[00:00:06] Speaker 05:
Good morning, everyone, and welcome to the Sandra Day O'Connor courthouse here in Phoenix.

[00:00:11] Speaker 05:
It is good to be visiting on the last day of our February calendar today.

[00:00:17] Speaker 05:
We have two cases submitted on the briefs.

[00:00:23] Speaker 05:
I'll do some housekeeping with those right now before our first argument.

[00:00:28] Speaker 05:
First case to be submitted on the briefs is number 221083, Dominguez-Robles versus Garland.

[00:00:34] Speaker 05:
That is submitted.

[00:00:37] Speaker 05:
And the second case is 22-16-481 Lewis versus Shin.

[00:00:44] Speaker 05:
And that case will be submitted.

[00:00:48] Speaker 05:
Our first case for argument this morning is Sanders versus Ryan and Trinity Services.

[00:00:54] Speaker 05:
Mr. Dawson, good morning.

[00:00:58] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:01:01] Speaker 04:
My name is James Dawson, and I was appointed to represent Mr. Sanders in this appeal.

[00:01:05] Speaker 04:
I'll aim to reserve two minutes for rebuttal.

[00:01:09] Speaker 04:
This is an important civil rights case concerning the Arizona Department of Corrections restraint policies.

[00:01:14] Speaker 04:
I hope to cover three points this morning.

[00:01:17] Speaker 04:
The first relates to our Eighth Amendment challenge to the defendant's restrained policies and practices.

[00:01:22] Speaker 04:
And here, the key point is that the district court just misstated the policy's exceptions.

[00:01:28] Speaker 04:
It said at one Sanders ER night.

[00:01:30] Speaker 00:
Can I make a suggestion?

[00:01:32] Speaker 00:
What the district court did or didn't do, because I noticed this in your brief, is really not the point at this point.

[00:01:37] Speaker 00:
We're on a summary judgment motion.

[00:01:40] Speaker 00:
I mean, it is the point with regard to the brief, because that's an abuse of discretion standard, but the filing of the summary judgment motion.

[00:01:46] Speaker 00:
But as to the rest,

[00:01:47] Speaker 00:
It would help me more if you just go with the issues directly instead of at what the district court did right or wrong.

[00:01:54] Speaker 00:
Okay.

[00:01:56] Speaker 04:
Yes, Your Honor.

[00:01:57] Speaker 04:
So the second point that we hope to address is the failure to train claims.

[00:02:03] Speaker 04:
Those relate to what we believe was a stated claim having to do with the defendant's failure to train their subordinates.

[00:02:10] Speaker 04:
And the final claim I hope to cover this morning relates to what we believe was an abuse of discretion on the district court's part with respect to the failure to with respect to the striking of my client's papers.

[00:02:22] Speaker 04:
Judge Berzon, perhaps I'll begin with your claim.

[00:02:25] Speaker 04:
I recognize that there's been some confusion in the briefs, and perhaps when I was rereading them, it seemed at times to me that they were talking past one another about what the policy is and why it might or might not be unconstitutional.

[00:02:38] Speaker 04:
I think part of the explanation for that is that the reasons that the policy is unconstitutional obviously vary quite a bit depending on what the contours of the policy actually are.

[00:02:49] Speaker 03:
Well, it's written.

[00:02:50] Speaker 03:
We have a written policy, it's order 705, and it says prisoners are to be transported in restraints.

[00:03:00] Speaker 03:
Apparently there's no dispute in this case that while they're in non-Department of Corrections medical facilities, they're to be kept in restraints.

[00:03:09] Speaker 03:
And it has two exceptions.

[00:03:11] Speaker 03:
One for a documented medical need, and you have to communicate that up to the warden.

[00:03:17] Speaker 03:
Or the people on the scene can do something if they see an emergent situation.

[00:03:24] Speaker 03:
That's a fair description of the policy, is it not?

[00:03:28] Speaker 04:
Well, I believe there's a great deal of disagreement between the two sides about what the second part of that means.

[00:03:32] Speaker 03:
Well, there may be disagreement about what it means, but that's what the policy says, correct?

[00:03:37] Speaker 03:
Correct.

[00:03:37] Speaker 03:
OK.

[00:03:37] Speaker 03:
Correct.

[00:03:38] Speaker 03:
Now, here's my difficulty with your Eighth Amendment claim, putting aside whether the judge should have granted more time to respond and everything else.

[00:03:47] Speaker 03:
Your only two defendants are the warden and the director, correct?

[00:03:53] Speaker 03:
Correct.

[00:03:55] Speaker 03:
And so far as I can tell, other than promulgate the policy and perhaps fail to train, put that aside for a second, they didn't do anything in this case, did they?

[00:04:06] Speaker 04:
That's right.

[00:04:07] Speaker 03:
So your claim has to be as to them, again, putting aside failure to train, that the policy is facially unconstitutional.

[00:04:16] Speaker 04:
Correct.

[00:04:16] Speaker 03:
So we don't have to argue about what happened at the hospital or didn't happen at the hospital.

[00:04:22] Speaker 03:
So tell me how a policy that on its face, we can read it as well as anybody else, has these exceptions is facially unconstitutional.

[00:04:31] Speaker 04:
Well, the answer to that, Your Honor, is that the defendants have now told us at pages 13 and 32 of their red brief that that policy on the face of it, the obvious need exception, does not cover pain.

[00:04:42] Speaker 03:
It doesn't matter what they say.

[00:04:43] Speaker 03:
My question is, why is that

[00:04:45] Speaker 03:
facially unconstitutional.

[00:04:47] Speaker 03:
You may think it's unconstitutional as applied to a particular case, but they didn't do anything in your particular case.

[00:04:55] Speaker 03:
So why is it, what's wrong, how can we look at this policy and say on its face it is indifferent to the suffering of someone?

[00:05:05] Speaker 04:
Well, because their understanding of the face of the policy is that it does not require officers to alleviate inmates' pain.

[00:05:12] Speaker 03:
Where do you find that in their briefing?

[00:05:14] Speaker 04:
That's pages 13 and 32 of their red brief.

[00:05:18] Speaker 04:
And I think the problem here is that if the policy does indeed say that there's an obvious need exception, but it does not cover pain, then it violates the cases that are collected at page 17 of our reply brief, which say that there is an Eighth Amendment right for officers to alleviate objectively serious complaints of pain on behalf of inmates.

