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

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

[00:00:06] Speaker 00:
Good morning, Your Honors.

[00:00:07] Speaker 00:
May it please the Court, Stacey Newman on behalf of Appellant Kentrell Welch.

[00:00:11] Speaker 00:
I'd like to reserve three minutes on rebuttal and I can keep an eye on my time.

[00:00:15] Speaker 00:
The issue in this case is whether the Federal District Court erred in granting summary judgment against Mr. Welch

[00:00:20] Speaker 00:
holding that he failed to satisfy the Prison Litigation Reform Act's exhaustion requirement.

[00:00:25] Speaker 00:
Because the record supports inferences in Mr. Welch's favor that the Nevada grievance system is opaque to the point of being unknowable, and to the point where even its own NDOC Nevada Department of Corrections officials disagree about how the system is to work, this court should reverse.

[00:00:42] Speaker 02:
How many grievances prior to this one did your client file?

[00:00:47] Speaker 00:
Your Honor, in the record, we have a span from about 2016 to 2022, and that reflects about, I believe, 163 grievances.

[00:00:55] Speaker 02:
And he won five of them?

[00:00:57] Speaker 00:
I believe it was eight were either partially granted or fully granted.

[00:01:01] Speaker 02:
And he negotiated his way through those.

[00:01:05] Speaker 00:
He was able to progress to the end.

[00:01:09] Speaker 00:
I would note that in one of those, he did proceed at the informal level four times, and that was granted.

[00:01:14] Speaker 00:
So various ways of navigating the system, but yes.

[00:01:18] Speaker 04:
He's a pretty good jailhouse lawyer, isn't he?

[00:01:21] Speaker 00:
Well, Your Honor, Mr. Welch was only able to prevail on a very, very small percentage.

[00:01:25] Speaker 04:
Prevailing is not really the issue, is it?

[00:01:27] Speaker 04:
The question is whether his rights are so opaque, he can't possibly understand them.

[00:01:33] Speaker 04:
And yet, this is a gentleman.

[00:01:35] Speaker 04:
who by my count here filed 189 grievances from 2014 to 2021.

[00:01:42] Speaker 04:
He won five outright, three were agreed partially, you know, in a jailhouse situation.

[00:01:50] Speaker 04:
That's not bad.

[00:01:52] Speaker 04:
He knows the system.

[00:01:53] Speaker 04:
He knows how to work the system.

[00:01:54] Speaker 04:
And now he's saying, hey, I don't, I didn't get to really exhaust it because I don't understand the system.

[00:02:01] Speaker 04:
That doesn't make any sense, does it?

[00:02:03] Speaker 00:
Well, your honor, looking at the test set out in Ross v. Blake does not require that an inmate show that he's never successful in the grievance system or that any inmate can't make it through a cable percentage rule.

[00:02:14] Speaker 00:
No, your honor, the rules articulated in Ross v. Blake is whether and I'll quote no reasonable inmate can make sense of what it demands.

[00:02:21] Speaker 04:
And you don't think with all this litigation that he's been involved in and the success that he's had that he can't make any sense of it.

[00:02:30] Speaker 00:
That is what we're arguing and we think this is really reflected when you look at what happened at Mr. Welch's first attempt to grief retaliation.

[00:02:36] Speaker 02:
You mean the one where he wrote on it specifically and I'm looking maybe I've got the wrong one here, ER 580, information attached for tracking purposes?

[00:02:47] Speaker 00:
Yes.

[00:02:47] Speaker 02:
Is that what you're talking about?

[00:02:48] Speaker 00:
Yes.

[00:02:49] Speaker 02:
Where that language is pulled right from the

[00:02:53] Speaker 02:
Would you claim or the is the opaque system and means it's informal to the warden right?

[00:03:01] Speaker 00:
Yes, your honor.

[00:03:02] Speaker 02:
I am referring to that grievance and then the second one he chose to file suit before it was resolved, right?

[00:03:11] Speaker 00:
Yes, your honor in that case.

[00:03:13] Speaker 00:
He filed the grievance and he did file suit the next day and

[00:03:15] Speaker 00:
However, this court's precedent makes clear in Sadozzi v. Davis, which the district court did cite to, that the only relevant date for exhaustion purposes is the amended complaint, which was in March of the following year.

