[00:00:08] Speaker 02:
Good morning.

[00:00:09] Speaker 02:
Welcome to the Ninth Circuit in this different environment.

[00:00:13] Speaker 02:
I've got to see if I can get this to scoot up a little bit.

[00:00:20] Speaker 03:
How do I get this thing to go up?

[00:00:35] Speaker 02:
Otherwise, I'm a kindergarten.

[00:00:37] Speaker 02:
Anyway, we are delighted to be here at the law school.

[00:00:42] Speaker 02:
Hope this will be of some benefit to the law students and those who are otherwise interested.

[00:00:47] Speaker 02:
We have some matters to submit first before we hear oral argument in some cases.

[00:00:53] Speaker 02:
The first cases that are submitted are Velasquez Reyes versus Garland, Hurst versus Dear,

[00:01:02] Speaker 02:
Chen versus Garland, and that's it.

[00:01:06] Speaker 02:
Now before we hear our first case, I want to go over some logistics.

[00:01:11] Speaker 02:
When we get done with the arguments, the court will recess to conference, and our law clerks, who are basically all over here, will be available to answer questions for interested law students or members of the audience.

[00:01:26] Speaker 02:
And then the judges will come back and try to answer a few questions as well.

[00:01:29] Speaker 02:
So hopefully that will be informative to you.

[00:01:32] Speaker 02:
So the first case for argument today is Watanabe versus Deer.

[00:01:38] Speaker 02:
So counsel, please proceed.

[00:01:46] Speaker 00:
Good morning, your honors, and may it please the court.

[00:01:49] Speaker 00:
Dee Dangaran, they, them pronouns for the appellant.

[00:01:52] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:01:54] Speaker 02:
Keep your eye on the clock.

[00:01:55] Speaker 02:
We'll try to help you.

[00:01:56] Speaker 00:
There are two issues on appeal.

[00:01:58] Speaker 00:
First, the district court erred by finding Mr. Watanabe's claim arose in a new Bivens context.

[00:02:04] Speaker 00:
The district court and the defendants have conflated a Bivens claim with a Bivens cause of action.

[00:02:10] Speaker 00:
Mr. Watanabe's medical delivered indifference claim fits squarely within the implied cause of action under the Eighth Amendment recognized by the Supreme Court in Carlson v. Green.

[00:02:23] Speaker 02:
And you cite Chambers versus Herrera, McGay versus Dickron, and Gillespie versus Sibeletti as cases that you believe are helpful to you.

[00:02:34] Speaker 02:
I thought they were easily distinguishable.

[00:02:37] Speaker 02:
Can you tell the court what case you believe is the closest case that you can cite that follows the, if you will, the experience that your client had?

[00:02:49] Speaker 00:
Well, Your Honor, as to the cause of action, all of those cases fit within it.

[00:02:54] Speaker 00:
None extend the cause of action.

[00:02:57] Speaker 00:
As to the merits, there are specific cases that might fit the facts, but I think the quintessential point I want to leave this court with is that the cause of action is defined in Egbert v. Booley as something broader than any of the individual facts would render differences.

[00:03:11] Speaker 02:
Court agree with you about that?

[00:03:13] Speaker 02:
They've been very stingy about extending Bivens beyond the context of the three cases of which you're very familiar.

[00:03:19] Speaker 00:
Egbert versus Bully found that the context is the failure to provide proper medical attention.

[00:03:25] Speaker 00:
That's a direct quote.

[00:03:26] Speaker 00:
And Hernandez versus Mesa and Ziegler versus Abbasi used the same language.

[00:03:31] Speaker 00:
It was the failure to provide adequate medical treatment.

[00:03:35] Speaker 00:
That itself is the context for the Bivens' cause of action.

[00:03:38] Speaker 02:
In fact, counsel, each of those, I believe, involved

[00:03:41] Speaker 02:
someone who did treat them and in a way that was considered inadequate.

[00:03:45] Speaker 02:
Your client wanted to be treated by somebody else.

[00:03:48] Speaker 02:
He was actually seen by someone at the prison who looked him over, thought everything was fine, but he didn't neglect him.

[00:03:57] Speaker 02:
He just didn't send him out of the facility.

[00:04:00] Speaker 02:
Isn't that a distinguishable fact that's important in our analysis?

[00:04:03] Speaker 00:
No, Your Honor, and standard versus die decided very recently by this court shows exactly why that is not a distinguishable factor.

[00:04:11] Speaker 00:
The severity of the mistreatment, which is exactly what Your Honor's question goes to, is for the merits claim, not for this antecedent question whether there is a Bivens cause of action under Carlson.

[00:04:24] Speaker 05:
It was unclear that Nurse Nielsen was aware of the broken bone.

[00:04:30] Speaker 05:
It almost seems like perhaps even Mr. Watanabe may not have been aware.

[00:04:34] Speaker 05:
He was aware of the pain, but may have not been aware that his bone was broken.

[00:04:39] Speaker 00:
So, Your Honor, this question also goes to the merits, because the subjective, deliberate indifference is a part of the Eighth Amendment's merits inquiry.

