[00:00:00] Speaker 01: We'll move on to the next case. [00:00:02] Speaker 01: I hope I'm pronouncing this correctly. [00:00:03] Speaker 01: Sernas versus Cantrell, the warden. [00:00:35] Speaker 00: Good morning, Your Honors. [00:00:36] Speaker 00: May it please the Court? [00:00:37] Speaker 00: My name is Audrey Miller, representing Mr. Adam Cernas. [00:00:42] Speaker 00: The issue on appeal is whether a reasonable jury can find that it is more likely than not that defendant appellees' deliberate indifference in their failure to conduct an adequate investigation into Mr. Cernas' warnings of likely assault by unknown persons within the general population of the prison [00:01:04] Speaker 00: was a proximate cause of Mr. Cernus' subsequent serious injury from assault by unknown persons within the general population a mere 15 minutes after being placed back in that population by defendants appellees. [00:01:20] Speaker 00: The trial court already found that there were genuine issues of material fact with respect to Mr. Cernus' demonstration of [00:01:31] Speaker 00: the harm, that the harm that Mr. Cernas suffered was sufficiently serious, that defendants were placed, that defendants were deliberately indifferent to Mr. Cernas' safety in their inactions in conducting an adequate investigation. [00:01:49] Speaker 03: I think what the district court said, what there's a reasonable fact finder can conclude what you just described. [00:01:59] Speaker 03: Correct, Your Honor. [00:01:59] Speaker 03: That they may have acted with deliberate indifference, knowing the potential threat, and that they didn't investigate it adequately. [00:02:08] Speaker 03: Correct, Your Honor. [00:02:09] Speaker 03: A reasonable fact finder could find that. [00:02:11] Speaker 03: Sort of underside of that is a reasonable fact finder could find to the contrary. [00:02:16] Speaker 00: That's absolutely correct. [00:02:17] Speaker 03: What the district court seemed to rely upon was the fact that your client could not identify either who approached him when he was returned to the unit or who actually attacked him. [00:02:29] Speaker 03: Can you deal with that, please? [00:02:32] Speaker 00: Absolutely, Your Honor. [00:02:34] Speaker 00: Under Farmers V. Brennan, the identity of the threat does not need to be known. [00:02:42] Speaker 00: In Farmers, we had a sort of nebulous threat from, you know, a known, rather nebulous threat, and we had assailants, the identity in that case, I believe the identity of the assailants was known, [00:02:57] Speaker 00: Here it's not and it could not be. [00:03:00] Speaker 00: However, it does not have to be under Farmer Street Brennan because the defendants knew of the risk of harm. [00:03:17] Speaker 00: A reasonable trier of fact can find from the circumstances that are in evidence that [00:03:28] Speaker 00: there is a causal nexus between the harm that was threatened, which they can certainly find, and certainly they can find the other way too, but they can find that the harm threatened was, you know, was unreasonably and unreasonable and excessive. [00:03:50] Speaker 00: And they can also find that there's a causal nexus between that harm and [00:03:57] Speaker 00: the harm that Mr. Cernus actually suffered. [00:03:59] Speaker 03: I take it, and correct me if I'm wrong, that there are no cases out there that say that the mere fact that a person in this situation cannot identify their assailant is fatal to the claim. [00:04:17] Speaker 00: I was unable to find any. [00:04:17] Speaker 00: Is that correct? [00:04:18] Speaker 03: From your research? [00:04:20] Speaker 00: Yes, Your Honor, I was unable to find any. [00:04:21] Speaker 03: We'll ask the same question of the other side, but go ahead. [00:04:26] Speaker 02: But there's no case that says, or is there, that that's a requirement? [00:04:33] Speaker 00: No, Your Honor. [00:04:34] Speaker 00: There's no case that is completely on all fours that I was able to find in this situation. [00:04:39] Speaker 00: I did find cases that were unpublished that applied farmer somewhat similarly to cases where if you'll [00:04:56] Speaker 01: The cases that come to my mind are Farmer, I think is a pretty good case for you. [00:05:02] Speaker 00: Right. [00:05:03] Speaker 01: There's also this case called Berg. [00:05:04] Speaker 00: Yes, Berg v. Kenachow