[00:03:26] Speaker 00:
But I'm getting back to that first retaliation grievance your honor referred.

[00:03:30] Speaker 00:
That was rejected for not starting at the informal level.

[00:03:33] Speaker 00:
However, it's not clear on the face of the grievance procedure, which is Administrative Regulation 740, that that was not allowed.

[00:03:40] Speaker 00:
And at the Rule 30 v.

[00:03:41] Speaker 00:
6 deposition, where the NDOC designee testified,

[00:03:44] Speaker 00:
He specifically said that an inmate can start grieving at the first level.

[00:03:49] Speaker 02:
Maybe I'm looking at the wrong part of the policy.

[00:03:51] Speaker 02:
I'm looking at ER 559.

[00:03:55] Speaker 02:
And it says the inmate shall file an informal grievance form that states for tracking purposes when an issue goes directly to the warden first level for a decision such as disciplinary appeals, visiting denials, any allegation of sexual abuse or male censorship,

[00:04:14] Speaker 02:
whether it's right or wrong for this complaint, he chose to use that language that came right from the policies, right?

[00:04:21] Speaker 00:
Yes, Your Honor, and despite doing that, he was still rejected.

[00:04:25] Speaker 00:
And as I was saying, at the 30B6 deposition, the NDOC designee, whose testimony is binding upon the organization, said in three different places that an inmate can start grieving at the first level, that the informal level is not necessary.

[00:04:37] Speaker 04:
But you seem to be arguing, counsel,

[00:04:40] Speaker 04:
It isn't the fact that he's sophisticated, it's how successful he's been.

[00:04:44] Speaker 04:
If he hasn't been successful in his previous grievances, then we have to say there's no exhaustion requirement under the Prison Litigation Reform Act.

[00:04:56] Speaker 04:
Is that your position?

[00:04:57] Speaker 00:
We believe that is one factor among many on the record that we developed showing... What else?

[00:05:02] Speaker 00:
So like I was saying, the testimony of the designee where he is at odds with this other prison official,

[00:05:07] Speaker 00:
who rejected Mr. Welch's grievance for not starting at the informal level.

[00:05:13] Speaker 00:
And then we have this conflicting testimony on behalf of NDOC as an organization as a whole saying, no, actually you can do that.

[00:05:20] Speaker 00:
So here we have two NDOC officials disagreeing on the very basics of how this system is supposed to work.

[00:05:26] Speaker 00:
And we think that that shows under Ross, you know, an example of how a system can be so opaque that no one can really discern how it's supposed to work, even the officials that are supposed to be enforcing it.

[00:05:37] Speaker 02:
Yeah, I mean, I think your, with respect, counsel, your bottom line strikes me as what Judge Smith said.

[00:05:46] Speaker 02:
I'm looking at sort of the end of the blue brief on page 29.

[00:05:51] Speaker 02:
During this period, he filed 189 grievances.

[00:05:54] Speaker 02:
That represents a 96% failure rate.

[00:05:57] Speaker 02:
These consistent failures of his attempts to grieve demonstrate the concern the Supreme Court noted in Ross that the grievance system

[00:06:07] Speaker 02:
too often operated as a simple dead end to Welch.

[00:06:11] Speaker 02:
And it sure looks to me like he's arguing that I don't have to exhaust administrative procedures because when I do, I typically lose.

[00:06:23] Speaker 00:
That is one interpretation.

[00:06:24] Speaker 00:
And I would say that that is also supported by this court's precedent in SAP v. Kimbrough, where this court held that if a grievance is repeatedly screened out for improper reasons, that an inmate might be left with a reasonable belief

[00:06:36] Speaker 00:
that the grievance system will not be available to him.

[00:06:37] Speaker 01:
But the key word in that is improper.

[00:06:40] Speaker 01:
It can't be the law that if you file an enormous volume of frivolous and meritless petitions, that that then bootstraps you into saying, I no longer need to exhaust because it never works, I never win.

[00:06:55] Speaker 00:
And no, Your Honor, that is not what we are arguing.

[00:06:57] Speaker 00:
And that percentage of success rate was just once amongst many arguments we made demonstrating that the system

[00:07:03] Speaker 00:
is opaque.

[00:07:04] Speaker 00:
Again, we also rely on the endocs designees testimony or several times they're at odds with what happened in Mr. Welch's own case.