[00:04:46] Speaker 00:
And to the point of the plausibility of that claim, the District Court actually found that there was a marital, colorable claim here.

[00:04:54] Speaker 00:
So what's fascinating about this case is that the District Court made a decision on the merits as to Nurse Nielsen in the screening orders, reaffirmed in the second screening order, and yet brought those merits inquiries into the Bivens

[00:05:08] Speaker 00:
antecedent question, the Bivens liability question, and that was legal error, because the questions are distinct.

[00:05:14] Speaker 00:
There are many ways that a Bivens cause of action gets you in the door, but then other things can kick you out, and that includes qualified immunity, failure to meet the serious medical need test, failure to show subjective deliberate indifference, or failure to show a physical harm or physical injury that would yield damages.

[00:05:32] Speaker 03:
For me, you have to convince

[00:05:34] Speaker 03:
the court, or at least me, part of this panel, is why your case is not meaningfully different than Carlson.

[00:05:49] Speaker 00:
Exactly, Your Honor.

[00:05:50] Speaker 00:
We agree that that is the inquiry.

[00:05:51] Speaker 03:
For me, that's the only question.

[00:05:54] Speaker 03:
Why is it not, you know, because if it's quote unquote meaningfully different from Carlson, then you're out of luck.

[00:06:04] Speaker 00:
Yes, and we concede, actually, that if we reach step two, the claim loses, and Marquez makes that very clear.

[00:06:10] Speaker 03:
Why does this fit within, clearly, or just nicely fit within the parameters of Carlson?

[00:06:22] Speaker 00:
So again, I point the court to standard versus die, in which this court held that quote, a damages remedy for failure to provide.

[00:06:29] Speaker 03:
I want you to tell me on the circumstances of the case compared to Carlson.

[00:06:35] Speaker 00:
Yes.

[00:06:36] Speaker 00:
Yes, Your Honor.

[00:06:36] Speaker 03:
But not the remedy that you're seeking.

[00:06:39] Speaker 00:
I understand your question, Your Honor.

[00:06:40] Speaker 00:
The comparison to Stannard is helpful, because it found that there was a replay of Carlson.

[00:06:47] Speaker 00:
Stannard found a replay of Carlson along every dimension the Supreme Court has identified as relevant to the inquiry.

[00:06:54] Speaker 00:
Those relevant factors are listed in Ziegler versus Abbasi.

[00:06:57] Speaker 05:
And looking squarely- The petitioner suffered from a chronic and serious medical condition, and it wasn't a discrete injury from a prison assault.

[00:07:06] Speaker 05:
So why wouldn't this be a different case?

[00:07:09] Speaker 00:
That would go to the merits.

[00:07:11] Speaker 03:
I see, when you keep referring to the merits, I don't quite understand where you're coming from with that.

[00:07:19] Speaker 00:
So there's an Eighth Amendment claim that must be proven, and that was exactly what the district court did as to Dr. Kwan.

[00:07:26] Speaker 00:
It found that on the merits of the claim against Dr. Kwan, the delay was not established, nor was subjective deliberate indifference established, that he was the actor that did the harm.

[00:07:34] Speaker 00:
As to Dr. Nielsen, the district court found, and I can give you the record site, that the claim was plausible.

[00:07:41] Speaker 00:
So the chronic condition goes to the severity of the mistreatment, because the severity of the mistreatment, and that's what Standard found, is not a factor that is a meaningful difference.

[00:07:51] Speaker 00:
The severity of the mistreatment would include the type of chronic condition or other type of condition that is at issue.

[00:07:59] Speaker 02:
So you seem to be saying, counsel, that the Carlson rubric is met if someone comes, complains of a condition, and regardless of whether the person is treated or not, unless they guess the condition properly, you've got a Bivens claim.

[00:08:17] Speaker 02:
Is that your position?

[00:08:19] Speaker 00:
I don't know what your honor means by guess the condition properly.

[00:08:21] Speaker 02:
Well, what I mean is positions are kind of like lawyers.

[00:08:24] Speaker 02:
We don't know everything.

[00:08:25] Speaker 02:
They do their best to determine.

[00:08:28] Speaker 02:
What's wrong?

[00:08:30] Speaker 02:
In this case, you've got the nurse who thought that's what had happened.

[00:08:34] Speaker 02:
Didn't know the coccyx issue.

[00:08:36] Speaker 02:
Neither did Mr. Watanabe.

[00:08:39] Speaker 02:
But you treated him.

[00:08:40] Speaker 02:
Gave him some things and told him to go differently.

[00:08:43] Speaker 02:
Now later on, he came back, then he was referred out.

[00:08:46] Speaker 02:
But it seems like if we accept your approach, basically every time a prisoner in this case,

[00:08:54] Speaker 02:
comes to a medical, makes a medical claim, unless the medical person properly diagnoses it and solves the problem, you got a Bivens claim.

[00:09:05] Speaker 02:
Isn't that what you're saying?

[00:09:06] Speaker 00:
You have a Bivens cause of action.

[00:09:09] Speaker 02:
So... Forgive me, that's sophistry.

