[00:00:12] Speaker 02:
Your honors, may it please the court, I'm certified law student Jack Stevens on behalf of the appellant Sean Shelter.

[00:00:31] Speaker 02:
I'd like to reserve two minutes for a vote.

[00:00:48] Speaker 02:
those he had named in his grievance materials.

[00:00:50] Speaker 02:
Mr. Shelter's grievance, which properly adhered to IDSC procedure, notified defendants of a substantial risk of serious harm and gave them ample opportunity to take protective action, was plainly sufficient to satisfy the PLRA exhaustion requirement.

[00:02:09] Speaker 02:
The prison administrators did respond at several junctures throughout the informal process to say you have no documented safety concerns or you should process these complaints to investigations.

[00:02:40] Speaker 01:
But by the end of the process, by the time that he had appealed, there were formal grievances.

[00:02:46] Speaker 01:
So maybe this goes to the merits, but wouldn't that all be evidence that would be relevant to whether or not the conduct of the officials amounted to deliberate indifference?

[00:02:55] Speaker 01:
Yes, Your Honor, I do think that is a merits question.

[00:03:10] Speaker 02:
is that they didn't take protective action in response to the risk that they identified.

[00:03:13] Speaker 02:
They did respond to his concerned forms, grievances, and appeal, but none of those actions were responsive or took seriously.

[00:03:20] Speaker 01:
And was there also in the record some concern about whether or not he was trying to use this process to manipulate cell block assignment so that he could maneuver back into a pod where he had an inmate that he had some romantic interest in?

[00:03:36] Speaker 01:
Your Honor, that is included in

[00:04:01] Speaker 01:
were deliberately indifferent.

[00:04:03] Speaker 01:
Yes, Your Honor.

[00:04:38] Speaker 00:
Why didn't he need to grieve specifically that incident?

[00:04:42] Speaker 02:
Your Honor, this goes to the precise contours of a Nathenlin violation.

[00:04:46] Speaker 02:
So, Per Farmer, one must show that there was a substantial risk of serious harm, and the defendants consciously disregarded that risk.

[00:04:53] Speaker 02:
Mr. Schultz has done so here.

[00:04:54] Speaker 02:
And at least by the end of the appeal, defendants had consciously disregarded that risk.

[00:04:58] Speaker 02:
And so, in his materials, he was very clear that if there was no particular action taken, he would be attacked.

[00:05:12] Speaker 03:
but so it does seem though they did investigate his grievance though they and they concluded there was no basis for that safety concern that that was more than an attempt to manipulate the housing so why doesn't that cut off the chain of this continuing violation that you're trying to

[00:05:56] Speaker 03:
And then, you know, then down the line, you know, they might have been wrong with that, but that's not what the purpose of grievances is, whether or not they're right or wrong in determining, you know, investigating these concerns.

[00:06:07] Speaker 03:
But, you know, the fact that he grieved, they investigated, concluded no concern, and then he gets attacked later, why doesn't that constitute something different that requires a different notice?

[00:06:46] Speaker 03:
The fact that they got the grievance investigated were clearly wrong in their determination.

[00:06:52] Speaker 03:
To me, that just seems like it would cut off the continuous chain or continuous violation that you're alleging.

[00:06:59] Speaker 03:
Two responses, Your Honor.

[00:07:00] Speaker 02:
First, I think that to echo my conversation with

[00:07:21] Speaker 03:
I'm not saying that it's continuous, but there's a chain that cuts it when the prison officials investigated the issue and concluded there's no reason to continue.

[00:07:32] Speaker 03:
So that seems to cut off the investigation or that continuous violation, right?

[00:08:01] Speaker 03:
And so why doesn't that require your client to provide another notice?

[00:08:33] Speaker 03:
was inadequate, right?

[00:08:36] Speaker 03:
So he grieved that

[00:09:01] Speaker 02:
quite insignificant.

[00:09:02] Speaker 02:
I understand that would be more of a rights issue.

[00:09:04] Speaker 02:
I think the point here is that nothing changed between the time that Mr. Schultz initially grieved and the attack, and there was nothing he could do to give the defendants more notice of the risks to which he was subjected.