[00:05:39] Speaker 00:
Can I ask a somewhat related question?

[00:05:41] Speaker 00:
Did these two defendants, Moody and Ryan, did one or both of them promulgate this policy?

[00:05:48] Speaker 00:
a prison-wide policy, is that wrong?

[00:05:54] Speaker 04:
It is a department-wide policy.

[00:05:55] Speaker 00:
Department-wide policy.

[00:05:56] Speaker 04:
The allegation is that the director, Ryan, promulgated the policy.

[00:05:59] Speaker ?:
I see.

[00:05:59] Speaker 03:
I see.

[00:06:00] Speaker 03:
So what did Moody do with respect to the policy?

[00:06:02] Speaker 04:
So Moody was the warden of the facility.

[00:06:04] Speaker 04:
And the way that the policy is drafted says that the warden is responsible for implementation of the statewide policy.

[00:06:11] Speaker 03:
Well, but again, what did Moody do with respect to the policy?

[00:06:16] Speaker 03:
I mean, he didn't promulgate it.

[00:06:18] Speaker 03:
He didn't do anything to enforce it in this case.

[00:06:22] Speaker 03:
So what did Moody do?

[00:06:23] Speaker 03:
Again, put aside your failure to train claim, which I'm not and it's not your fault.

[00:06:27] Speaker 03:
It was a pro se complaint.

[00:06:28] Speaker 03:
I'm not sure it was pleaded.

[00:06:30] Speaker 03:
What did Moody do in this case to to be deliberately indifferent to the needs of Mr. Sanders?

[00:06:36] Speaker 04:
So just to be clear, we are not saying that he had subjective personal knowledge of the way.

[00:06:41] Speaker 03:
Well, no, I'm trying to figure out what you're suing him.

[00:06:44] Speaker 03:
You're suing him for a civil rights violation, and you're saying that he was deliberately indifferent to Mr. Sanders' health or needs.

[00:06:51] Speaker 03:
And I'm trying to figure out, again, putting aside your failure to train claim, what Mr. Moody did to be subject to liability in this case.

[00:07:01] Speaker 04:
So this court's 1991 in-bank decision in Redmond says that you do not need overt or active participation in a policy if the allegation is, as is ours, that the policy is so deficient on its face as to be unconstitutional.

[00:07:16] Speaker 04:
The Supreme Court affirms that rule in the City of Canton in the failure to train context.

[00:07:20] Speaker 03:
And is that true for even somebody who didn't promulgate the policy?

[00:07:24] Speaker 04:
Yes, because he's responsible for the implementation of the policy.

[00:07:27] Speaker 04:
So the allegation is he didn't do anything to implement it.

[00:07:30] Speaker 04:
He was not responsible for the training.

[00:07:31] Speaker 04:
But there's no dispute that the way the sort of pyramid of authority works is that it is his power.

[00:07:38] Speaker 04:
He says he delegated it.

[00:07:39] Speaker 04:
But an official capacity claim can lie against the person who has responsibility for training, even if the allegation is that they didn't do anything with that responsibility.

[00:07:49] Speaker 04:
It's an inaction.

[00:07:50] Speaker 03:
So our argument is that the- Well, but then you'd have to make out a cause of action for training, for failure to train.

[00:07:56] Speaker 04:
Well, no.

[00:07:57] Speaker 04:
So that issue separately.

[00:07:58] Speaker 04:
There's also a deliberate indifference claim that's a facial challenge to the policy.

[00:08:02] Speaker 04:
And we think that lies under Redmond because the policy, as they have now explained it, is facially unconstitutional.

[00:08:09] Speaker 03:
I want to ask you one other question.

[00:08:10] Speaker 03:
I know you wanted to save some time for rebuttal.

[00:08:14] Speaker 03:
If we find, I'm not sure that it matters in this case, but if we find that the district judge

[00:08:20] Speaker 03:
did not abuse his discretion in failing to further extend the time for a third time to respond to the summary judgment motions.

[00:08:30] Speaker 03:
Do you lose?

[00:08:31] Speaker 04:
No.

[00:08:31] Speaker 04:
I think it's a much easier case if you agree with us on that.

[00:08:34] Speaker 04:
But on all of the claims, I think there is sufficient evidence based on the face of the verified complaint and the defendant's materials and summary judgment that would have been sufficient to preclude a grant of summary judgment against our client.

[00:08:48] Speaker 04:
If there are no further questions, I'll reserve the remainder of my time for rebuttal.

[00:08:51] Speaker 05:
Thank you.

[00:08:52] Speaker 05:
Thank you, Mr. Dawson.

[00:08:53] Speaker 05:
Ms.

[00:08:53] Speaker 05:
Davis.

[00:08:59] Speaker 01:
Good morning.

[00:08:59] Speaker 01:
May it please the court.

[00:09:01] Speaker 01:
Nancy Davis here on behalf of Charles Ryan and Chris Moody.

[00:09:05] Speaker 01:
My colleague Mr. Dunn is also here.

[00:09:07] Speaker 01:
He was representing Director Shin and Trinity Services with respect to the claims in count one.

[00:09:13] Speaker 01:
And I will be arguing the claims in count two and three of Mr. Sanders complaint.

[00:09:17] Speaker 01:
With respect to the argument that the departmental order 705 is unconstitutional, that is incorrect.

[00:09:25] Speaker 01:
The policy as written provides for a mechanism to relieve an inmate's subjective complaint of pain.

[00:09:32] Speaker 01:
And that is, through the request of a medical provider in writing, transferred to the Arizona Department of Corrections.

[00:09:40] Speaker 01:
Mr. Sanders does not dispute that he did not ask anyone to make- So you agree, therefore, that the obvious condition

[00:09:47] Speaker 00:
exception doesn't apply to Payne.

[00:09:54] Speaker 01:
Is that right?

[00:09:55] Speaker 01:
Correct.

[00:09:55] Speaker 01:
For purposes of the corrections officers under the policy in this case, as the policy is written, under the facts of this case, that's absolutely correct.

[00:10:04] Speaker 01:
And the reason for that is, and I think we need to remember where Mr. Sanders was, he was no longer in the confines of the prison.