[00:09:11] Speaker 02:
I mean, cause of action, marriage, whatever.

[00:09:14] Speaker 02:
The bottom line is, is there a claim?

[00:09:16] Speaker 02:
I call it a cause of action, but the reality is what the remedy is may be different.

[00:09:22] Speaker 02:
Do you have a Bivens claim if you just come in and say, you know, I really feel bad.

[00:09:27] Speaker 02:
I got a really bad headache.

[00:09:29] Speaker 02:
Turns out that, you know, they have a long standing aneurysm in the brain and they don't diagnose it.

[00:09:35] Speaker 02:
Do they have a Bivens claim?

[00:09:37] Speaker 00:
Your Honor, they definitely have a cause of action and they may have a Bivens claim.

[00:09:40] Speaker 02:
Okay.

[00:09:41] Speaker 02:
What's the difference between a cause of action and a Bivens claim from your perspective?

[00:09:45] Speaker 00:
A cause of action provides liability.

[00:09:48] Speaker 00:
A viable defense claim requires you to survive qualified immunity and establish deliberate indifference.

[00:09:56] Speaker 03:
We're not in the realm of qualified immunity.

[00:09:59] Speaker 00:
That was actually raised as one of the defenses by the defendants.

[00:10:02] Speaker 03:
It doesn't make any difference what they raised as a defense.

[00:10:06] Speaker 03:
Qualified immunity applies in the context of a state 1983 cause of action.

[00:10:11] Speaker 03:
We're in the world of federal.

[00:10:12] Speaker 03:
This claim is brought directly under the federal constitution because you have a federal officer, right?

[00:10:20] Speaker 00:
Yes, Your Honor.

[00:10:22] Speaker 00:
Section 1983 is a helpful analog to making this point.

[00:10:25] Speaker 00:
Section 1983 provides liability for many things, but the claim itself does not survive if it's dismissed for any reason.

[00:10:32] Speaker 03:
The claim at base here is a violation of the Eighth Amendment.

[00:10:36] Speaker 00:
Precisely.

[00:10:37] Speaker 03:
And the question is, like in 1983, can you maintain a suit against this individual federal officials here?

[00:10:49] Speaker 03:
the federal government, the Congress has not provided a similar 1983 cause of action for suing directly under the Constitution a suit against these officials.

[00:11:02] Speaker 03:
So Bivens is all about creating a direct cause of action under the

[00:11:07] Speaker 03:
under the Constitution.

[00:11:10] Speaker 03:
And the question here is, as Judge Smith said earlier, is that the Supreme Court does not look favorably upon these causes of action, these claims.

[00:11:21] Speaker 03:
And so they have said, well, we set the rule in Bivens, and we've extended it in three areas, one of which is Carlson, which poses a factual similarity to your case.

[00:11:33] Speaker 03:
And so my question for you is, what is your argument that this case falls within the parameters of Carlson?

[00:11:47] Speaker 03:
Forget about causes of action and all that.

[00:11:51] Speaker 03:
Just why does the circumstances of your case fall within the parameters of

[00:11:56] Speaker 00:
The Abbasi factors guide the inquiry.

[00:11:58] Speaker 00:
The rank of the defendants are the same.

[00:12:00] Speaker 00:
The nurse Nielsen and the medical training assistant in Carlson were at the same level.

[00:12:03] Speaker 00:
Second, Chambers versus C. Herrera has already found that the constitutional right at issue is the same for the Eighth Amendment medical deliberate indifference claims, and there it was a broken arm, not a chronic condition.

[00:12:14] Speaker 00:
The specificity of the official action is perhaps where your honors are finding some difficulty.

[00:12:19] Speaker 00:
We have argued, and we put forward, that the correct view of the specificity of the official action is the failure to provide proper medical attention, and that is, again, language directly from Egbert, the most recent case in which it denied an extension.

[00:12:35] Speaker 00:
This is not a step two case.

[00:12:36] Speaker 00:
Egbert was.

[00:12:37] Speaker 02:
Maybe we need to get to the second part, what you call the merits, and one of the elements, of course,

[00:12:43] Speaker 02:
when they created Carlson looked at is whether Congress has provided alternative means to satisfy the problem.

[00:12:50] Speaker 02:
Here you got extensive prison regulations, all kinds of administrative law to provide Mr. Watanabe for what he's looking for.

[00:12:58] Speaker 02:
Why does Bivens apply, you're assuming using your term, a cause of action exists because you say there's no different context than Carlson.

[00:13:06] Speaker 02:
Why should this extend to this situation?

[00:13:10] Speaker 00:
So there's no extension, Your Honor.

[00:13:12] Speaker 00:
The alternative remedies and alternative remedial schemes is actually a part of the step two inquiry.

[00:13:18] Speaker 00:
Marquez makes that very clear.

[00:13:20] Speaker 00:
It's actually not even a part of the merits inquiry per se.

[00:13:22] Speaker 00:
It's a part of the step two inquiry whether we should extend.

[00:13:25] Speaker 02:
How does it pass step two in this case?

[00:13:28] Speaker 00:
Biven step two is not an issue, and we're not trying to argue this passes at step two.

