell is the one who has the real professional qualifications, and so far as we can tell, the others do not?

[00:25:29] Speaker 00:
Yes, Your Honor, the whole purpose of the MTC is a multidisciplinary committee where you have people who aren't doctors, you have people who are in charge of security, some people who are social workers, some people who are mental health professionals.

[00:25:40] Speaker 01:
That's exactly my point.

[00:25:42] Speaker 00:
Right, and I think it is absolutely reasonable for, and probably the medically correct way to address this is to get input from those different, those people who have been working with Dana on a daily basis, and get all the information possible before rendering a diagnosis.

[00:25:58] Speaker 00:
And I think that's what Dr. Campbell did here, and under Twombly and Iqbal, I suppose you can imagine a bad faith scenario

[00:26:05] Speaker 00:
Twombly and Ickwell make clear that even if you can imagine a bad-faith scenario, that's not enough.

[00:26:10] Speaker 00:
There has to be something to make this plausible.

[00:26:12] Speaker 00:
So in Twombly, you can imagine... Who had the ultimate say?

[00:26:15] Speaker 00:
Dr. Campbell.

[00:26:17] Speaker 03:
He had the ultimate say.

[00:26:18] Speaker 00:
That's correct.

[00:26:18] Speaker 00:
Dr. Campbell is the final decision-maker.

[00:26:20] Speaker 03:
But because the others persuaded him not to, you say that there was no... that what's been alleged is not sufficient.

[00:26:30] Speaker 00:
I would say that the others gave him information to inform his decision.

[00:26:33] Speaker 00:
He came in and said, this is a complicated issue.

[00:26:36] Speaker 00:
This is where I'm leaning.

[00:26:37] Speaker 00:
This is just from the nose.

[00:26:38] Speaker 00:
A complicated issue.

[00:26:39] Speaker 00:
This is where I'm leaning, but I just invite discussion.

[00:26:41] Speaker 00:
And that discussion informed his judgment.

[00:26:44] Speaker 03:
I guess this goes a little bit to what Judge Fletcher was saying.

[00:26:52] Speaker 03:
Just a little frustrating here, I guess, because it seems like part of the defense against Ms.

[00:26:57] Speaker 03:
Dana's claims is that decisions are made by committee, as you just stated, and that therefore no individual is liable.

[00:27:08] Speaker 03:
And I'm just trying to figure out, viewing it that way, is that not always going to be an end run around her Eighth Amendment right to adequate medical treatment?

[00:27:20] Speaker 00:
You mean making the decision as a committee?

[00:27:23] Speaker 00:
I suppose if there really were a committee of all medical professionals who could all have deliberate indifference because they know sufficient facts about Dana's medical history and knew enough about the diagnosis to know that this was

[00:27:36] Speaker 00:
incorrect yet choose it intentionally anyways I suppose there could be some sort of panel where everybody could be deliberately indifferent, but that's not what we have here and Just if you're asking you know facts on the I understand what's been pled, but you're asking facts on the ground Is this going to cause a big problem well?

[00:27:51] Speaker 00:
And in EDMO, for example, you see there was one doctor who is the person in charge and the decision maker.

[00:27:55] Speaker 00:
And it's not the MTC that makes final decisions.

[00:27:58] Speaker 00:
And it generally is not hard to find these prisoner complaints often come forward as a policy or often come forward against the person who treated that

[00:28:06] Speaker 00:
inmate specifically, and so it's often not hard to find the person who made the decision.

[00:28:11] Speaker 00:
But the way that this complaint has been pleaded has made it sprawling accusations against many people who have many different backgrounds and many different training.

[00:28:20] Speaker 01:
But it's very specific as to Dr. Campbell.

[00:28:23] Speaker 00:
There are some there are more specific complaints asked to Dr. Campbell, but I would still say that at least what the what the allegations are against Dr. Campbell make it actually look more like good faith and almost any of the other ones.

[00:28:32] Speaker 00:
The the rationales that have been criticized by Dr. Etner, for example, aren't rationales that Dr.

[00:28:38] Speaker 00:
Campbell put forward, that Dr. Campbell uses the exact same language from the WPATH standards, for example, as your honor noted, clinical distress.

[00:28:45] Speaker 00:
Is this being caused by, you know, and gender nonconformity, for example?

[00:28:49] Speaker 01:
One thing that gives me pause in response to your argument is that as soon as we get the report coming in from Dr. Etna,

[00:28:58] Speaker 01:
all of a sudden the diagnosis changes.