[00:10:11] Speaker 01:
He was in a public hospital, in a public ward,

[00:10:15] Speaker 01:
surrounded by members of the public.

[00:10:17] Speaker 01:
Banner Baywood's own directive to prisoner patient inmates indicates that the safety and security of the people within the hospital is a primary concern.

[00:10:31] Speaker 00:
But just to finish, or to continue, the written policy does say if an inmate is obviously injured or has an obvious physical condition which prevents the application and use of usual restraints,

[00:10:45] Speaker 00:
The guards have the discretion to modify the restraints.

[00:10:47] Speaker 00:
It's not applying in hospitals.

[00:10:50] Speaker 01:
It does apply in hospitals, Your Honor.

[00:10:52] Speaker 01:
I'm sorry, I was getting to that part there, so let me try to answer that better.

[00:10:55] Speaker 01:
I do apologize.

[00:10:57] Speaker 01:
That exception applies to things that can objectively be determined by a corrections officer.

[00:11:04] Speaker 01:
So in other words, they're missing a limb and it makes the use of restraints impossible.

[00:11:09] Speaker 03:
What if they objectively observe someone having cramps?

[00:11:15] Speaker 03:
Is that covered?

[00:11:17] Speaker 01:
I would respectfully submit, Your Honor, that someone saying that they are having painful cramps is subjective.

[00:11:23] Speaker 03:
But that's not what I asked you.

[00:11:25] Speaker 03:
I said what if they can objectively observe, see someone having a cramp, muscles tightened up.

[00:11:32] Speaker 03:
Do they have the discretion or under that circumstance must they ask the medical personnel to request it?

[00:11:43] Speaker 01:
They do not have the discretion.

[00:11:44] Speaker 01:
The district court was correct in its order granting summary judgment that they do not have the discretion.

[00:11:49] Speaker 03:
So under that circumstance the department won't modify the restraints unless the medical provider documents

[00:11:59] Speaker 03:
the need, says, yeah, it's a real medical need, and then somebody has to call the warden?

[00:12:06] Speaker 01:
Correct, Your Honor.

[00:12:07] Speaker 01:
Or they actually have to have the medical provider do the written request.

[00:12:11] Speaker 00:
Doesn't the policy that talks about calling the medical provider and the warden say to remove all restraints?

[00:12:23] Speaker 01:
I don't recall it saying that it's to remove all restraints.

[00:12:25] Speaker 00:
I believe it does.

[00:12:26] Speaker 01:
It's a modification of restraints.

[00:12:27] Speaker 00:
No, I think it says all restraints.

[00:12:29] Speaker 01:
Okay.

[00:12:30] Speaker 00:
So that suggests that it doesn't pertain to just when you're just trying to adjust the restraints, no?

[00:12:38] Speaker 01:
It requires a special needs order to accommodate whatever the particular patient's medical needs are at that time.

[00:12:45] Speaker 03:
So how does this, this record doesn't help us, but how does a special needs order come about?

[00:12:50] Speaker 03:
Can somebody just pick up the phone and call the warden?

[00:12:53] Speaker 03:
Or do you, does it go through a bureaucracy?

[00:12:56] Speaker 01:
It goes through a process.

[00:12:58] Speaker 01:
It's a written process.

[00:12:59] Speaker 01:
The patient can request it.

[00:13:01] Speaker 01:
The medical provider can request it.

[00:13:03] Speaker 01:
It then has to go to the prison.

[00:13:04] Speaker 01:
And then because of his custody status, the warden would have to agree.

[00:13:09] Speaker 03:
So let's say there is a medical need to modify the restraints, whether to remove them or modify them.

[00:13:18] Speaker 03:
A doctor comes in and says, we've got to get the restraints off of this guy.

[00:13:21] Speaker 03:
There's a medical need to do it.

[00:13:25] Speaker 03:
What you're saying is that a written request has to be submitted to the warden?

[00:13:32] Speaker 01:
That's what the policy provides.

[00:13:33] Speaker 03:
And then the warden has to approve it in writing?

[00:13:38] Speaker 01:
I do not believe that the warden has to approve it in writing.

[00:13:41] Speaker 03:
So what happens in the meantime while this medical need exists?

[00:13:45] Speaker 01:
The medical staff are providing for him in the hospital.

[00:13:49] Speaker 03:
Well, let's assume that the medical, one of the things they need to do

[00:13:53] Speaker 03:
is remove his restraints so that they can tend to him.

[00:13:59] Speaker 03:
He's not an obvious problem, so the officers themselves cannot act on their own.

[00:14:09] Speaker 03:
And the doctor says, you can't see it, but I need to get these restraints off because I've diagnosed a ruptured aorta.

[00:14:19] Speaker 03:
You're saying that the only way the restraints can come off in that circumstance is to provide a written request?

[00:14:26] Speaker 01:
No, Your Honor.

[00:14:27] Speaker 01:
I think in that case, the doctor communicating the information to the corrections officer would allow for the modification.

[00:14:32] Speaker 03:
Because that would then be an obvious problem?

[00:14:36] Speaker 01:
Yes, Your Honor.

[00:14:36] Speaker 01:
I see I'm out of time.

[00:14:37] Speaker 03:
Well, I know, but I'd like to hear your answer.

[00:14:39] Speaker 03:
Yes, Your Honor.

[00:14:41] Speaker 03:
So now you're saying the obvious need exception

[00:14:46] Speaker 03:
could cover pain as long as a doctor communicates that to the corrections officer?

[00:14:53] Speaker 00:
Potentially, Your Honor, yes.

[00:14:54] Speaker 03:
Potentially or yes?

[00:14:56] Speaker 00:
But then it's not so obvious anymore.

[00:14:57] Speaker 01:
The obvious point is... And with all due respect, I think what's happening in that scenario is that you're not leaving the discretion solely to the officer.

[00:15:07] Speaker 01:
You're having the officer who's in a hospital setting, knowing that a patient is there, being treated by medical providers,

[00:15:13] Speaker 01:
and the medical providers are communicating that there's an emergency situation that requires the removal.

[00:15:18] Speaker 03:
So then it's become obvious to the officers, in your view, because the doctors told them?

[00:15:23] Speaker 01:
Yes, Your Honor.

[00:15:25] Speaker 05:
I'm sorry.

[00:15:26] Speaker 05:
And we'll give you a little extra time.