was also somewhat on point because there the identity of the assailants was also that in that in Berg [00:05:17] Speaker 00: The standard did not require the guard or the official to believe to a moral certainty that one inmate intended to inflict attack, intended to attack another at a given place or time. [00:05:32] Speaker 00: So there again, we don't need to know which inmate needs to attack the other inmate. [00:05:39] Speaker 00: There's not necessarily anything that I found on point where the ultimate identity of the attacker was unknown. [00:05:48] Speaker 00: However, we do know there are facts and evidence from which a reasonable jury could find that there is a causal nexus between an unknown assailant and a risk of some nebulous harm because we do have our prisons expert who talks about how [00:06:09] Speaker 00: The threatened harm can be linked to, you know, you don't necessarily need to know the identity of the informant or the identity of the potential attackers or the actual attackers from the inmate who is attacked or threatened in order, you know, the prison officials don't need to know that. [00:06:38] Speaker 00: They know very, very well that the inmate population has its own rules about snitches, that there's this protocol within there that Mr. Adams was talking about. [00:06:56] Speaker 01: I imagine the analogy comes to my mind is if I'm in prison and a kite comes underneath my door saying, you know, if you come to the lunchroom, we're going to get you. [00:07:07] Speaker 01: And I have no idea who sent that to me. [00:07:11] Speaker 01: But I know if I go to the lunchroom, they're going to get me. [00:07:13] Speaker 01: And so if I give that kite to the guards and they say, well, time to go to the lunchroom, even though I don't know who it is, the guards are on notice of some kind that something very bad might happen to me if I go to the lunchroom. [00:07:24] Speaker 01: I mean, that seems like that is this case, isn't it? [00:07:26] Speaker 00: That is exactly this case, Your Honor. [00:07:28] Speaker 00: and if the guards then drag me kicking and screaming to the lunchroom and somebody attacks me from behind and hits me in the eye and I never actually see who the attacker is, well the guards certainly do, a reasonable jury could certainly find that the harm is linked even if the identity of the attacker is never known. [00:07:49] Speaker 01: It seems to me that the better the attacker is the less likely you could bring the claim because they put a bag over your head and hit you [00:07:55] Speaker 01: in the back of the head with a sock full of batteries, I'm not going to know who attacked me. [00:08:00] Speaker 01: But if they're sloppy about it, then I would. [00:08:02] Speaker 01: It seems to me that that can't be the determination whether this case goes forward. [00:08:05] Speaker 01: It was how good the attackers were. [00:08:09] Speaker 00: Right, Your Honor. [00:08:10] Speaker 00: The attackers, the identity of the attackers is not the important part here. [00:08:16] Speaker 00: The identity, the question at issue is whether a reasonable jury can find that [00:08:25] Speaker 00: 50% and a drop, that it's more likely than not that the unreasonable risk of harm is related to the attack that happened as soon as the action that Mr. Cernus said would happen if they placed him in general population happened. [00:08:45] Speaker 00: 15 minutes after being placed in the general population, he was attacked just like he said he would be. [00:08:52] Speaker 00: I forgot to address it at the beginning. [00:08:54] Speaker 00: May I save the address for rebuttal? [00:08:55] Speaker 01: Oh, yeah, absolutely. [00:08:56] Speaker 01: You want to reserve? [00:08:56] Speaker 01: Sure. [00:08:57] Speaker 00: Thank you, Your Honor. [00:09:15] Speaker 04: Good morning, Your Honors. [00:09:17] Speaker 04: May it please the Court, my name is Adam Polson. [00:09:19] Speaker 04: I represent Appellee's Deputy Warden Cathy Cottrell. [00:09:22] Speaker 04: and Corrections Officer Lisa Collers. [00:09:25] Speaker 04: Appellant cannot identify who asked him to hold onto drugs or who hit him. [00:09:30] Speaker 04: However, he knows enough to say that the groups are not the same. [00:09:34] Speaker 04: He admits that the people who asked him to hold onto drugs are not the same people that later