[00:13:33] Speaker 00:
I have conceded that it dies at step two, but it survives on step one.

[00:13:36] Speaker 00:
To finish that reasoning, Carlson and this case included both inadequate on-site treatment and failure to bring the plaintiff to the hospital.

[00:13:48] Speaker 00:
The specificity of the official action was entirely the same.

[00:13:52] Speaker 02:
So basically the fact that the nurse didn't properly diagnose it, because she didn't care.

[00:13:58] Speaker 02:
She didn't know what an extensive injury it was, but it seems like this would open a sesame for every prisoner's claim of any type if the remedy was not immediately properly diagnosed.

[00:14:13] Speaker 02:
I don't think that's what the court meant by its limitation of evidence, is it?

[00:14:18] Speaker 00:
Your Honor, the rest of the screening orders capabilities handle that, because the Bivens cause of action is to not extend anything besides these cases.

[00:14:27] Speaker 00:
Carlson's case has been reestablished, reaffirmed by the Supreme Court numerous times, as recently as Egbert, as one that is broader than Your Honor is trying to define it.

[00:14:37] Speaker 00:
I know I'm into my rebuttal time, Your Honors.

[00:14:39] Speaker 05:
If you're conceding that your claim dies at step two,

[00:14:43] Speaker 05:
then the Ziegler factors that you consider for step one do include the same special factors that you consider for step two.

[00:14:51] Speaker 05:
So then why haven't you conceded that it's a new context?

[00:14:55] Speaker 00:
Your Honor, if you're discussing the special factor, the- The presence of potential special factors that previous Bivens cases do consider.

[00:15:02] Speaker 05:
Yes.

[00:15:02] Speaker 05:
Doesn't that encapsulate some of step two?

[00:15:05] Speaker 00:
So no, Egbert, which came after Ziegler, replaced that.

[00:15:11] Speaker 00:
The administrative remedy program should belong to step two.

[00:15:15] Speaker 00:
Egbert made that clear.

[00:15:16] Speaker 00:
And so to the extent that Ziegler includes that in its special factors, then Egbert corrected that error.

[00:15:23] Speaker 00:
The PLRA was passed 15 years after Carlson and Congress did not overturn it.

[00:15:29] Speaker 00:
The guiding step two inquiry, which is perhaps a part of what's in the special factors language of that

[00:15:35] Speaker 00:
discussion in Ziegler is resolved for Carlson.

[00:15:39] Speaker 00:
There's no risk of disruptive intrusion into the legislative function because Carlson was already decided and the PLRA could have overturned it.

[00:15:47] Speaker 00:
And the defendants name some other potential special factors and it goes to what you were asking Judge Koh, the nature and severity of the mistreatment as well as the existence of the ARP.

[00:15:57] Speaker 05:
all of those factual distinctions go to the merits.

[00:15:59] Speaker 05:
But you would agree that the Ziegler factors, like you just said, specificity of the officer's conduct, the constitutional right at issue, they require us to consider these factual questions at step one, right?

[00:16:11] Speaker 05:
Because in order to determine what's the constitutional right at issue, we have to know what was the injury, what was the alleged delay or denial of medical treatment.

[00:16:18] Speaker 05:
So we do have to look at what you're calling, quote unquote, the merits, right?

[00:16:22] Speaker 05:
To determine whether there's a new

[00:16:24] Speaker 00:
Well, Your Honor, the step one Ziegler factors were specific.

[00:16:29] Speaker 00:
And so, Standard has currently decided that severity has no bearing on the threshold cause of action.

[00:16:37] Speaker 00:
Standard decided that

[00:16:39] Speaker 00:
To the extent that special factors can be something else that's factual, it is not the severity of the mistreatment alleged in a Carlson claim.

[00:16:47] Speaker 00:
The Bivens cases are three very different contexts, and a lot of the case law that we have is in the excessive force context.

[00:16:55] Speaker 00:
The Carlson context is very clear.

[00:16:56] Speaker 00:
You're talking about the world of medical deliberate indifference claims.

[00:16:59] Speaker 00:
Recently, this court has narrowed it away from failure to protect claims, so it's not all Eighth Amendment claims.

[00:17:04] Speaker 00:
But it is clearly a medical deliberate indifference claim.

[00:17:06] Speaker 00:
And this is the same type of claim in that regard.

[00:17:10] Speaker 00:
So the Bivens cause of action for a new context of that essential claim is what we're discussing.

[00:17:15] Speaker 00:
You would collapse the step one and step two, sorry, the cause of action antecedent question and the merits question if you brought everything regarding the steps of the deliberate indifference into step one.

[00:17:26] Speaker 00:
And that is not what this court has required or what the Supreme Court has required in its discussion of Carlson claims and what a Carlson claim is.

[00:17:33] Speaker 02:
As you know, you're overtime.

[00:17:35] Speaker 02:
It's our fault, if you will.

[00:17:36] Speaker 02:
We're going to give a little extra time for rebuttal.

[00:17:39] Speaker 02:
But one of the things I would like you to be able to answer, or maybe just tell us very quickly, has Mr. Watanabe now received the medical care that he sought?