[00:15:28] Speaker 05:
But I would have thought that fell under the medically necessary.

[00:15:33] Speaker 05:
That's where we started here.

[00:15:36] Speaker 01:
Well, but with the questioning under the medically necessary, the question from Judge Hurwitz, I believe, was that there was not

[00:15:42] Speaker 01:
time to get a written request.

[00:15:45] Speaker 01:
The medically necessary requires the written special needs order, which has the steps in the policy to go through to accommodate the medical need.

[00:15:54] Speaker 05:
So a non-obvious emergency condition, you've got to go back and forth to the warden?

[00:16:04] Speaker 01:
Yes, Your Honor.

[00:16:05] Speaker 05:
Even if it's an emergency?

[00:16:15] Speaker 00:
If the emergency is, if the doctor says something is going on that's causing a lot of pain, nothing's going to happen to him, but he's in terrible pain and the doctor can explain subject, objectively why that's still not good enough because it's pain.

[00:16:34] Speaker 00:
Is that, is that what you're saying?

[00:16:39] Speaker 01:
No, I think that there could be a situation, your honor, where there is something happening with the inmate.

[00:16:45] Speaker 01:
that requires the removal of the restraints for the provider to treat the inmate and... For pain?

[00:16:54] Speaker 01:
Not because it's going to have any long-term effect?

[00:16:56] Speaker 01:
I think if it's purely pain without more information, I think the answer would be no, Your Honor.

[00:17:02] Speaker 05:
Unless it is a level of pain that the inmate is visibly writhing in a way that would satisfy so that it would be obvious.

[00:17:14] Speaker 05:
in terms of contracture or deformity.

[00:17:16] Speaker 05:
The list of things that you've suggested might be obvious.

[00:17:20] Speaker 05:
I guess it doesn't even include cramps.

[00:17:21] Speaker 05:
But the contracture of an extremity, unable to straighten out an arm, if that's a function of pain, that's not covered either under the obvious exception?

[00:17:33] Speaker 01:
Well, it wouldn't need to be covered under pain.

[00:17:36] Speaker 01:
It would be already under an existing exception under the policy.

[00:17:40] Speaker 01:
And I think that corrections officers who do not have

[00:17:43] Speaker 01:
medical training and are not doctors or nurses or physician assistant are not necessarily able to determine in the field when somebody says I'm cramping, can we take my restraints off, that they're able to do that.

[00:17:58] Speaker 01:
And I think under the policy for officers to make that decision on their own with no other further guidance,

[00:18:06] Speaker 01:
it has to be one of the exceptions listed in the policy.

[00:18:08] Speaker 05:
And just to be, so those exceptions, my question in reading those exceptions at 1531, the list of six exceptions there is I was trying to understand whether those were all chronic conditions or whether some of those could be triggered acutely if someone is having a contracture or other emergent situation.

[00:18:32] Speaker 05:
It sounds like

[00:18:33] Speaker 05:
What's the best read of that?

[00:18:34] Speaker 05:
Is this referring to pre-existing chronic conditions like deformities or things that could happen emergently?

[00:18:46] Speaker 01:
I believe it's probably, it could be either depending on the fact scenario, Your Honor.

[00:18:51] Speaker 00:
Does it matter whether the restraint, removal request is partial or total?

[00:19:01] Speaker 00:
In other words, it's equally the case if they want to take off this belly thing or whatever.

[00:19:08] Speaker 00:
I mean, even if things can remain in restraints, but not all of the restraints, the rules still apply.

[00:19:14] Speaker 00:
The policy doesn't specifically address that.

[00:19:19] Speaker 00:
Because in this instance, the request was apparently to reduce the restraints, not to remove the restraints.

[00:19:30] Speaker 01:
I'm sorry, I didn't catch that last part.

[00:19:31] Speaker 00:
The request is... Was to reduce the restraints, not to remove the restraints, but you don't know if that makes a difference.

[00:19:39] Speaker 01:
Correct, Your Honor.

[00:19:42] Speaker 00:
Okay.

[00:19:42] Speaker 00:
Can we speak briefly, just a minute, about the failure to train claim?

[00:19:49] Speaker 00:
You say there wasn't one, but in fact there was a paragraph in the complaint with regard to Moody, as I recall.

[00:19:57] Speaker 00:
So why isn't it properly in the case?

[00:20:00] Speaker 01:
The screening order didn't indicate that there was a failure to train claim?

[00:20:05] Speaker 00:
Well, that doesn't matter.

[00:20:06] Speaker 00:
If you look at the complaint, there is a whole paragraph about failure to train.

[00:20:10] Speaker 01:
With respect to Moody, and that's correct, and we recognize that in our brief.

[00:20:14] Speaker 00:
And therefore, there is a failure to train claim with respect to Moody.

[00:20:18] Speaker 00:
That's before us.

[00:20:21] Speaker 01:
Respectfully, I disagree, Your Honor.

[00:20:22] Speaker 01:
It was not litigated by the parties, and I don't

[00:20:28] Speaker 01:
When you go back and look at the briefing that was done and the summary judgment, that was not part of the claim that was presented.

[00:20:34] Speaker 05:
Maybe you should respond to it anyway.

[00:20:36] Speaker 03:
Yeah.

[00:20:36] Speaker 03:
Let's assume for a moment it's in front of us.

[00:20:38] Speaker 03:
We have to figure out whether or not he stated a failure to train claim as to either of the two defendants.

[00:20:46] Speaker 03:
As I read the complaint, it just says Moody failed to train.

[00:20:50] Speaker 03:
There's no facts in there, are there?

[00:20:53] Speaker 01:
No, Your Honor.

[00:20:54] Speaker 03:
And as to the director who was then

[00:20:58] Speaker 03:
I forget who was the director then, Ryan.

[00:21:01] Speaker 03:
It says he has run as the guy who ran the department.

[00:21:05] Speaker 03:
He was in, he was in charge of training.

[00:21:08] Speaker 01:
Correct.

[00:21:10] Speaker 03:
So, but there's, so if we were trying to determine de novo, whether that was sufficient to state a failure to train claim only apart from whether it was waived below or not litigated or anything else, what would your answer be?

[00:21:26] Speaker 01:
There was no failure to train language mentioned with respect to the former director at all.