hit him, and he cannot prove that the reason he was attacked was related to his refusal to hold drugs. [00:09:48] Speaker 04: It is unfortunate that Appellant was assaulted [00:09:51] Speaker 04: However, he cannot show that appellees were deliberately indifferent to him. [00:09:55] Speaker 03: Do you agree there's no case law saying the mere fact that he cannot or would not identify his assailants is fatal to his claim? [00:10:07] Speaker 04: There's no case. [00:10:07] Speaker 03: Can you start with a yes or no? [00:10:09] Speaker 04: There's no case directly a point on that, but the issue here is that the district court was correct that there's no causal link, there's no proximate causal link here. [00:10:21] Speaker 04: We don't know why appellant was hit. [00:10:24] Speaker 02: What's missing in this case from establishing proximate cause? [00:10:32] Speaker 02: What more is needed? [00:10:35] Speaker 04: We have to look at what the original foreseeable risk was. [00:10:39] Speaker 04: And at that point, he was, an appellant was saying that he was afraid because three or four people that he could not identify over the course of a year asked him to hold on to drugs. [00:10:52] Speaker 04: That's the original foreseeable risk here. [00:10:54] Speaker 03: But we're here on a district court determination, as we learned in your friend's argument, the district court determining [00:11:02] Speaker 03: that a reasonable fact finder could determine that your clients did not investigate the threat. [00:11:15] Speaker 04: No, you're correct, Your Honor. [00:11:16] Speaker 04: We did concede that for purposes of this appeal, but that's not the issue that we see here, because Appellant's position is that the group that threatened him is different from the group that hit him. [00:11:29] Speaker 04: That's the issue that we see here. [00:11:32] Speaker 04: Of course, Appellant knows enough. [00:11:36] Speaker 03: Why would that disparity, in fact, be fatal to his claim as a matter of law? [00:11:44] Speaker 04: Because he knows enough to know that these groups are different. [00:11:47] Speaker 04: The groups that asked him to hold onto drugs are very different than the group that... Maybe he's afraid of both of them. [00:11:54] Speaker 04: Well, that was an argument that was brought up in the briefing here. [00:11:59] Speaker 04: That's not what he testified to. [00:12:01] Speaker 04: There are procedures if, you know, to add someone to a do not house with list, all sorts of mechanisms in prison to protect someone in those circumstances. [00:12:10] Speaker 04: But he did not, the record below, before us is not him saying, I know who it is and I'm afraid to reveal those people. [00:12:20] Speaker 04: Go ahead. [00:12:26] Speaker 04: He did not provide any relevant information after he was hit. [00:12:31] Speaker 04: He did not say he was provided the movement board. [00:12:34] Speaker 04: He could not identify who it was that hit him or the people that led to the assault. [00:12:42] Speaker 02: The movement board is referred to several times in the briefing, but I'm not exactly certain what's that supposed to show. [00:12:50] Speaker 02: Is that like a board of photographs or what? [00:12:54] Speaker 04: Yes, Your Honor, that's my understanding. [00:12:56] Speaker 04: So he was, after the assault, you know, it would be a criminal issue. [00:13:01] Speaker 04: The investigators tried to ask him and trying to identify who was involved in this, either who hit him or who was part of the sequence that told him where to go. [00:13:11] Speaker 03: Maybe he's afraid if he identifies them that he'll get attacked again. [00:13:16] Speaker 04: Well, that's why I mentioned, Your Honor, that's why we do not house with lists all sorts of protections for the situation. [00:13:24] Speaker 04: Certainly, if there was a criminal act that took place here and these inmates were the inmates that attacked him. [00:13:30] Speaker 03: What you're saying is that if this went to a jury, a reasonable jury could conclude that he didn't want to identify these people for some internal reason to himself personally. [00:13:46] Speaker 03: and therefore he should not recover. [00:13:49] Speaker 03: That's entirely possible. [00:13:51] Speaker 04: That's an argument. [00:13:51] Speaker 04: It's not part of the record so far. [00:13:53] Speaker 