[00:07:12] Speaker 00:
We have irreconcilable internal conflicts amongst the grievance policy itself.

[00:07:17] Speaker 00:
For example,

[00:07:18] Speaker 00:
Another huge dead end in the grievance procedure is that it does not allow inmates to re-grieve issues if they've made a mistake.

[00:07:26] Speaker 00:
Not only is this clear from the face of the procedure itself, which is AR 740.034E, the end-doc designee testified that this provision effectively operates as a dead end two separate times.

[00:07:37] Speaker 00:
And I do see that I'm cutting into my rebuttal time.

[00:07:39] Speaker 04:
Please save your time.

[00:07:40] Speaker 00:
Okay.

[00:07:40] Speaker 00:
Thank you, Your Honors.

[00:07:44] Speaker 04:
Very well.

[00:07:46] Speaker 04:
Mr. Davis.

[00:07:59] Speaker 03:
I want to thank the court for the opportunity to present my issues and for the arguments of opposing counsel.

[00:08:05] Speaker 03:
First of all, the district court properly granted defendants' motion for summary judgment because Kendrell Welch failed to exhaust his administrative remedies, which are mandated by the PLRA and the Supreme Court's decision in Woodruff.

[00:08:18] Speaker 03:
Nevertheless, even if Welch had exhausted, defendants are entitled to qualified immunity because he points to no clearly established precedent under the facts of this case, which would cause the defendants to believe that they retaliated against Welch or failed to protect him.

[00:08:34] Speaker 03:
First, I'm going to address failure to exhaust, and then I'm going to proceed on to qualified immunity.

[00:08:42] Speaker 03:
Welch wrongly insists that the remedies in NDOC 740 were unavailable to him.

[00:08:48] Speaker 03:
This, however, is not a case like I think your honors have suggested.

[00:08:51] Speaker 03:
It's not a case of unavailable remedies, but a case of available remedies that Welch just refused to utilize.

[00:08:58] Speaker 03:
Welch was well versed in the grievance process.

[00:09:01] Speaker 03:
Lots of facts in this case, but I think this is probably the most telling.

[00:09:05] Speaker 03:
In the five years before submitting his complaint, Welch successfully navigated the three steps of the grievance process in 30 occasions.

[00:09:15] Speaker 03:
So that's once every two months.

[00:09:17] Speaker 03:
I can hardly believe that Welch can say, I don't know how to do this when he's done it 30 times in five years.

[00:09:24] Speaker 03:
Once every two months.

[00:09:26] Speaker 04:
When you say successful, you mean he went through the whole process.

[00:09:28] Speaker 03:
He went through the process.

[00:09:30] Speaker 03:
Not that he got a successful result.

[00:09:32] Speaker 03:
And I want to talk a little bit about that successful result.

[00:09:35] Speaker 03:
They're kind of arguing a quota.

[00:09:37] Speaker 03:
Somehow the NDLC is required to have a quota about how many grievances we grant.

[00:09:41] Speaker 03:
I mean, I think the courts already said that that's kind of ridiculous because what would that lead to?

[00:09:46] Speaker 03:
That would lead to, well, hey, this year we only granted 10 percent of the grievances in our case.

[00:09:52] Speaker 03:
The Ninth Circuit is then going to tell us, hey, our remedies aren't available.

[00:09:55] Speaker 03:
We've got to up that.

[00:09:55] Speaker 03:
We've got to grant 20 percent or 30 percent or whatever arbitrary number the court would decide.

[00:09:59] Speaker 02:
It does seem to be an odd argument, but it does seem to be in part what your friend is arguing.

[00:10:06] Speaker 03:
Right, and that's what I, and I agree, Your Honor.

[00:10:11] Speaker 03:
Additionally, they don't dispute that the NDOC AR 740s were available in law library, which bars any claim of unavailability.

[00:10:19] Speaker 03:
That's the, and I would cite the court to the Cortanas case and the Wilson case.

[00:10:24] Speaker 03:
Additionally, Wilson was repeatedly instructed about how to file agreements.

[00:10:28] Speaker 03:
Wilson does not deny he attended orientations.

[00:10:31] Speaker 03:
And even if Wilkes made a mistake, he was told how to correct.