[00:21:31] Speaker 01:
There was a preparatory allegation with respect to warden.

[00:21:35] Speaker 03:
I just said that I'm trying to find out what that what that leads us to if we're trying to figure out whether it states to claim.

[00:21:42] Speaker 01:
He failed to state a claim.

[00:21:43] Speaker 01:
There were no facts to support it and there was certainly no evidence of it.

[00:21:47] Speaker 03:
Thank you.

[00:21:50] Speaker 05:
Thank you Mr Davis.

[00:21:52] Speaker 05:
Mr Dunn.

[00:22:03] Speaker 02:
Good morning, Your Honors.

[00:22:04] Speaker 02:
Thank you, Brad Dunn, on behalf of Trinity Services Group and Director Shen, as to Count 1, the food nutritional inadequacy claim.

[00:22:12] Speaker 02:
I'll be quick here, as you could tell, Appellants didn't even mention the claim inside of their opening statement.

[00:22:21] Speaker 02:
But to make clear here, what is occurring is that Appellants are not arguing that the prison diet menu designed by Trinity is nutritionally inadequate.

[00:22:31] Speaker 02:
What they're arguing is that the prison diet menu that Appellant actually received due to actions by unknown prison workers somehow caused it to be nutritionally inadequate.

[00:22:44] Speaker 02:
And as Judge Tilburg correctly stated, Appellant simply has no medical record evidence, no expert testimony, no personal knowledge testimony, no admissible third party testimony showing that any policy of Trinity concerning the actual preparation

[00:22:58] Speaker 02:
of its adequately nutritious menu somehow caused it to magically become nutritionally inadequate.

[00:23:03] Speaker 03:
I can't tell from this record.

[00:23:05] Speaker 03:
Does Trinity only prepare menus or does it prepare the meals?

[00:23:10] Speaker 02:
It prepares the menus and then prison workers prepare the meals.

[00:23:14] Speaker 03:
Yes.

[00:23:17] Speaker 02:
And Palin also has no proper evidence linking

[00:23:20] Speaker 02:
his alleged medical issues and his ailments with the prison diet.

[00:23:24] Speaker 02:
It's all speculative and it's all negated by the most recent medical records which Judge Tilburg relied upon and this matter would show that a pillent is a healthy overweight male.

[00:23:34] Speaker 02:
And so looking through it all, there's simply, it's a simple solution and Tilburg got it correct.

[00:23:42] Speaker 02:
There's no proper evidence that was before him that was presented that could ever show

[00:23:48] Speaker 02:
any sort of link between the elements and the prison diet or to show that the diet he received was actually nutritionally inadequate.

[00:23:55] Speaker 02:
And therefore, summary judgment was proper and this Court should affirm.

[00:24:05] Speaker 02:
Any questions?

[00:24:06] Speaker 05:
I don't think we have questions.

[00:24:08] Speaker 05:
Thank you.

[00:24:08] Speaker 05:
Thank you.

[00:24:13] Speaker 05:
Mr. Dawson.

[00:24:18] Speaker 04:
So just a few quick points, Your Honor.

[00:24:19] Speaker 04:
First of all, Judge Berzon, with respect to your question, if the policy applies to removal of just some restraints or all restraints, if you look at paragraph 24 of the complaint, that's 5 Sanders ER 1015, it relays the specific request that Mr. Sanders made, which was to have one arm removed and then tied to the hospital bed.

[00:24:39] Speaker 04:
So he wasn't requesting a complete removal.

[00:24:41] Speaker 04:
He was only requesting partial.

[00:24:42] Speaker 04:
And the response that he got was that the policy covered even that, did not even allow partial removal.

[00:24:47] Speaker 03:
Mr. Dawson, can I take you back to your facial challenge?

[00:24:50] Speaker 03:
Yes.

[00:24:51] Speaker 03:
Because, you know, you might well have a good claim in this case against the guards, but I'm still trying to figure out why this policy is on its face unconstitutional.

[00:25:04] Speaker 03:
Certainly it is capable of constitutional applications, is it not?

[00:25:10] Speaker 04:
Yes.

[00:25:10] Speaker 03:
Well, doesn't that doom your facial attack?

[00:25:13] Speaker 04:
Well, it depends on

[00:25:15] Speaker 04:
I hate to keep coming back to this and I promise I'm not trying to obfuscate the question, but to me it's confusing to talk about what the policy means on its face because it's an ambiguous policy.

[00:25:24] Speaker 03:
Well, but what you're saying is that these two people, Moody and Ryan, should be held liable for promulgating an ambiguous policy.

[00:25:35] Speaker 03:
You don't have any evidence that they said, oh, let's draw it up this way so the prisoners will suffer.

[00:25:41] Speaker 03:
What you're saying is that the policy that was drawn up

[00:25:45] Speaker 03:
wasn't specific enough on some situations and therefore led the officers or people there not to loosen Mr. Sanders' restraints.

[00:25:57] Speaker 03:
But that's not facial unconstitutionality.

[00:26:00] Speaker 03:
It's just a policy that wasn't as carefully drawn as it might be.

[00:26:06] Speaker 04:
Perhaps we're talking past one another.

[00:26:08] Speaker 04:
I think the policy, even if you construe it to be constitutional, there's still a problem with the practice, the manner in which it's administered.

[00:26:15] Speaker 03:
So even if- Right, but see, that's an as-applied claim.

[00:26:18] Speaker 03:
So we're talking, and put aside for a second the failure to train issue, I understand.

[00:26:24] Speaker 03:
Are you really saying that, you're not saying this policy can't be constitutionally applied?

[00:26:29] Speaker 04:
I am saying that if the policy is that there is an obvious need exception, but that pain is not included within obvious need, that the policy is unconstitutional on its face.

[00:26:42] Speaker 00:
My understanding is that you can have an as-applied claim is what happened in a particular circumstance.

[00:26:50] Speaker 00:
But what the policy means is not an as-applied claim.

[00:26:57] Speaker 00:
In other words, if we can figure out

[00:26:59] Speaker 00:
what it means or what the, you can have a facial challenge to a policy, whether it's written down or not.

[00:27:08] Speaker 00:
And the policy we're being told in practice on the ground is that you can't do this, is that pain doesn't count for the obvious exception.