04: But again, Your Honor, we have to look at what the original foreseeable risk was and what the officers knew. [00:13:58] Speaker 03: Well, if we went back to a jury, there would be a full evidentiary presentation, correct? [00:14:04] Speaker 04: Conceivably, yes, Your Honor. [00:14:05] Speaker 03: And maybe a reasonable jury concludes that he's lying when these pictures are shown to him and he won't identify his, either the people that [00:14:15] Speaker 03: approached him or the people that actually attacked him. [00:14:18] Speaker 03: And if that's the result, you win, the other side loses. [00:14:23] Speaker 04: Here the district court was correct in finding the evidence was too thin to let this even to get to a jury. [00:14:28] Speaker 04: And that's, I think, the correct approach here because we cannot show, sorry, if we look at the original foreseeable risk, we know about drugs. [00:14:39] Speaker 04: That's what was presented. [00:14:42] Speaker 04: the evidence of why he was hit is not related to drugs per appellant. [00:14:47] Speaker 04: He's given up on that issue because he says these groups are not related. [00:14:51] Speaker 04: They're not the same. [00:14:52] Speaker 04: He doesn't know who is in either group. [00:14:55] Speaker 04: That's his testimony. [00:14:56] Speaker 04: But he knows they're not the same people. [00:14:58] Speaker 04: So there's no connection between those two subsets of groups. [00:15:04] Speaker 04: Is it possible that appellant was attacked for some other reason that we don't know, which is what the court supposed? [00:15:10] Speaker 04: Yes. [00:15:11] Speaker 04: Is it possible that [00:15:12] Speaker 04: You know, Pellant started a fight. [00:15:14] Speaker 04: You know, honestly, we don't know. [00:15:16] Speaker 04: And the reason is because Pellant has not provided any information. [00:15:19] Speaker 03: If those things are true, a reasonable fact finder would rule in your client's favor. [00:15:26] Speaker 04: I would hope so, Your Honor. [00:15:27] Speaker 04: But I think the district court was correct in finding there was no evidence even to get to a trial on this because there was really no evidence. [00:15:36] Speaker 04: Again, the Pellant knew enough that knows that these groups are not connected. [00:15:42] Speaker 04: That's the issue that the district court found here on that issue. [00:15:47] Speaker 04: Again, the appellant said leading up to this, while he was in refused housing unit, it was three or four people of different ethnicities, different heights, couldn't identify tattoos, couldn't identify anything about those people. [00:16:07] Speaker 04: But he said that the people that attacked him were entirely different. [00:16:11] Speaker 04: And the people that showed him the maze of where to go to when he was hit were different. [00:16:18] Speaker 04: And he couldn't identify either group. [00:16:20] Speaker 04: And that's the issue in the case here is that there's just not enough evidence here to proceed to a trial on that issue. [00:16:31] Speaker 04: Ms. [00:16:31] Speaker 04: Miller mentioned Farmers and Berg. [00:16:33] Speaker 04: I think those cases are a little bit distinguishable on these issues. [00:16:36] Speaker 04: On Berg, the, we know in Berg, the fifth defendant, we know who that was. [00:16:48] Speaker 04: It was a cell partner. [00:16:49] Speaker 04: And if we had to even add information here, we could get to, there could be maybe an issue of fact here. [00:16:57] Speaker 04: In Brennan, the farmers would be Brennan, this inmate defarmer was vulnerable to the entire population. [00:17:04] Speaker 04: In our case here, [00:17:06] Speaker 04: This is limited to the foreseeable risk relates to three or four inmates of different ethnicities that asked plaintiff or appellant to hold on to drugs and he refused to do so. [00:17:17] Speaker 04: So I think those cases are very distinguishable here that they're not relevant to this analysis on this exact issue. [00:17:33] Speaker 04: Again, there was some comment about snitches. [00:17:37] Speaker 04: Again, appellant had a choice, and of course the prison's there to help put, add people to do not house with list, which appellant already had people on his do not house with list. [00:17:51] Speaker 04: He's been in prison for 19 years, I believe, right now. [00:17:54] Speaker 