[00:09:15] Speaker 01:
But the attack came from an inmate that he hadn't had any contact with before, is that correct?

[00:09:21] Speaker 01:
That's correct, Your Honor.

[00:09:22] Speaker 01:
And his theory was that the people that he did have contact with before had hired the other inmate to assault him?

[00:09:29] Speaker 01:
Yes, yeah.

[00:09:40] Speaker 00:
Mr. Christensen.

[00:09:42] Speaker 00:
Mr. Gray.

[00:09:44] Speaker 00:
Oh, sorry.

[00:09:46] Speaker 00:
I'm looking at the party's name and not the leader's name.

[00:09:49] Speaker 04:
Thank you.

[00:10:27] Speaker 04:
But even if this court were to adopt his theory of a continuing

[00:11:17] Speaker 01:
to address the assault

[00:12:11] Speaker 01:
location in the prison or even to a different institution.

[00:12:14] Speaker 04:
That information is not on the record, Your Honor.

[00:12:16] Speaker 04:
Ultimately, as your questions pointed out, Your Honor, at SCR 38, you do see that the prison did in fact, if this court's concerned about the merits, did take some action after his initial grievances and prior to the assault by giving him what is called a modified form of relief.

[00:12:34] Speaker 04:
It is in part, I mean, the warden

[00:12:47] Speaker 01:
subject to a criminal investigation for being involved in an internal extortion rate.

[00:12:54] Speaker 01:
Wasn't that why he was isolated so he couldn't interfere with the interviews of the other suspects?

[00:13:00] Speaker 04:
Your Honor, yes, the warden's comments reflect that, but ultimately that's not relevant here.

[00:13:04] Speaker 04:
The question is whether or not Mr. Shelter could have grieved the assault after circumstances

[00:13:18] Speaker 01:
But clearly, based on his prior grievances, the prison officials understood that he had safety concerns.

[00:13:28] Speaker 01:
Maybe that could be said of every inmate in prison, and I know our prison officials try to

[00:13:56] Speaker 04:
administrative remedies by walking into a prison and perhaps understandably fearing having some sort of apprehension about the prison environment.

[00:14:04] Speaker 04:
Thankfully the Supreme Court has elucidated in Jones versus Bach and as this court noted in Griffin versus Arpaio that the specificity and when a claim is actually presented under the PLRA is dependent on the prison regulations at issue.

[00:14:17] Speaker 04:
In this case as this court can note at ER

[00:14:27] Speaker 00:
in his appeal.

[00:14:31] Speaker 00:
So he grieved, he was denied, he appealed the grievance.

[00:14:34] Speaker 00:
And in his appeal he states, I give you notice of the situation I'm in and you're purposely failing to act to protect me.

[00:14:41] Speaker 00:
I'm going to refuse to pay their extortion and the attack and or sexual assault will be because of ISCC officials failing facilitating the assault.

[00:14:50] Speaker 00:
That's pretty specific.

[00:14:51] Speaker 00:
And as part of that he also says, I've given you the names of people who are threatening

[00:14:57] Speaker 00:
So in terms of specificity, what more did he need to say to put the prison on notice of the situation he thought he was facing that turns out he was right he was facing?

[00:15:08] Speaker 04:
I would quibble with the idea that he was right that he was facing this specific threat.

[00:15:12] Speaker 00:
He ultimately... Well, I guess we have to at this point sort of accept his allegations, and his allegations are that one of the three people that he specifically named paid someone

[00:15:30] Speaker 04:
his favor and he has evidence of that.

[00:15:33] Speaker 00:
And you haven't contested it either?

[00:15:34] Speaker 00:
I haven't seen anything contesting that.

[00:15:38] Speaker 03:
That the assault actually happened, no your honor.

[00:15:40] Speaker 03:
No, that the assault was perpetrated by someone paid by the three named defendants, I mean detainees, no your honor, and although we're reserving that issue, I mean theoretically if this goes back on the merits we would warn

[00:16:19] Speaker 04:
young and now Willard.