[00:17:47] Speaker 00:
I spoke with him last in February, 2024, and he has not received it, Your Honor.

[00:17:52] Speaker 02:
He has not received it.

[00:17:52] Speaker 02:
Did he say why?

[00:17:53] Speaker 00:
He has not seen the specialist.

[00:17:55] Speaker 00:
So after that decision by Dr. Kwan, I believe, is what he's alleged.

[00:18:00] Speaker 02:
So you're still seeking an injunctive claim.

[00:18:02] Speaker 00:
Yes, Your Honor.

[00:18:03] Speaker 02:
All right.

[00:18:03] Speaker 02:
Let's hear from government.

[00:18:24] Speaker 01:
May it please the court?

[00:18:26] Speaker 01:
Good morning.

[00:18:26] Speaker 01:
Your Honor asked for the best cases that distinguish this situation with Mr. Watanabe and Carlson, and what makes this different from Carlson.

[00:18:40] Speaker 01:
Meaningfully.

[00:18:41] Speaker 01:
Meaningfully different.

[00:18:42] Speaker 01:
There's a difference.

[00:18:43] Speaker 01:
Absolutely, Your Honor.

[00:18:44] Speaker 01:
And the first case, the first way to distinguish the meaningful difference is Carlson, in footnote one, addressed the serious medical condition and addressed the serious asthmatic condition that led to death.

[00:18:59] Speaker 01:
The discussion previously with my friend was about a medical condition.

[00:19:03] Speaker 01:
The discussion did not center around whether it was serious.

[00:19:07] Speaker 02:
In chamber- You think Carlson itself

[00:19:11] Speaker 02:
requires that the condition be serious in order to fall within the context of that case.

[00:19:18] Speaker 01:
Exactly, Your Honor.

[00:19:19] Speaker 05:
But what says that a shattered Cossacks is not a serious injury?

[00:19:23] Speaker 05:
And if he's never been really treated, we really don't know the full extent of his injury.

[00:19:27] Speaker 01:
Yes, Your Honor, and the district court appropriately looked at the severity of the injury and the district court cited to a Ninth Circuit case, Martinez, which upheld the rulings by the magistrate and the district court in that case.

[00:19:44] Speaker 01:
And in there, the allegations were actually quite similar, and the court agreed that it did not rise to the level of severity that would implicate Bivens.

[00:19:56] Speaker 05:
But the district court has made this decision on an incomplete record, right?

[00:20:00] Speaker 05:
Because this was motion to dismiss.

[00:20:01] Speaker 05:
There wasn't discovery.

[00:20:02] Speaker 05:
And if he hasn't been seen, Mr. Watanabe hasn't been seen by specialists, we don't really know the full extent of his injuries.

[00:20:07] Speaker 01:
Not necessarily, Your Honor.

[00:20:09] Speaker 01:
On a 12b6, it was based on the allegations in the complaint.

[00:20:13] Speaker 01:
And the district court looked at what the plaintiff pled.

[00:20:16] Speaker 01:
What the plaintiff pled was that he presented to the nurse with a backache and a headache, and was provided over-the-counter medication, and was eventually diagnosed as having a fractured coccyx.

[00:20:29] Speaker 03:
So in Carlson, the prisoner passed away.

[00:20:35] Speaker 03:
So you're not suggesting it has to be so serious that it might lead to death, are you?

[00:20:39] Speaker 03:
No, I'm not, Your Honor.

[00:20:40] Speaker 03:
So how can you characterize this as not a serious medical condition, break your tailbone?

[00:20:49] Speaker 01:
Well, Your Honor, the district court looked at that.

[00:20:52] Speaker 03:
Why don't we just look at the nature of the claims

[00:20:58] Speaker 03:
seems to me to be the same.

[00:21:01] Speaker 01:
So the nature is both the nature and the severity the district court looked at.

[00:21:05] Speaker 03:
Let's just talk about the nature of the claim.

[00:21:06] Speaker 03:
This seems to be the same as in Carlson.

[00:21:09] Speaker 01:
Absolutely, Your Honor.

[00:21:10] Speaker 03:
And as Egbert pointed- I don't want to hear the government say that you can only press this claim if you're long gone from this world.

[00:21:18] Speaker 01:
Oh, no.

[00:21:19] Speaker 01:
And that's not the government's position, Your Honor.

[00:21:24] Speaker 01:
As I believe it was Judge Smith pointed out, there is a difference between appearing and requesting treatment and maybe not getting it as quickly as desired or the treatment immediately or the diagnosis immediately and presenting with a known condition.

[00:21:40] Speaker 01:
In both Carlson and Stenard, the inmate

[00:21:45] Speaker 01:
already was diagnosed with something, asthma or hepatitis C in the second case, and there is a way of treating it.

[00:21:53] Speaker 01:
And in both cases, or excuse me, in Carlson, the government ignored the standard treatment and provided a broken machine and then did a contraindicated injection that eventually led to death.

[00:22:09] Speaker 01:
That didn't happen here.

[00:22:10] Speaker 01:
He presented with a backache and a headache.

