[00:00:00] Speaker 03:
Good morning, and welcome to the Ninth Circuit.

[00:00:04] Speaker 03:
Judge Thomas and I would like to extend a special welcome to Judge Malloy from the United States District Court for the District of Montana, who is sitting with us today.

[00:00:13] Speaker 03:
We are very grateful for your willingness to come and help us with our work.

[00:00:17] Speaker 03:
Well, thank you.

[00:00:20] Speaker 03:
We'll hear argument first this morning in Scott against Beregovskaya.

[00:00:25] Speaker 03:
Ms.

[00:00:25] Speaker 03:
Brown?

[00:00:33] Speaker 04:
Good morning, Your Honors, and may it please the Court, Whitney Brown, for the appellant.

[00:00:36] Speaker 04:
I'd like to reserve two minutes for rebuttal.

[00:00:39] Speaker 04:
Your Honor, summary judgment was inappropriate here because there is a genuine dispute as to the subjective awareness of both the nurses, Agbasi, and our mentorees, and the doctor, Dr. Barug of Skaia.

[00:00:49] Speaker 04:
Subject to the Court's questions, I intend first to address the claims involving the nurses and then to address the claim involving the doctor.

[00:00:56] Speaker 04:
We believe that five factors, excuse me, five facts create a genuine dispute as to nurse Armendariz and Agbasi's subjective awareness of a substantial risk of serious harm.

[00:01:07] Speaker 04:
First, a jury could reasonably infer that the nurses knew when they encountered Mr. Scott that he had just been in a violent altercation with another inmate named Bologna.

[00:01:17] Speaker 04:
Second, the individual with whom Scott had just been in an altercation was standing with an earshot in another holding cell.

[00:01:25] Speaker 04:
Third, Scott asked to see a doctor.

[00:01:27] Speaker 04:
In fact, he had asked to see a doctor the previous day when he had encountered prison medical staff, and it's reasonable to infer that the nurses would have been aware of that previous encounter.

[00:01:38] Speaker 04:
Fourth, prisoners live by a code that snitching on another prisoner can result in severe retaliation, including death.

[00:01:45] Speaker 04:
Had Mr. Scott told the nurses the truth that Mr. Bologna's accomplice had stabbed him two days before, he could have been killed.

[00:01:53] Speaker 04:
That's undisputed.

[00:01:55] Speaker 03:
And what is the evidence that the nurses were aware of the identity of the attacker and that that person was nearby?

[00:02:03] Speaker 04:
We think it's reasonable for the nurses to have known, first, that there was an altercation.

[00:02:09] Speaker 04:
That's evident in the record at ER 114 and 226.

[00:02:12] Speaker 04:
Second, they were presented with two individuals standing in adjacent holding cells, one of whom was

[00:02:20] Speaker 04:
beaten up, he had abrasions on his face, he was in obvious pain.

[00:02:24] Speaker 04:
And so we think it's a reasonable inference that they believed that these two were in an altercation.

[00:02:30] Speaker 04:
I don't think that we need the nurses to have known that Mr. Bologna attacked Mr. Scott, but it's a, and in fact, on the occasion that the nurses saw them, it was sort of a mutual situation.

[00:02:41] Speaker 04:
But it's a helpful fact for us if they were aware that these two individuals had had a three-day long sort of encounter.

[00:02:51] Speaker 04:
In other words, three violent altercations in three days.

[00:02:55] Speaker 02:
And in this appeal, your claims against the nurses are based on their questioning of him within your shot of the other inmate, correct?

[00:03:04] Speaker 04:
That's correct, Your Honor.

[00:03:05] Speaker 04:
Thank you.

[00:03:06] Speaker 04:
So just the other fact that I would point to, Your Honors, is that the nurses violated prison policy by interviewing him in front of the individual with whom he'd just been in a violent altercation.

[00:03:14] Speaker 04:
So taken together and together with the obviousness of the risk of interviewing a prisoner in front of another individual about his medical condition, our position is that the jury could look at the five facts I've just described

[00:03:28] Speaker 04:
and infer that the nurses were subjectively aware that interviewing Mr. Scott about his medical condition, again, in front of the person with whom he'd just been in a violent altercation, subjected him to an unreasonable risk that he would not be able to truthfully and accurately convey his medical needs and that a serious medical condition would go untreated as a result.

[00:03:47] Speaker 02:
So if you get to pass summary judgment,

[00:03:52] Speaker 02:
How do you avoid qualified immunity from the nurses?

[00:03:55] Speaker 02:
What's your best case that makes it clear that they violated the Constitution?

[00:04:01] Speaker 04:
I think the principle is most clearly articulated in the Hoptoet case, Your Honor.