04: He knows how the system works. [00:17:56] Speaker 04: Certainly, if there was somebody that he was afraid of, [00:17:59] Speaker 04: we could identify those people and make sure that appellant is not housed with them. [00:18:10] Speaker 04: The other issues here, I think there was a comment about investigation. [00:18:15] Speaker 04: Again, [00:18:16] Speaker 04: I think that that issue is not relevant here because the issue really relates to the foreseeable risk here. [00:18:26] Speaker 04: And that issue is, again, Appellant cannot identify these two people. [00:18:31] Speaker 04: He cannot make a connection to those two people, to these two sets of groups. [00:18:36] Speaker 04: He was given the opportunity to identify people in these two groups. [00:18:41] Speaker 04: He did not. [00:18:42] Speaker 04: In fact, on the first group, he says it was [00:18:44] Speaker 04: People that were asking him to hold on to drugs were over the course of almost a year. [00:18:49] Speaker 04: So he had multiple opportunities in that year to identify who was afraid, who was threatening him and seek protection. [00:18:59] Speaker 04: And he chose not to do that for whatever reason. [00:19:02] Speaker 04: He's not vulnerable to the entire population. [00:19:05] Speaker 04: He's vulnerable maybe to three or four people. [00:19:07] Speaker 04: And that's, that was at least the risk that was known prior to appellant leaving refused to, to house the housing unit. [00:19:17] Speaker 04: I see my time's up. [00:19:18] Speaker 04: Is there any more questions? [00:19:19] Speaker 03: Can I ask a quick representational question? [00:19:22] Speaker 03: You're not with the Arizona attorney general's office? [00:19:24] Speaker 04: I am not. [00:19:25] Speaker 04: I'm a private law firm. [00:19:27] Speaker 03: Okay. [00:19:27] Speaker 03: And how did you come to defend this case? [00:19:31] Speaker 03: Just a matter of interest. [00:19:32] Speaker 04: Yeah, you know, I think there's my personal opinion on this. [00:19:36] Speaker 04: I think sometimes it's hard to find. [00:19:38] Speaker 04: There's staffing issues, so sometimes a lot of cases get kicked out to other law firms. [00:19:42] Speaker 03: Good for you. [00:19:43] Speaker 04: Okay. [00:19:43] Speaker 03: Thank you. [00:19:44] Speaker 03: Thanks for your argument. [00:19:56] Speaker 00: I want to address the issue of [00:20:01] Speaker 00: whether this was the same people between who made the threats and who attacked Mr. Cernus. [00:20:09] Speaker 00: First of all, they don't have to be the same people to be related. [00:20:13] Speaker 00: My colleague here has implied that these are completely unrelated attacks and that Mr. Cernus admitted that. [00:20:20] Speaker 00: He absolutely did not. [00:20:22] Speaker 00: And in fact, if we look at three ER [00:20:26] Speaker 00: He's talking about a general amount of hatred towards him at line 19 there. [00:20:34] Speaker 03: They, as in many people of a nebulous group in the general population, he speaks- How do you respond to your friend's argument that by failing to identify, even when shown pictures and names, et cetera, who his assailants were, [00:20:57] Speaker 03: it deprived the institution and its officials from the ability to sequester him, place him in different places, et cetera. [00:21:07] Speaker 03: How do you respond to that? [00:21:09] Speaker 00: That's certainly an inference that the jury could draw. [00:21:14] Speaker 00: The jury could also draw the reasonable inference that because my friend pointed out that these [00:21:27] Speaker 00: you know, that we don't know why he was attacked necessarily, and that these groups that, my thing's flashing. [00:21:38] Speaker 00: Okay. [00:21:40] Speaker 00: The jury could draw the inference that the groups are identifiable and whether or not Mr. Cernus positively identified anybody and, [00:21:54] Speaker 00: the defendants are attempting to use their own deliberate indifference as a shield. [00:22:00] Speaker 00: Both are possible and both are jury questions. [00:22:04] Speaker 01: All right. [00:22:05] Speaker 01: Thank you, counsel. [00:22:05] Speaker 01: Thank you very much to both of you for your argument. [00:22:08] Speaker 01: Interesting discussion and interesting about client development in the prison world. [00:22:12] Speaker 01: I had no idea.