[00:22:15] Speaker 01:
He was given over-the-counter pain medications.

[00:22:19] Speaker 01:
He was given stretches to show him how to exercise.

[00:22:23] Speaker 01:
He was ordered an injection.

[00:22:26] Speaker 01:
He was ordered a different kind of pain medication, which shows he had the availability of an alternative remedy.

[00:22:37] Speaker 01:
Yes, Your Honor, and to Judge Coe's question about this.

[00:22:41] Speaker 05:
In jet, a broken thumb was not a new context.

[00:22:45] Speaker 05:
In chambers, a broken arm was not a new context.

[00:22:47] Speaker 05:
So clearly, we haven't, as a court, previously required that it has to be this chronic, serious condition, right?

[00:22:54] Speaker 05:
We are saying broken bones are not a new context.

[00:22:59] Speaker 01:
Correct.

[00:23:00] Speaker 01:
So in chambers, the Ninth Circuit evaluated considering the new Egbert framework, which I would argue does not replace the prior framework in sort of eliminating the special factors discussion in two places, but instead streamlines it, noticing that there are special factors listed in a BASI.

[00:23:24] Speaker 01:
and noticing also that there's a separate special factors test.

[00:23:28] Speaker 01:
So the question is really,

[00:23:31] Speaker 01:
Is it in the best interest for a judiciary or Congress to look at the question?

[00:23:36] Speaker 02:
And in the special factors... Even with what we've got now, though, we've talked a little bit about the effect of the Ziegler analysis.

[00:23:45] Speaker 02:
What I think I'm hearing you say from the government's perspective is, hey, at this point, we're governed by the pleadings.

[00:23:52] Speaker 02:
12b6, what he alleged, whether he had a headache and a backache.

[00:23:56] Speaker 02:
He did not come in alleging he had a broken bone.

[00:23:58] Speaker 02:
He did not come in alleging the other things that showed up in some of these other cases.

[00:24:02] Speaker 02:
And at this point, that's what we go with.

[00:24:05] Speaker 02:
Is that right?

[00:24:06] Speaker 01:
Exactly.

[00:24:07] Speaker 03:
And that's what... How could he know that he had a broken tailbone?

[00:24:10] Speaker 01:
Well, he couldn't.

[00:24:11] Speaker 01:
He had an x-ray.

[00:24:12] Speaker 01:
Which he eventually got.

[00:24:15] Speaker 01:
And this leads us to another question of, is this court going to be, or are we looking at a straightforward medical negligence, medical malpractice case, where the standard is negligence.

[00:24:28] Speaker 01:
And if that's the case, we have the FTCA.

[00:24:30] Speaker 01:
But the way he was able to get the x-ray was he followed the Bureau of Prisons administrative remedy program.

[00:24:38] Speaker 01:
He submitted the BP forms, which led to him getting- How long did that take?

[00:24:44] Speaker 01:
A few months, I think, Your Honor.

[00:24:45] Speaker 01:
I don't think he specifies, but it was a few.

[00:24:50] Speaker 01:
And he had pain medication?

[00:24:54] Speaker 01:
Yeah, yes.

[00:24:55] Speaker 01:
And does this rise?

[00:24:59] Speaker 01:
It's not that nobody cares.

[00:25:01] Speaker 01:
It's that, does this rise to the level of severity to trigger the policy?

[00:25:08] Speaker 03:
It's a matter of what you're saying on 12-E-6.

[00:25:13] Speaker 03:
As a matter of law, these allegations do not state the cause of action.

[00:25:21] Speaker 05:
Yes, Your Honor.

[00:25:33] Speaker 05:
could qualify as something falling within the same as Carlson and not creating a new context or being a new context.

[00:25:40] Speaker 05:
You would concede that.

[00:25:41] Speaker 01:
Yes, depending on the allegations as pled, depending on the severity of where the bone is in.

[00:25:47] Speaker 05:
These allegations as pled talk all about the fractured cossacks.

[00:25:51] Speaker 05:
I'm looking at page 5A, I'm looking at page 6.

[00:25:53] Speaker 01:
And that takes me back to the Chamber's decision.

[00:25:57] Speaker 01:
There, the Ninth Circuit was presented with a case where the inmate presented with a broken wrist or a broken, I believe it was a wrist or arm.

[00:26:10] Speaker 01:
And the Ninth Circuit said, based on the pleadings, it wasn't sufficient, the pleadings were not sufficient to determine whether

[00:26:23] Speaker 01:
whether it rose to the level of seriousness, but it rejected the argument that just because it was a medical indifference claim pled under the Eighth Amendment, it was automatically viable.

[00:26:34] Speaker 01:
Instead, it concluded that it was insufficient to make that determination.

[00:26:38] Speaker 01:
It did not foreclose that analysis.

[00:26:40] Speaker 01:
And in there, the district court had previously dismissed it with leave to amend, but the plaintiff chose to pursue appeal instead of amending.

[00:26:49] Speaker 01:
So the Ninth Circuit ordered remand for the district court to flesh that out.