[00:04:07] Speaker 04:
The principle is that prison officials are deliberately indifferent when prisoners cannot make their medical problems known to medical staff.

[00:04:14] Speaker 04:
But this principle has come up a number of times in the

[00:04:18] Speaker 04:
There are two cases with very similar names.

[00:04:19] Speaker 04:
The LeMeyer case is the case where prison staff cleared out of a unit for three and a half hours, and that was determined to be just a very obvious violation of the Eighth Amendment.

[00:04:31] Speaker 04:
So we would point to Hopton.

[00:04:32] Speaker 02:
Right.

[00:04:33] Speaker 02:
In those cases, and I've read them, they don't quite deal with the circumstances, is that right?

[00:04:38] Speaker 04:
Well, we don't see any daylight between this case and those cases.

[00:04:43] Speaker 04:
Defendants try to draw a line in the sand between conditions of confinement cases in our case.

[00:04:48] Speaker 04:
We don't see that distinction at all.

[00:04:50] Speaker 04:
The point in these cases that I'm pointing to is that prisoners were not able to make their medical problems known to medical staff.

[00:04:57] Speaker 04:
In the Lamar case, which is the quiet cell case,

[00:05:02] Speaker 04:
prisoners were literally unable to communicate with medical staff because of barriers between them and the medical staff.

[00:05:10] Speaker 04:
And we think this case is just the same.

[00:05:12] Speaker 04:
Putting an individual in a circumstance in which telling the truth would require him to risk his life is untenable and anathema to the Eighth Amendment in just the same way that those cases were.

[00:05:24] Speaker 04:
You're welcome.

[00:05:26] Speaker 04:
I see my time is ticking down, so perhaps I'll switch over to Dr. Baragowskaya.

[00:05:30] Speaker 04:
We also believe there's a genuine issue of material fact with respect to Dr. Baragowskaya's subjective awareness of a substantial risk of serious harm.

[00:05:37] Speaker 04:
I want to be very clear about two points at the outset.

[00:05:41] Speaker 04:
First, we do not dispute that a prison physician is entitled to disbelieve

[00:05:46] Speaker 04:
a prisoner who comes in and says one thing and his medical records say another.

[00:05:50] Speaker 04:
We don't dispute that.

[00:05:51] Speaker 04:
We also don't dispute that at some point Dr. Beregovskaia did not believe Mr. Scott.

[00:05:57] Speaker 04:
That's reflected in her medical record.

[00:06:00] Speaker 04:
The problem for Dr. Beregovskaia is that she went on to order a radiological test that would have been unnecessary if she truly disbelieved Mr. Scott.

[00:06:08] Speaker 04:
In other words, if she believed that he had just been scratched by a fingernail or had an ingrown hair, there would have been no reason for her to order an x-ray of his neck, which was intended, and I quote,

[00:06:21] Speaker 04:
to quote rule out foreign body, that's at ER 105.

[00:06:26] Speaker 04:
There would have been no reason to order any test of any kind.

[00:06:29] Speaker 04:
So not only did she order a test, therefore creating a genuine issue as to her subjective awareness of a serious risk of harm, she ordered a test that by her own admission could not identify the harm that Mr. Scott informed her was lodged in his neck, which is a glass or plastic object.

[00:06:48] Speaker 03:
Your friends on the other side suggest, I think, that you correctly quoted the rule-out foreign body language in the notes, but your friends on the other side suggest that maybe the x-ray was intended in part to diagnose the potential arm problem.

[00:07:06] Speaker 03:
What's your response to that?

[00:07:07] Speaker 04:
That is what they say, but that is flatly contradicted by the record.

[00:07:10] Speaker 04:
I would point to ER 103.

[00:07:13] Speaker 04:
On the top right, it says the x-ray was of left facial.

[00:07:17] Speaker 04:
That's here.

[00:07:17] Speaker 04:
look at the abrasions, left orbital, which is the left eye, right side neck.

[00:07:23] Speaker 04:
It says nothing about his arm or his shoulder.

[00:07:25] Speaker 04:
And again, you know, ER 105, same deal, left facial with orbitals x-ray, right side neck x-ray, rule out foreign body.

[00:07:34] Speaker 04:
So there's just nothing in the record to suggest that the x-rays were intended to diagnose an arm injury.

[00:07:39] Speaker 03:
And suppose, I mean, suppose she had thought, you know, well, I don't really believe him, but, you know,

[00:07:48] Speaker 03:
It's sort of awkward to say that.

[00:07:50] Speaker 03:
So just to try to make him feel better, I'll order something.

[00:07:56] Speaker 03:
So you're going to have an X-ray.

[00:07:58] Speaker 03:
It seems odd, then, that she's being punished for trying to be somewhat accommodating.