[00:10:36] Speaker 03:
the grievance and given an opportunity to resubmit.

[00:10:39] Speaker 03:
But guess what?

[00:10:40] Speaker 03:
Well, it just didn't want to resubmit.

[00:10:41] Speaker 01:
What's your response to opposing counsel's argument that under this system you can't regrieve if you make a mistake?

[00:10:49] Speaker 03:
Well, that would be wrong, because that's exactly contrary to the record of this case, Your Honor.

[00:10:57] Speaker 03:
For example, when he put the thing for tracking purposes only, which he pulled out of the rules, which the rule says three discrete ways that you can use that.

[00:11:05] Speaker 03:
So Welch knew that he was only supposed to do that.

[00:11:07] Speaker 03:
He was just trying to make an argument to bypass it without following the plain language of the rule.

[00:11:16] Speaker 03:
But could you repeat the question, Your Honor?

[00:11:23] Speaker 01:
She claimed that under this system, if you make a mistake, you can't re-grieve it.

[00:11:28] Speaker 03:
So for example, in that particular instance, he was given an opportunity.

[00:11:32] Speaker 03:
He was told, don't put it under tracking.

[00:11:33] Speaker 03:
Start over.

[00:11:34] Speaker 03:
And in fact, he did start over again.

[00:11:36] Speaker 03:
But in that particular instance, what he did was he filed more than one grievance in a week.

[00:11:40] Speaker 03:
And this court has said that that's a perfectly reasonable limitation to say that an inmate can only file one grievance a week.

[00:11:47] Speaker 02:
There are some exceptions to that if it's a true emergency, right?

[00:11:51] Speaker 03:
That's true.

[00:11:51] Speaker 03:
And in fact, there are ways that if you read the AR 740, there are ways to have this where if it's an emergency, the person can hand the grievance immediately to an officer and then it has to be ruled on within 24 hours.

[00:12:02] Speaker 01:
So you said that this provision here that has the foot tracking purposes is paragraph 10.

[00:12:08] Speaker 01:
You said it applies only to the three categories that are there, but the three categories are preceded by the

[00:12:15] Speaker 01:
phrase such as, which suggests that they're not exclusive.

[00:12:19] Speaker 01:
What else is covered by this?

[00:12:21] Speaker 03:
I think what it's such as, it's such as the similar kind of rules.

[00:12:25] Speaker 03:
And again, I think that provides the discretion for them to do emergency grievances and for allowing the warden to

[00:12:32] Speaker 03:
to take up any grievance he wants.

[00:12:34] Speaker 03:
And in fact, I think that's the system that's permitted that the warden can do it.

[00:12:38] Speaker 03:
But then when it says, when the NDOC expressly tells him and says, hey, this isn't one of those instances, please resubmit, he can resubmit.

[00:12:47] Speaker 03:
And there's no reason why he shouldn't be resubmitting when they tell him it's not that instance.

[00:12:53] Speaker 03:
I think that the NDOC is entitled to be able to interpret its rules.

[00:12:57] Speaker 03:
And as long as they give him an opportunity to resubmit, it cannot be unavailable.

[00:13:01] Speaker 03:
And I think Your Honors have made the point that this is not about the standard that the Supreme Court says is unavailability.

[00:13:10] Speaker 03:
That is the only standard this Court has permitted to apply.

[00:13:13] Speaker 03:
The Supreme Court has been very clear about that in Ross, that you can only apply unavailability.

[00:13:18] Speaker 03:
And what Your Honors have been saying is they're not arguing unavailability, they're arguing unsuccessful.

[00:13:24] Speaker 03:
That, hey, if he files enough unsuccessful grievances, then guess what?

[00:13:28] Speaker 03:
He doesn't have to grieve anymore.

[00:13:29] Speaker 03:
Well, and we know that can't be the rule.

[00:13:32] Speaker 03:
What's there for is failed to come back with any evidence showing that something in this particular case has made the three straightforward steps in NDRC effectively unavailable to him because that's not the case at all here.

[00:13:46] Speaker 03:
They were fully available to him.

[00:13:48] Speaker 03:
He just did not want to follow the process.

[00:13:50] Speaker 03:
I want to talk about the stuff about a little bit about

[00:13:52] Speaker 03:
the deposition of the sergeant.