[00:16:21] Speaker 04:
Gekker is nowhere to be seen.

[00:17:00] Speaker 00:
But do you have a case that specifically tells us that we have to have a named person before we can establish exhaustion for a failure to protect cases?

[00:17:33] Speaker 04:
however, in general.

[00:18:07] Speaker 00:
I would have to say on August 15th I'm going to be attacked.

[00:18:45] Speaker 04:
July, no, Your Honor.

[00:18:46] Speaker 04:
The July grievance, which does come afterwards, one is also unspecific.

[00:18:50] Speaker 04:
He says, I'd like to file a late grievance because of an unspecified safety concern.

[00:18:53] Speaker 04:
We'll take it as true that it was related, as he says in his amended complaint and in his affidavit on summary judgment, that it's related to this assault.

[00:19:02] Speaker 04:
But ultimately, he doesn't give prison officials any indication as to why he wants to file a late grievance.

[00:19:08] Speaker 04:
And I apologize, Your Honor, for the questioning.

[00:19:29] Speaker 04:
even if you believe that the

[00:20:17] Speaker 03:
I'm gonna be attacked if I don't pay.

[00:20:19] Speaker 03:
He gets attacked on April 17th, I believe.

[00:20:24] Speaker 03:
And it seems like precisely for the same reasons that he said he was gonna be attacked.

[00:20:27] Speaker 03:
Why isn't this a continuing violation?

[00:20:29] Speaker 04:
Because, Your Honor, I would look at SCR 38 and see what exactly it is that he, and I say amount of time, may I briefly conclude?

[00:20:37] Speaker 04:
Yeah.

[00:20:37] Speaker 04:
I have a couple, if you don't mind.

[00:20:40] Speaker 04:
Okay.

[00:20:42] Speaker 04:
And so what he actually says is,

[00:21:20] Speaker 03:
Is that right?

[00:21:21] Speaker 03:
I'm looking at PR 117.

[00:21:59] Speaker 04:
agree with your honor that the fact that prison officials investigated is in fact one of the breaks in the chain and in addition to the fact that circumstances changed and you know you have their own case Johnson versus Johnson from the Fifth Circuit which says on footnote 13 that even under one of their cases on a continuing violation if you have a circumstance and the circumstances that were

[00:22:45] Speaker 04:
ask you for.

[00:22:47] Speaker 00:
Thank you, counsel.

[00:22:51] Speaker 00:
Mr Stevens will give you the two minutes for your rebuttal.

[00:23:00] Speaker 02:
Your honors, I'd like to start by returning to the record to address the concern that Mr. Shelter did not name the assailant and his grievance materials.

[00:23:07] Speaker 02:
Opposing counsel

[00:23:30] Speaker 01:
That's what he alleges.

[00:23:32] Speaker 02:
Correct, Your Honor.

[00:23:33] Speaker 02:
But another one of my points is that that is included in a verified amendment complaint, which can be treated as an affidavit for purposes of challenging summary judgment.

[00:23:40] Speaker 02:
And another point in rebuttal, Judge Boutel, you have the concern that the investigation cuts off the continuation of the violation.

[00:23:50] Speaker 02:
Exactly.

[00:23:50] Speaker 02:
There's a break in the chain of the continuous violation.

[00:23:54] Speaker 02:
Right.

[00:24:04] Speaker 02:
If that were to break the chain, then no continuing violation would ever make it to court.

[00:24:10] Speaker 02:
That would be the response.

[00:24:11] Speaker 00:
The only way that would work is if the prison officials, when they do this, sometimes just completely ignore a grievance or a kite that is filed and presented properly.

[00:24:22] Speaker 03:
Yes, Ron.

[00:24:23] Speaker 03:
Well, I guess because my concern is some of the other cases that have continuous violations are usually like prison policies.

[00:24:29] Speaker 03:
Like, you know, Hellel Foods, I think, is one of the cases cited.

[00:25:29] Speaker 00:
Thank you very much, counsel, for your helpful arguments.

[00:25:33] Speaker 00:
And I would just also specifically say thank you to the UCLA Law School and your clinic.