[00:08:05] Speaker 03:
What's your answer to that?

[00:08:06] Speaker 04:
I think two responses, Your Honor.

[00:08:08] Speaker 04:
First, if she were trying to be accommodating, she would order the test that would rule out the thing that he was telling her was in his neck, which is a glass or plastic object.

[00:08:19] Speaker 04:
So importantly, she didn't do that.

[00:08:22] Speaker 04:
And that's by her own admission in the record.

[00:08:27] Speaker 04:
And secondly, I mean, that is an argument that we would fully expect that the defendants would make at trial, and a jury might believe that.

[00:08:36] Speaker 04:
But there's another story here, and the fact that she ordered a test creates a genuine issue, we believe, as to her subjective awareness.

[00:08:43] Speaker 04:
I see that I am cutting into my rebuttal time here.

[00:08:46] Speaker 04:
I would just point to qualified immunity to the principle that has been reiterated over and over again that denying or delaying medical care violates the Constitution.

[00:08:57] Speaker 04:
This principle is capacious enough, of course, to address many different specific factual scenarios, but that is the principle that we're relying on today, and I'm happy to pick that thread up back in rebuttal.

[00:09:13] Speaker 03:
Thank you, counsel.

[00:09:14] Speaker 03:
Thank you, your honor.

[00:09:19] Speaker 03:
Mr. Ostrick.

[00:09:27] Speaker 01:
May it please the court, Deputy Attorney General Gary Ostrick, appearing on behalf of defendants LVN Agbasi, R.N.

[00:09:35] Speaker 01:
Armanderez, and Dr. Burgoskaya.

[00:09:38] Speaker 01:
The district court's decision granting summary judgment for defendants should be affirmed.

[00:09:43] Speaker 01:
The district court correctly found that defendants were not deliberately indifferent to Mr. Scott's medical needs.

[00:09:49] Speaker 01:
Furthermore, a defendant should be provided with qualified immunity.

[00:09:53] Speaker 01:
The nurses provided Mr. Scott with the medical care on February 29, 2016 that they identified as appropriate for the medical concerns that he communicated to them.

[00:10:03] Speaker 01:
It's undisputed that when Mr. Scott was complaining about needing to see a doctor for his neck wound, he lied about the cause of the neck wound.

[00:10:12] Speaker 01:
And when the nurse examined the neck wound, she reached her own medical conclusion about it based upon her observations of the wound.

[00:10:19] Speaker 01:
She consulted with a physician and obtained an antibiotic prescription for the wound.

[00:10:25] Speaker 01:
Now, Mr. Scott asserts that the nurses were deliberately indifferent to him because they did not take him from his holding cell to a private location to interview him.

[00:10:34] Speaker 01:
He relies on a prison policy that state that nurses should conduct a patient interview in an area affording privacy and free from interruption if possible.

[00:10:45] Speaker 01:
Now, a violation of this policy is insufficient to show that they were deliberately indifferent to him because they did communicate with him.

[00:10:53] Speaker 01:
They communicated with him for about 20 to 30 minutes, according to Mr. Scott's own admissions, about his injuries and his medical needs.

[00:11:01] Speaker 01:
Mr. Scott communicated about his neck wound and even communicated about his arm injury from fighting.

[00:11:08] Speaker 01:
The nurses then exercised their professional medical judgment concerning Mr. Scott's appropriate medical care, and Mr. Scott did not provide any objective evidence that the nurses should have perceived his need to discuss his medical problems in private.

[00:11:22] Speaker 03:
So the case law that Mr. Scott... They were aware that there had been some sort of altercation, weren't they?

[00:11:28] Speaker 01:
They would have been aware that they had been fighting because they were put in holding cells, presumably by custodial staff.

[00:11:36] Speaker 03:
Right.

[00:11:36] Speaker 03:
So I mean, why isn't that fact, and your friend on the other side points out the fairly obvious fact that prisoners are not going to want to be seen to be reporting on other inmates to the authorities.

[00:11:50] Speaker 03:
Why don't those two facts together lead them to think, like, if we really want to find out what happened to him, we better ask him in private?

[00:11:58] Speaker 01:
Because Mr. Scott didn't provide any evidence to them, any clear thing that they could perceive as needing a separate conversation.

[00:12:06] Speaker 03:
Well, but that seems sort of circular that the reason he didn't say that was because it wasn't private, right?

[00:12:13] Speaker 01:
But he was talking to them for about 20 to 30 minutes about his problems.

[00:12:17] Speaker 01:
He even talked about his arm injury, which the nurses could reasonably infer was from the fighting.

[00:12:23] Speaker 01:
So the opposing counsel has referred to the fact that the nurses somehow could have inferred from a request the prior day that they wanted to see a doctor.