[00:27:21] Speaker 00:
And that's the policy, whether or not it is, whether you could read this particular piece of paper otherwise,

[00:27:29] Speaker 00:
They don't read it that way.

[00:27:30] Speaker 04:
Exactly right.

[00:27:31] Speaker 00:
And that's what you're challenging.

[00:27:32] Speaker 00:
Yes.

[00:27:33] Speaker 00:
The actual policy.

[00:27:34] Speaker 00:
Yes.

[00:27:35] Speaker 03:
But what you're also saying is that if what you're saying is the doctor exception, the exception where somebody says there's a medical need.

[00:27:44] Speaker 03:
So please let it, please change this.

[00:27:48] Speaker 03:
Um, see, I'm still trying to figure out that they put together a policy that doesn't cover this circumstance.

[00:27:57] Speaker 03:
It doesn't forbid anything.

[00:27:58] Speaker 03:
It just doesn't cover this circumstance.

[00:28:01] Speaker 03:
It's not a great policy.

[00:28:03] Speaker 03:
But I'm not sure why it's facially unconstitutional, why they're supposed to think in advance that there might be a problem that we didn't cover by this policy.

[00:28:13] Speaker 03:
And therefore, the people who promulgate it are liable for civil rights violations.

[00:28:20] Speaker 04:
And I think the answer to your question may be you can disaggregate the Eighth Amendment claim to a facial challenge to the policy and then a challenge to the practice or procedure, which may differ in various respects from the policy.

[00:28:32] Speaker 03:
Well, with respect to the practice and procedure, though, you don't have any evidence at all with respect to Moody and Ryan.

[00:28:39] Speaker 03:
All you have is the face of the policy.

[00:28:41] Speaker 04:
But I still think that under this court's decision in Starr against Baca and under the Redmond case I mentioned earlier, if the policy, by which I mean the mode in which the practice actually manifests in the real world, if that is unconstitutional, so unconstitutional as to be facially deficient under the Eighth Amendment, you can hold Moody and Ryan liable.

[00:29:02] Speaker 05:
Mr. Dawson, in order for it to be so, they have to have issued it with deliberate indifference, correct?

[00:29:12] Speaker 04:
No, I think that you can get a supervisory liability claim against them for the pattern and practice, regardless of what the piece of paper says.

[00:29:19] Speaker 05:
Well, that's where these things don't seem to line up.

[00:29:25] Speaker 05:
In order for, are there any allegations as to the named defendants in these claims, other than the fact that they issued the policy

[00:29:40] Speaker 05:
And that the policy says what it says, and the policy, as you say, is facially unconstitutional.

[00:29:46] Speaker 05:
But are there any other allegations other than they issued this policy?

[00:29:50] Speaker 04:
So yes, I think this maybe bleeds into the failure to train claims a little bit.

[00:29:53] Speaker 04:
So there is the paragraph 45, which talks about failure to train.

[00:29:57] Speaker 04:
Paragraphs 44 and 41 say that Moody and Ryan had various responsibilities with respect to training.

[00:30:04] Speaker 04:
And then to answer your question, Judge Hurwitz, about what the actual evidence would be on the failure to train claim, if it were stated.

[00:30:09] Speaker 04:
I think the best evidence there is paragraph 24.

[00:30:12] Speaker 04:
It's the same one I cited to Judge Berzon earlier.

[00:30:14] Speaker 04:
And what it says is that, I guess, according to the record, there's sort of a rotating cast of characters who guard Mr. Sanders when he's in the hospital.

[00:30:22] Speaker 04:
So it's two guards.

[00:30:24] Speaker 03:
But to the extent you're trying to argue that because they didn't loosen his restraints, they weren't trained properly, then it seems to me that's completely contrary to your argument that the policy prevented them from loosening his restraints.

[00:30:40] Speaker 03:
I mean, I don't think you, but, but put that aside for a second.

[00:30:42] Speaker 03:
I'm still looking to Moody and Ryan.

[00:30:45] Speaker 03:
You really don't claim they did anything but promulgate this policy.

[00:30:49] Speaker 03:
Correct.

[00:30:49] Speaker 03:
We do not claim they had personal subjective knowledge.

[00:30:51] Speaker 03:
You're not claiming that.

[00:30:52] Speaker 03:
And so to get back to Judge Johnstone's question, um, maybe they didn't, maybe this policy doesn't correctly cover the circumstance of pain, but what's the evidence that this is summary judgment?

[00:31:07] Speaker 03:
What's the evidence that they were deliberately indifferent, put aside the failure to trade issue for a moment, that they were deliberately indifferent to the pain of inmates and promulgating this policy?

[00:31:18] Speaker 04:
It is that the policy itself is so unconstitutional.

[00:31:21] Speaker 04:
So unconstitutional on its face.

[00:31:23] Speaker 04:
That is the argument.

[00:31:24] Speaker 03:
And because in this one limited instance, it doesn't specify what you should do.

[00:31:31] Speaker 04:
Well, I think it's quite

[00:31:34] Speaker 04:
Again, part of the confusion here has to do with, in order to tell you why exactly the policy is unconstitutional, we've got to know what the policy is.

[00:31:41] Speaker 04:
And they have, my friends on the other side, have repeatedly shifted their account of whether or not the obvious need exception exists, and if so, whether or not it covers pain.

[00:31:48] Speaker 03:
So let's assume that they didn't have a policy at all.

[00:31:51] Speaker 03:
Would that be deliberately delivered in difference?

[00:31:54] Speaker 04:
Yes, because the policy, with its absence of a provision for dealing with pain, would be so unconstitutional on its face as to violate the eighth amendment.

[00:32:01] Speaker 04:
I understand your argument.

[00:32:03] Speaker 04:
Look, Judge Berzoni, I appreciate your admonition that it really doesn't matter all that much what the district court said.

[00:32:08] Speaker 04:
What I will say is, as the argument this morning has demonstrated, this whole case is about the obvious need exception, what it covers, what it doesn't.

[00:32:15] Speaker 04:
The district court thought that the obvious need exception does not exist.

[00:32:18] Speaker 04:
So even if you don't want to reverse and remand with instructions that summary judgment should be denied, just some sort of exploration on remand of what this policy is, what it covers, what it doesn't, I think would be appropriate.

[00:32:32] Speaker 00:
To the brief issue, which you haven't actually, I mean to the fact that the summary judgment papers weren't admitted, there was a summary judgment motion and there was a late filed response which was disallowed.