[00:13:55] Speaker 03:
First of all, that deposition had nothing to do with, and these were just questions that came out of the left field about the interpretation of the grievance procedures.

[00:14:05] Speaker 03:
And I would like to make clear that sergeants really don't have any involvement in the grievance process.

[00:14:10] Speaker 03:
They're not answering grievances.

[00:14:11] Speaker 03:
They're not talking about grievances.

[00:14:13] Speaker 03:
And so it's not surprising that they are unfamiliar with the grievance process in this case.

[00:14:17] Speaker 03:
The people who are responsible for

[00:14:20] Speaker 03:
responding to grievances are the supervisors, the wardens, and the directors are deputy directors.

[00:14:28] Speaker 03:
And so that's not hardly surprising at all.

[00:14:32] Speaker 03:
Walt admits that under Ross, limits the time for grievances that are straightforward are a dead end, or unknowable, or where present officials make

[00:14:43] Speaker 03:
afford the advantage to take, or affirm the authority of the presence of him for doing a grievance.

[00:14:51] Speaker 03:
And I submit that they haven't established any one of those things, and those are the only things that Ross has said that allowed to show unavailability.

[00:14:59] Speaker 03:
I want to talk briefly a moment about

[00:15:07] Speaker 03:
about qualified immunity.

[00:15:08] Speaker 03:
Defendants are also entitled to qualified immunity because wealth has not and cannot point to any authority showing a violation of a clearly established right.

[00:15:18] Speaker 01:
agree erasing this is an alternative argument but if we didn't agree on exhaustion why wouldn't we just send this issue because the district court didn't reach this issue did it?

[00:15:27] Speaker 03:
They did not your honor but the thing is what qualified immunity is immunity from litigation I mean that's what's protected it says we're immune for discovery we're immune from all this and so I think this court has an obligation to take up the issue so that we because we're entitled to qualified immunity.

[00:15:43] Speaker 02:
But counsel I mean putting aside

[00:15:46] Speaker 02:
the important concern Judge Collins raised.

[00:15:50] Speaker 02:
I mean, when I look at the allegations here, the allegations are that he was referred to as a snitch in front of other inmates, that that is maybe not the worst thing that you could be labeled with in a prison system, but it's pretty bad.

[00:16:11] Speaker 02:
And don't we have cases saying that

[00:16:13] Speaker 02:
If that is done in retaliation and exposes an inmate to a potential serious problem that that can state a constitutional claim.

[00:16:24] Speaker 02:
Why based on the record that we have here if we chose to reject the exhaustion argument

[00:16:30] Speaker 02:
Why wouldn't that get past the stage of this case that it was at?

[00:16:35] Speaker 03:
Well, first of all, I don't think Your Honors are correct.

[00:16:37] Speaker 03:
Well, I respectfully disagree with Your Honors that there are cases, public opinions in the Ninth Circuit or in other circuits, or a consensus of authority from other circuits saying that being a snitch is an adverse action.

[00:16:49] Speaker 03:
But that's not what happened here, Your Honors.

[00:16:51] Speaker 03:
He was never called a snitch.

[00:16:52] Speaker 03:
There's no evidence in the record, no admissible evidence in the record that he was called a snitch.

[00:16:57] Speaker 03:
What there is is there's double hearsay.

[00:17:00] Speaker 03:
and what we all know that double hearsay is not admissible evidence and you have to have admissible evidence to overcome summary judgment.

[00:17:08] Speaker 03:
What there is is, in other words, in order to overcome qualified immunity with respect to his retaliation claim, Welch would have to point to circuit precedent establishing that a correction officer remarking that

[00:17:21] Speaker 03:
an inmate had been riding kites on him, which I think other inmates would be glad that he's riding kites on our correction officer, was an adverse action after the inmate threatened to file a grievance, which the correction officer had no knowledge of.

[00:17:33] Speaker 03:
And that's the facts in this case.

[00:17:35] Speaker 03:
And of course there is no precedent because under the current established precedent, harsh words are not an adverse action.

[00:17:41] Speaker 02:
Harsh words are different than labeling someone who

[00:17:48] Speaker 02:
reports things to prison staff, whether it is about another inmate, a gang member, or an ACO, that carries a label with it, which is a label you'd never want to have in prison.