[00:26:54] Speaker 01:
And it said that in the remand order, chambers held that

[00:26:58] Speaker 01:
A claim would be the same constitutional right as in Carlson, but the other Egbert factors would need to be addressed to determine whether this claim arises in a different context.

[00:27:14] Speaker 05:
with further factual development present a case arising in the same context as Carlson?

[00:27:19] Speaker 05:
And he's remanded for that further factual development?

[00:27:21] Speaker 05:
Why would that be the case here?

[00:27:22] Speaker 05:
Why couldn't we do that here and say the fact that he presented with these pain complaints and he wasn't x-rayed and the broken cossacks wasn't diagnosed until part later, why couldn't we say without, with further factual development, this may also present a case arising in the same context as Carlson?

[00:27:39] Speaker 01:
Well, I think in that case, Your Honor, the pleading lacked any of that information at all.

[00:27:47] Speaker 01:
And so on remand, the district court allowed the plaintiff to amend the complaint.

[00:27:51] Speaker 01:
And in that case, the plaintiff didn't.

[00:27:53] Speaker 01:
So we don't have a final order of conclusion.

[00:27:56] Speaker 01:
But in this case, the district court looked at what was pled.

[00:27:59] Speaker 01:
And the district court concluded that it was sufficient.

[00:28:01] Speaker 01:
There was enough facts for the district court to consider the nature and the severity.

[00:28:08] Speaker 01:
been some discussion about the Abbasi factors and where the nature and severity fit into the Abbasi factors.

[00:28:15] Speaker 01:
And I would just like to point out that despite my friend's representation, that was not an exhaustive, absolute, strict list that Abbasi pointed out.

[00:28:25] Speaker 01:
Abbasi, Hernandez, and Egbert all pointed out that it was a non-exhaustive list, and that context is meant to be read broadly.

[00:28:32] Speaker 02:
It sounds like even the government's saying that this is

[00:28:36] Speaker 02:
really all very amorphous.

[00:28:40] Speaker 02:
What I look at is the, you know, the whole Bivens thing came along at a different time, certainly a different Supreme Court.

[00:28:47] Speaker 02:
And they thought there's terrible facts to what the FBI did in that case, et cetera.

[00:28:53] Speaker 02:
But now they're just saying, no, no, no, no.

[00:28:55] Speaker 02:
We're not doing it anymore.

[00:28:56] Speaker 02:
We got it very, very limited.

[00:28:58] Speaker 02:
We've got some cases that, at least from my perspective, are quite inconsistent.

[00:29:03] Speaker 02:
But I'd be interested in the government's perspective

[00:29:06] Speaker 02:
What do you think that this court should do?

[00:29:09] Speaker 02:
If you were writing an opinion dealing with the facts of this case, you've got a person who comes in with pain, said he has a backache, headache.

[00:29:21] Speaker 02:
The nurse treated him as she understood the problem to be at the time.

[00:29:25] Speaker 02:
She didn't know he had a broken tailbone.

[00:29:27] Speaker 02:
He didn't know he had a broken tailbone.

[00:29:29] Speaker 02:
As he went on, the amount of treatment increased based upon his complaints.

[00:29:34] Speaker 02:
Ultimately, he didn't get referred out.

[00:29:36] Speaker 02:
if I understand correctly.

[00:29:38] Speaker 02:
So what are we doing with this?

[00:29:40] Speaker 02:
How do we make it work?

[00:29:42] Speaker 02:
Clearly we can't have a carte blanche every time anybody in prison

[00:29:46] Speaker 02:
as a medical problem, they can sue under Bivens if they don't get what ultimately turns out to be the correct medical diagnosis, do we?

[00:29:55] Speaker 01:
No, Your Honor.

[00:29:56] Speaker 01:
I think the Court can very clearly and easily affirm the District Court's opinion.

[00:30:00] Speaker 01:
The District Court's opinion was very well reasoned.

[00:30:03] Speaker 01:
It went through the two-step

[00:30:06] Speaker 01:
process of first, is there a new context?

[00:30:10] Speaker 01:
And second, are there special factors?

[00:30:12] Speaker 01:
The district court appropriately noted that Egbert consolidated the special factors consideration.

[00:30:19] Speaker 01:
And it's really what the cases hold and what we're looking at is who is better equipped, Congress or the judiciary in carving out the remedy and setting forth the remedy.

[00:30:30] Speaker 01:
And here, Congress has clearly spoken.

[00:30:33] Speaker 01:
Congress has set forth the Prison Litigation Reform Act.

[00:30:37] Speaker 01:
Instead of expanding 1983 to allow for a private right of action against individuals acting in their individual capacity, the Congress has elected to not issue any sort of separate remedy.

[00:30:52] Speaker 01:
But it has provided alternative remedies for an inmate.

[00:30:57] Speaker 02:
An inmate- Even if we were to find that this fits in the broader context of Carlson.

[00:31:03] Speaker 02:
that when you look at the later cases, plus the enactment of the Prison Litigation Reform Act and so on, Congress has made it very clear that this is not going to be expanded.

[00:31:12] Speaker 02:
They don't want courts to enact or adopt policies that allow any prisoner as a claim that's not properly diagnosed right away to have a vivid claim.