[00:29:01] Speaker 01:
Well, maybe it takes a few months, but the report from the outsider and the lawsuit prompts a change in the diagnosis, suggesting to me that, well, Dr. Campbell, in a sense, at least if I'm construing the complaint favorably, Dr. Campbell knew this all along, but he's now got a lawsuit and another professional who's telling him, you know what, you were right.

[00:29:27] Speaker 00:
Two things on that, Your Honor.

[00:29:29] Speaker 00:
The first would be that the lawsuit has been pending since July of 2018.

[00:29:31] Speaker 00:
So that's smack dab in the middle of the events.

[00:29:34] Speaker 01:
Yeah, but it's a pro se lawsuit for a while.

[00:29:36] Speaker 01:
We don't get Dr. Edner in here for a while.

[00:29:39] Speaker 00:
That's correct, Your Honor, but there's still allegations, there is a pending lawsuit, and that's in his mind, that this could be happening.

[00:29:48] Speaker 01:
But pro se lawsuits happen all the time.

[00:29:51] Speaker 01:
Council lawsuits, as this later became, with a report from a nationwide expert, that's a different proposition.

[00:29:58] Speaker 01:
And when that happens, all of a sudden Dr. Campbell says, oh, I guess that was right.

[00:30:04] Speaker 00:
Sure, Your Honor.

[00:30:05] Speaker 00:
And on that point, my response would just be that this is still just the only fair way to read this as a difference of opinion.

[00:30:14] Speaker 00:
And treatments often change over time.

[00:30:16] Speaker 00:
And you can see, Doctor, that there were a lot of possibilities as to what this is going to be.

[00:30:22] Speaker 00:
Hormone treatment is something that's very serious.

[00:30:24] Speaker 00:
And trying some of these other mental health strategies first is a completely reasonable decision.

[00:30:27] Speaker 00:
Even though WPATH standards

[00:30:29] Speaker 00:
recommend delaying at least six months of sustained clinical distress before making a decision.

[00:30:34] Speaker 00:
So waiting and seeing how these other things play out I think is by far extremely rational and we don't have anything rising close to the sort of deliberate indifference.

[00:30:43] Speaker 01:
We're waiting for things to play out when we have repeated statements of I am suicidal.

[00:30:50] Speaker 01:
Waiting for things to play out when someone says I am suicidal, that's a pretty risky way to proceed.

[00:30:55] Speaker 00:
Well, I wouldn't say waiting to play out.

[00:30:57] Speaker 00:
When I say waiting to play out, I don't mean doing nothing, I guess is what I'm saying.

[00:31:01] Speaker 01:
But nothing was done.

[00:31:02] Speaker 01:
They talked a lot, but that's the only thing that happened.

[00:31:06] Speaker 00:
Actually, in the complaint, Your Honor, in response to these health service requests, you can see that the doctors are saying, I am seeing Dana today.

[00:31:13] Speaker 00:
Dana is being seen daily.

[00:31:15] Speaker 00:
And so even by the allegations of the complaint, there is constant ongoing medical treatment.

[00:31:21] Speaker 00:
The only thing that is alleged to not have been done for

[00:31:24] Speaker 00:
a long period of time is a revisiting of the clinical diagnosis, not of any treatment at all.

[00:31:28] Speaker 01:
And so what I'm saying- Well, not of any treatment.

[00:31:32] Speaker 01:
Is seeing Ms.

[00:31:34] Speaker 01:
Dana treatment?

[00:31:35] Speaker 01:
I mean, she's asking for certain forms of treatment, none of which is provided.

[00:31:38] Speaker 01:
They keep talking to her, and they keep saying, we're not going to give you the diagnosis.

[00:31:43] Speaker 00:
I guess I think higher of psychotherapy, Your Honor, in that these discussions with Dana are meant to address many of the underlying theories of what was going on with Dana at the time of bipolar disorder or borderline personality disorder, some of these other disorders that you see them discussing in the notes at the MTC meeting, and that's what those meetings are about, not necessarily just meeting as the MTC.

[00:32:06] Speaker 03:
According to the Second Amendment complaint, three clinicians, Stewart, Clark, and Boggs, spoke up to individually oppose a gender dysphoria diagnosis after Dr. Campbell indicated that Ms.

[00:32:22] Speaker 03:
Dana met the diagnostic criteria.

[00:32:25] Speaker 03:
Would that be enough to plausibly state a claim?

[00:32:29] Speaker 00:
I would say no, Your Honor, and some of these doctors were not at all of the meetings.

[00:32:34] Speaker 00:
Some of these doctors, there's not enough to know what these doctors knew about Dana or knew about the diagnosis and have to know that it was wrong.