[00:32:50] Speaker 00:
To remand wouldn't change the record.

[00:32:53] Speaker 04:
Well, but the complaint, I don't think that.

[00:32:56] Speaker 00:
Unless we decided that the disallowance was invalid, then it would change the record.

[00:33:01] Speaker 04:
Well, I mean, even if you're not going to look at the summary judgment materials, I think everything we have to say about the obvious need exception is stated on the face of the complaint.

[00:33:08] Speaker 04:
I just don't see how this summary judgment order, which says that the obvious need exception does not exist, could possibly be affirmed.

[00:33:16] Speaker 00:
At the very least, I think some sort of— It could be affirmed if we decided it did exist, and it was adequate.

[00:33:22] Speaker 00:
Then it could be affirmed.

[00:33:23] Speaker 04:
I think those are deeply factual questions that are best made by the district court in the first instance.

[00:33:27] Speaker 00:
But they're factual on a record.

[00:33:27] Speaker 00:
I mean, this is what summary judgment is.

[00:33:29] Speaker 00:
They're factual.

[00:33:31] Speaker 00:
But the district judge is supposed to find facts and we wouldn't find facts either and that's why I started the way I started.

[00:33:38] Speaker 00:
The record is whatever it is and we can look at it as well as the district judge can.

[00:33:43] Speaker 00:
So therefore it doesn't really matter what the district judge, if he left something out, we can put it back in and we can decide about it.

[00:33:52] Speaker 04:
the sort of initial threshold step of rehabilitating the argument so that you can then discover what the facts are is something that is the better course of action in my view would be to remand it back to the district court.

[00:34:03] Speaker 04:
Even if you're not saying summary judgment as a matter of law should not have been granted, just say to the district court, there's some sort of obvious need exception on the piece of paper.

[00:34:11] Speaker 03:
What does that mean?

[00:34:12] Speaker 03:
I guess I do want to continue this a little bit.

[00:34:15] Speaker 03:
But we review judgments.

[00:34:18] Speaker 03:
And so if we affirm the judgment, we're done.

[00:34:22] Speaker 03:
We don't affirm judgments and say, by the way, fix your reasoning, even though we agree that you should have granted a judgment.

[00:34:30] Speaker 03:
So either you have to convince us that the judgment needs to be vacated, in which case you can make whatever argument you want to the district court on remand, or we affirm.

[00:34:40] Speaker 03:
But I don't think there's a process under which we say, gee, we think you're right on the law, district judge, but you said something incorrect in your opinion, so we're sending it back to you to fix it.

[00:34:51] Speaker 03:
I don't understand that policy.

[00:34:53] Speaker 04:
Well, not to fix it.

[00:34:54] Speaker 04:
I mean, the order that you have in front of you misstates the contours.

[00:34:59] Speaker 03:
That's right.

[00:34:59] Speaker 03:
And so even if it does, the question is whether or not you've created an issue of material fact.

[00:35:05] Speaker 03:
If we conclude that you have not, then that mistake in the order makes no difference.

[00:35:11] Speaker 04:
I agree.

[00:35:11] Speaker 04:
Okay, so we're in the same wavelength.

[00:35:13] Speaker 04:
At times it appears that this is being litigated under something that is quasi akin to like a harmless judgment standard or something.

[00:35:18] Speaker 04:
I'm just saying that instead of trying to make these factual determinations, you could send it back down.

[00:35:22] Speaker 00:
But they're not factual determinations.

[00:35:24] Speaker 00:
That's the problem, because it's summary judgment.

[00:35:27] Speaker 00:
Anyway, can I just ask you exactly where in the record appears the written policies?

[00:35:36] Speaker 00:
Because I'm having trouble finding them in the briefs as written.

[00:35:39] Speaker 04:
Yes, Your Honor.

[00:35:41] Speaker 04:
The particular snippet we care about most, the obvious need exception, is at 4 Sanders ER 682.

[00:35:47] Speaker 04:
What about the other one?

[00:35:49] Speaker 04:
That's two pages later, the medical needs.

[00:35:52] Speaker 00:
682 somewhere.

[00:35:53] Speaker 04:
Yeah, 4 Sanders 684 is the medical need exception, 682 is the obvious need exception.

[00:36:03] Speaker 04:
If I could just say one quick thing about the failure to train claims.

[00:36:08] Speaker 04:
I think I heard my friends on the other side mention that this was not litigated in a failure to train posture below.

[00:36:13] Speaker 04:
If you look at their own summary judgment papers, and specifically to Sanders ER 74, they say that Sanders's allegation is that, quote, the lack of training by Moody encourages and allowed the blanket application of full restraints by officers.

[00:36:31] Speaker 03:
That's not your allegation.

[00:36:32] Speaker 03:
I read your complaint.

[00:36:33] Speaker 03:
All your complaint says is that the warden, Moody, was in charge of training and failed to properly train.

[00:36:44] Speaker 03:
And the complaint says as to the director, he was the big kaiuna and therefore ultimately responsible for training.

[00:36:52] Speaker 03:
There are no facts in the complaint about failure to train, are there?

[00:36:56] Speaker 04:
Well, I think the fact is that he failed to train.

[00:36:58] Speaker 04:
I mean, the inaction is the whole thing, right?

[00:37:00] Speaker 03:
Well, summary judgment again.

[00:37:02] Speaker 03:
So the state comes in and says, here's our seven-hour training module, and here's the materials that people are given.

[00:37:12] Speaker 03:
So a bold allegation that they failed to train

[00:37:17] Speaker 03:
is completely refuted by the record.

[00:37:21] Speaker 03:
And you don't make any other specific allegations.

[00:37:23] Speaker 04:
So I strongly disagree with that, if I could make a few points, Your Honor.

[00:37:27] Speaker 04:
First, if you look at the training materials that they produce, which would be competent at the summary judgment stage, they don't mention the obvious.

[00:37:33] Speaker 03:
That's not what I said.

[00:37:36] Speaker 03:
That's not what I said.

[00:37:37] Speaker 03:
You say he failed to train.

[00:37:40] Speaker 03:
That's what you said.

[00:37:41] Speaker 03:
Right.

[00:37:42] Speaker 03:
They did train.