[00:31:24] Speaker 02:
Is that right?

[00:31:24] Speaker 01:
Exactly.

[00:31:25] Speaker 01:
Exactly, Your Honor.

[00:31:27] Speaker 01:
I have about two minutes left.

[00:31:29] Speaker 01:
Would the court like me to turn to the injunctive relief argument?

[00:31:33] Speaker 01:
First, I would like to point out that in plaintiff's initial complaint, the request for injunctive relief was not for medical indifference.

[00:31:45] Speaker 01:
The request for injunctive relief was specifically about the failure to protect and the threat to safety claim.

[00:31:53] Speaker 01:
He asked the court to issue an order requiring

[00:31:57] Speaker 01:
The defendant to follow US law regarding the housing of federal inmates based on gang affiliation and determine security levels.

[00:32:06] Speaker 01:
That argument has since shifted and is now about medical indifference, but the district court correctly dismissed that injunctive relief claim.

[00:32:16] Speaker 01:
To the extent that it was a Bivens claim, that is very clear, you cannot have injunctive relief under Bivens.

[00:32:21] Speaker 01:
To the extent that it's just a straightforward 1331 claim, the court appropriately screened that as to whether he plausibly pled a failure to protect claim, reading it in the light most favorable to the plaintiff and considering it liberally under the pro se standard.

[00:32:42] Speaker 02:
So you don't think we should send that part back to the district court to allow an amendment?

[00:32:46] Speaker 01:
No, Your Honor.

[00:32:47] Speaker 01:
The district court allowed amendment twice, provided a very clear roadmap on what allegations needed to be pled to plead a plausible claim for failure to protect, and plaintiff didn't do so.

[00:33:04] Speaker 02:
Other questions by my colleague?

[00:33:06] Speaker 02:
No.

[00:33:06] Speaker 01:
Thank you very much.

[00:33:07] Speaker 02:
All right, we'll give you a couple of minutes of rebuttal time, Counsel.

[00:33:11] Speaker 00:
Thank you, Your Honor.

[00:33:12] Speaker 00:
Just on that last point first, the district court never allowed amendment on the injunctive relief claim.

[00:33:19] Speaker 00:
That's a misstatement of the record by my friend on the other side.

[00:33:21] Speaker 00:
It was dismissed with prejudice right away, with no opportunity to cure the defect.

[00:33:28] Speaker 00:
And that goes against the liberal pleading standards for a pro se litigant under this court's law in Lucas versus DOC.

[00:33:35] Speaker 02:
At least as to the injunctive relief, we need to send it back to district court to allow an amendment and deal with the injunctive relief

[00:33:42] Speaker 05:
Yes, Your Honor.

[00:34:03] Speaker 00:
Nevertheless, Your Honor, the district court found in the rest of the allegations in the complaint a request for injunctive relief for medical deliberate indifference as shown in the district court's footnote five, which described the steps to be taken to evaluate an injunctive relief claim.

[00:34:17] Speaker 05:
So you're requesting leave to amend on both, the gang affiliation, housing?

[00:34:24] Speaker 00:
So the complaint as an entire document includes some facts that go to the medical deliberate indifference claim in count one.

[00:34:32] Speaker 00:
And so our client in his pro se pleading did include some allegations that went to this specific question.

[00:34:38] Speaker 00:
We are only raising an appeal for the second for the medical deliberate indifference injunctive relief claim.

[00:34:45] Speaker 00:
It is not a part of what we've appealed at this point, no, your honor.

[00:34:50] Speaker 03:
Who should the injunction run against?

[00:34:51] Speaker 00:
Dr. Kwan.

[00:34:53] Speaker 02:
What does he have to do with it?

[00:34:55] Speaker 00:
He's the medical director of the facility.

[00:34:58] Speaker 00:
So our client stated clearly in listing the defendants in their official capacities, he provided the responsibility of Dr. Kwan as the person that he would be getting this relief from.

[00:35:12] Speaker 03:
So what should the injunction say to Dr. Kwan?

[00:35:17] Speaker 00:
To provide him with this specialist.

[00:35:21] Speaker 00:
The record does not show this.

[00:35:23] Speaker 00:
The record shows that he had waited a year as of the first complaint, and a year plus as of the second, to have a specialist actually see him.

[00:35:32] Speaker 00:
Dr. Kwan said he has the right to see a specialist, but has not actually made it happen.

[00:35:36] Speaker 00:
And so to this day, as I answered Judge Smith's question, he's yet to receive a surgery for the remaining bone fragments in his soft tissue.

[00:35:43] Speaker 00:
I do want to, in the 30 seconds I have,

[00:35:47] Speaker 00:
The meaningful differences that my friend on the other side pointed to all go to the merits and are not a part of this inquiry and this court should reverse.

[00:36:01] Speaker 00:
Thank you.

[00:36:02] Speaker 02:
Thank you both for your fine argument.

[00:36:04] Speaker 02:
We appreciate it.

[00:36:05] Speaker 02:
The case just argument argued has been submitted or is submitted.