[00:18:06] Speaker 02:
And there are documented cases of somebody who is stuck with that label, suffering very adverse consequences.

[00:18:13] Speaker 03:
Well, but Your Honor, there is no, again, I would point, Your Honor, there is no admissible evidence

[00:18:18] Speaker 03:
that he was ever labeled a smitch.

[00:18:20] Speaker 03:
All that he said was, all that he said was, an inmate has been riding kites on him.

[00:18:27] Speaker 03:
And that's not even harsh word, Your Honor.

[00:18:29] Speaker 03:
That's the only admissible evidence in this case.

[00:18:33] Speaker 04:
Other questions by my colleagues?

[00:18:35] Speaker 04:
All right.

[00:18:36] Speaker 04:
Thank you, Counsel.

[00:18:36] Speaker 04:
Thank you.

[00:18:38] Speaker 04:
So we have some rebuttal time.

[00:18:46] Speaker 00:
Thank you, your honors.

[00:18:47] Speaker 00:
I'd like to start off with just what I think is a very important correction to how my opponent characterized the record.

[00:18:53] Speaker 00:
At that Rule 30B6 deposition, the designee that defendants chose was the warden of another NDOC facility with over 25 years of correctional experience.

[00:19:03] Speaker 00:
And in that notice for that deposition,

[00:19:05] Speaker 00:
Grievance policy discussion was noticed as one of those topics so I would really reject any implication that this came out of left field or that the Defendants were not properly noticed about that subject of the 30b six-step position

[00:19:18] Speaker 00:
I might also say we are absolutely saying that remedies were unavailable.

[00:19:21] Speaker 00:
We are not saying that Mr. Welch just failed to follow them.

[00:19:24] Speaker 00:
We are arguing that they are unavailable, both kind of writ large and also how it played out in Mr. Welch's specifics.

[00:19:31] Speaker 04:
At bottom though, as we've talked about, it seems reading the pleadings and frankly listening to you today, what it really boils down to is that if your client or others don't win enough,

[00:19:44] Speaker 04:
in their grievances, that's when you've got a legitimate case.

[00:19:48] Speaker 04:
It's pretty clear that he knew the system.

[00:19:51] Speaker 04:
My colleague has pointed out some ways in which he did that.

[00:19:56] Speaker 04:
Other than a quota or some concept of you've got to allow them to win a certain number of cases, what are you pointing us to?

[00:20:04] Speaker 04:
What are you looking for from this court to clarify when what happened here, it was enough or not enough?

[00:20:14] Speaker 00:
So, Your Honor, we are not arguing for a quota argument.

[00:20:17] Speaker 00:
That is one small piece of what we're arguing.

[00:20:19] Speaker 00:
But really, like what I've been talking about today, we have different NDOC officials disagreeing on the very basics of how... Is that the rule then?

[00:20:26] Speaker 04:
If you have more than one NDOC official that disagrees, that's enough to show that it's opaque?

[00:20:33] Speaker 00:
It may be, Your Honor, especially if it's something as basic as where an inmate is supposed to start.

[00:20:37] Speaker 00:
And if they're rejected, if they're at crosshairs about why, and when the AR itself doesn't say who's right, it's irreconcilable.

[00:20:45] Speaker 00:
I also wanted to point out what Your Honor was asking about, about the inability for an inmate to regrieve something if they made a mistake.

[00:20:52] Speaker 00:
And I'm just reading directly from 3ER552, that's subsection E. Grievances that have the same issue and are previously filed grievance will not be accepted even if the requested action or remedy is different on the subsequent grievance.

[00:21:05] Speaker 00:
And when asked about that at the 36th deposition, the designee agreed several times that that does operate as a dead end.

[00:21:12] Speaker 00:
And in this case, Mr. Welch was not told to refile his grievance.

[00:21:15] Speaker 00:
It simply said, must start at the informal level, rejected.

[00:21:20] Speaker 00:
It did not give him a path forward.

[00:21:21] Speaker 00:
And on the face of the ARC, he did not have a path forward.

[00:21:25] Speaker 04:
OK.

[00:21:25] Speaker 04:
Other questions about my colleague?

[00:21:27] Speaker 04:
All right.

[00:21:27] Speaker 04:
Thanks to both counsel for your argument.

[00:21:29] Speaker 04:
The case just argued is submitted.