[00:37:44] Speaker 03:
Now you're saying, well, the training could have been better, or the training should have been better, or something like that.

[00:37:50] Speaker 03:
But that was not the allegation you made below.

[00:37:53] Speaker 03:
You didn't say there was a failure to train on the obvious need exception.

[00:37:57] Speaker 03:
You just said he failed to train.

[00:38:00] Speaker 04:
Well, I think the complaint fairly read

[00:38:02] Speaker 03:
Klein just doesn't have any specifics in it at all.

[00:38:06] Speaker 03:
All you say about Moody is that he failed to train.

[00:38:10] Speaker 03:
And all you say about Ryan is that he was ultimately responsible for training.

[00:38:16] Speaker 04:
I don't think that's right, your honor.

[00:38:17] Speaker 04:
If you look at paragraph 24, it talks about the way that the failure to train manifests.

[00:38:22] Speaker 04:
And what it says is that when he was in the hospital, Mr. Sanders requested that the restraints be removed and the officers said no because of the blanket application.

[00:38:31] Speaker 03:
Okay.

[00:38:31] Speaker 03:
We said the officers may have been wrong.

[00:38:34] Speaker 03:
Right.

[00:38:34] Speaker 03:
That's it.

[00:38:35] Speaker 03:
The officers may, but you didn't sue them.

[00:38:36] Speaker 03:
You sued somebody for failing to train them.

[00:38:39] Speaker 03:
So where's, show me where the officers were trained that there was a blanket, a blanket

[00:38:46] Speaker 03:
Prohibition.

[00:38:48] Speaker 04:
So the allegation is that they were not trained on the obvious need exception.

[00:38:52] Speaker 04:
If you look at the materials... No, you do not allege that.

[00:38:56] Speaker 03:
You don't allege that.

[00:38:57] Speaker 03:
Find me where you say they were not trained on the obvious need exception in that paragraph.

[00:39:03] Speaker 04:
Well, he says paragraph 44, it says that they were not trained with regard to department order 705 mandatory directive that they modify application of mechanical strains when it is obvious that failure to do so would or is resulting in infliction of pain.

[00:39:17] Speaker 03:
So where is the evidence they were not trained?

[00:39:20] Speaker 04:
Well, I think it's it comes from two things.

[00:39:23] Speaker 04:
First is that Mr. Sanders in paragraph 24 of the complaint relays the fact that the reason the officers refused to remove the restraints was based on what they told him was a blanket application of the policy.

[00:39:34] Speaker 03:
Did they say they weren't trained that way?

[00:39:36] Speaker 04:
No, they said that it was the blanket.

[00:39:38] Speaker 04:
They said that was the policy.

[00:39:39] Speaker 04:
We're following the policy.

[00:39:40] Speaker 04:
And the second thing is, I think if you look at the training materials.

[00:39:42] Speaker 03:
Training materials that were provided don't specifically discuss the obvious need exception.

[00:39:48] Speaker 03:
Correct.

[00:39:48] Speaker 03:
But they do contain order 705, do they not?

[00:39:51] Speaker 03:
I don't think it's in the training materials, but we don't dispute that.

[00:39:53] Speaker 03:
It's clear that it was given to them, which has an obvious need exception.

[00:39:57] Speaker 04:
The training materials, if you look at them closely, actually misrepresent what department order 705 says.

[00:40:03] Speaker 04:
So again, only if you're looking at the materials that are available in the summary judgment record.

[00:40:08] Speaker 04:
They both don't mention the obvious need exception, and then if you look at four Sanders ER 629 to 59 as the whole policy, they're in fact wrong, the training materials, when they say that only the warden can authorize removal of restraints.

[00:40:23] Speaker 04:
That's at four Sanders ER 654.

[00:40:25] Speaker 04:
That's just wrong.

[00:40:26] Speaker 00:
So that's... So this leads into what I was going to ask.

[00:40:31] Speaker 00:
What the 705 says about removal of restraints

[00:40:37] Speaker 00:
It's not what's being represented here.

[00:40:39] Speaker 00:
It says that a medical need, it can be removed if a medical need for the removal of mental restraints is documented by a doctor.

[00:40:48] Speaker 00:
And it goes on about when it was required for the upper and lower restraints, they say what should be put in.

[00:40:52] Speaker 00:
And then it says complete removal of restraints for medical needs shall require telephonic authorization from the warden.

[00:41:00] Speaker 00:
It doesn't say that removal of, that the warden has to be

[00:41:06] Speaker 00:
has to authorize this partial restraint.

[00:41:12] Speaker 00:
This is what I was asking earlier.

[00:41:15] Speaker 00:
So what's been represented by both sides about what this order says is not accurate.

[00:41:22] Speaker 00:
Is that correct?

[00:41:23] Speaker 04:
Well, there are two exceptions to the policy.

[00:41:25] Speaker 04:
We're talking now only about the medical needs exception, which is on 684.

[00:41:28] Speaker 04:
I agree with your reading of that.

[00:41:30] Speaker 04:
What we're mainly focused on is the obvious need exception.

[00:41:33] Speaker 00:
I know that, but what I'm saying

[00:41:36] Speaker 00:
In terms, as this is written, if a doctor says that that restraint should be temporary, some of the restraint should be temporarily removed, you don't need anything from the warden or deputy warden.

[00:41:50] Speaker 04:
If you have that special needs order, correct.

[00:41:52] Speaker 03:
I agree.

[00:41:53] Speaker 03:
So why is that facially unconstitutional?

[00:41:56] Speaker 04:
Well, because there will be many situations in which a special... In which a doctor would say, no, they don't need to be removed, but you think they need to be removed.

[00:42:04] Speaker 03:
No, in which a doctor couldn't be reached quickly enough, for example, if somebody's in the van... Now you're talking about isolated circumstances as opposed to facial... Well, anyway, you've done a good job.

[00:42:16] Speaker 05:
I don't mean... Mr. Dawson, unless my colleagues have any additional questions, we've been quite generous on rebuttal.

[00:42:22] Speaker 05:
Thank you for your time.

[00:42:23] Speaker 05:
Thank you.

[00:42:28] Speaker 05:
Yes, and thanks again for taking the appointment.

[00:42:32] Speaker 05:
We appreciate your argument, both sides' excellent arguments in this case, and the case will be submitted.