[00:32:43] Speaker 00:
These people come from all different backgrounds, work from different facilities across the state, and we just have almost no information about their background.

[00:32:54] Speaker 00:
And that's compounded on top of the group pleading problems, where it's not exactly clear what is alleged to have been done by those specific.

[00:33:00] Speaker 00:
There are certain comments you could, but there's other allegations that these defendants wouldn't know if they're being attributed to those people or not.

[00:33:09] Speaker 03:
No other questions.

[00:33:11] Speaker 00:
We ask that the court would affirm.

[00:33:18] Speaker 03:
You were out of time, but we went over time here, so I'll give you two minutes.

[00:33:22] Speaker 04:
I appreciate that.

[00:33:23] Speaker 04:
Thank you very much, Your Honor.

[00:33:24] Speaker 04:
I want to quickly address a couple things.

[00:33:26] Speaker 04:
The first is much of this discussion with counsel has gone beyond the scope of the complaint.

[00:33:31] Speaker 04:
We've now learned that Dr. Campbell is the one who makes the diagnoses.

[00:33:35] Speaker 04:
That's very helpful information.

[00:33:36] Speaker 04:
But as Your Honor noted, we do have other clinicians who were speaking up at these meetings.

[00:33:40] Speaker 04:
And for the allegations that they did not have training in gender dysphoria, I would refer the court to paragraph 108 of the second amended complaint.

[00:33:49] Speaker 04:
That's the site I promised.

[00:33:52] Speaker 04:
Unless the court has other questions.

[00:33:56] Speaker 02:
I do.

[00:33:57] Speaker 02:
Yes.

[00:33:58] Speaker 02:
Looking in the briefing in this case, I did not see you asking us to send this case back for a chance to amend.

[00:34:06] Speaker 02:
Did you request that in your brief?

[00:34:08] Speaker 04:
Your Honor, we

[00:34:10] Speaker 04:
We requested reversal of the dismissal with prejudice to the extent that with prejudice would request an opportunity to replete.

[00:34:17] Speaker 04:
I think that would be appropriate.

[00:34:19] Speaker 04:
I would point out that council mischaracterized the number of attempts to amend.

[00:34:22] Speaker 04:
This was a pro se complaint.

[00:34:24] Speaker 04:
There was one complaint filed by council, a motion for leave to file a second amended complaint that the district court said it did a good job of answering its concerns.

[00:34:32] Speaker 04:
So to suggest that this complaint has

[00:34:34] Speaker 04:
seen repeated iterations that ignored the district court, I think mischaracterizes the record.

[00:34:39] Speaker 04:
I would also say that if counsel was truly confused, they could have moved for a more definite statement that dismissal with prejudice was perhaps overreaching in terms of the remedy for this.

[00:34:49] Speaker 04:
And lastly, as to the suggestion that they could not answer this complaint,

[00:34:53] Speaker 04:
Rule 8 does allow defendants to answer within their knowledge and deny knowledge as to the rest.

[00:34:58] Speaker 04:
So if one paragraph arguably refers to multiple defendants, defendant Campbell could answer as to himself and deny knowledge as to any of the other MTC defendants if that was in fact true.

[00:35:09] Speaker 04:
So answering the complaint in its form is possible.

[00:35:12] Speaker 04:
Amending the complaint would also address the concerns without the draconian remedy of dismissal with prejudice.

[00:35:17] Speaker 02:
All right, so to get back to my question then, if we don't give you exactly what you want, you still would like another chance to go back before the district court and have a third amendment complaint.

[00:35:27] Speaker 02:
Is that correct?

[00:35:28] Speaker 04:
I don't think it's necessary, but yes, of course, we would like that opportunity.

[00:35:34] Speaker 02:
Let's say that's what I think should happen in this case, if anything.

[00:35:36] Speaker 02:
I assume you would like that lifeboat rather than no lifeboat.

[00:35:40] Speaker 02:
Absolutely.

[00:35:40] Speaker 02:
OK.

[00:35:43] Speaker 03:
All right.

[00:35:43] Speaker 03:
Thank you, Your Honor.

[00:35:44] Speaker 03:
Thank you, Ms.

[00:35:46] Speaker 03:
Ix and Mr. Zarian.

[00:35:48] Speaker 03:
I appreciate and we all appreciate the oral argument presentations here today.

[00:35:53] Speaker 03:
The case of Kay Lynn Dana versus Idaho Department of Corrections is now submitted.

[00:36:00] Speaker 03:
And that concludes our docket for today.

[00:36:04] Speaker 03:
So we will be adjourned.

[00:36:05] Speaker 03:
Thank you very much.