[00:12:34] Speaker 01:
There's no indication that these nurses had any knowledge of that.

[00:12:38] Speaker 01:
All they had in front of them was Mr. Scott communicating to them, and they were listening to what he was saying.

[00:12:45] Speaker 01:
And therefore, based upon that information, they took action to treat his medical needs.

[00:12:53] Speaker 01:
So, and the case law that's been referred to, Hunt, Hoptovitz, and Wellman, they don't provide clearly established guidance in this situation.

[00:13:02] Speaker 01:
They're looking at it from a systemic and institutional level in terms of staffing, in terms of policies, and

[00:13:08] Speaker 01:
procedures providing effective treatment.

[00:13:11] Speaker 01:
There's no clearly established guidance here that nurses would know from that that it would be an Eighth Amendment violation for them to confer with prison inmates about their medical needs in the presence of another prison inmate.

[00:13:25] Speaker 01:
Now, Dr. Burgoskaya was also not deliberately different to Scott's medical needs and is entitled to qualified immunity.

[00:13:32] Speaker 01:
So Dr. Burgoskaya treated Mr. Scott on an emergency basis after his fight on March 1st of 2016.

[00:13:40] Speaker 01:
As Mr. Scott himself asserts, after the fight he had a laceration on his cheek and he was bleeding profusely.

[00:13:46] Speaker 01:
There are multiple places in the record when he talks about how much he was bleeding.

[00:13:50] Speaker 01:
So Scott states in his complaint that the laceration was the main focus point for Dr. Bergunskaya and it's undisputed that she treated it.

[00:14:01] Speaker 01:
Now Mr. Scott does disagree with Dr. Bergunskaya in terms of the treatment of his neck wound and his arm.

[00:14:07] Speaker 01:
It's undisputed, based upon the evidence in the record, that Dr. Burgoski perceived Scott as lying about being stabbed in the neck and faking his arm injury.

[00:14:17] Speaker 01:
She communicated to him that she thought he was faking it.

[00:14:20] Speaker 01:
He got angry about that.

[00:14:23] Speaker 01:
And then she wrote in the record that there was a normal range of motion, even though he didn't cooperate.

[00:14:30] Speaker 01:
I can give you the exact quote.

[00:14:34] Speaker 00:
How does she make a decision not to, I don't trust this guy, he's just lying to me because isn't it a physician's responsibility to get a history and to follow up on physical diagnoses and didn't she make a conscious decision, I'm not going to do it with this guy because he's lying.

[00:14:55] Speaker 01:
No, Your Honor.

[00:14:57] Speaker 01:
As the record is, Mr. Scott's complaint actually says, when he mentioned his neck wound, the doctor looked on the computer and saw that just the day before, he had told the nurses a different cause for his neck wound.

[00:15:12] Speaker 01:
So right there, the doctor has an objective basis to start to question credibility.

[00:15:18] Speaker 00:
Yeah, but she has two sets of facts.

[00:15:21] Speaker 00:
She's got the lie, apparently, that he told the first day after the first incident.

[00:15:26] Speaker 00:
And then what apparently turns out, given a year down the road and he had surgery to remove it, he tells her the real facts.

[00:15:35] Speaker 00:
But she consciously said, I'm not going to believe

[00:15:39] Speaker 00:
The real facts, I'm going with what he said on day one.

[00:15:42] Speaker 00:
Why isn't that a problem for her?

[00:15:44] Speaker 01:
Because this goes to subjective intent.

[00:15:48] Speaker 01:
She perceived that he was lying because he gave information that contradicted the information he had given before.

[00:15:55] Speaker 01:
I mean, you could argue that she could have believed one version as opposed to the other version, but what we have here is that she chose, yes, consciously, based upon what she saw, in addition, based upon her examination of the wound, where she saw no entrance wounds, and to her it looked like a localized cyst, that she was going to disbelieve him.

[00:16:16] Speaker 01:
And as the case law shows from the first, fifth, and sixth circuits, if a person, you know,

[00:16:23] Speaker 01:
you know, perceives that the person is lying or faking an injury, then they don't have the subjective state of mind for deliberate indifference to the medical needs.

[00:16:32] Speaker 00:
So why isn't that an issue for the jury to resolve instead of summary judgment?

[00:16:39] Speaker 01:
Well, in terms of the qualified immunity issue here, I think it's a straight issue of law.

[00:16:44] Speaker 01:
In terms of the facts, the facts are nondisputed.

[00:16:47] Speaker 01:
She wrote down on her record exactly what she thought.

[00:16:52] Speaker 01:
She told him that she thought he was faking his injury.

[00:16:55] Speaker 01:
He's communicated that he heard this.

[00:16:58] Speaker 03:
But then why?

[00:16:59] Speaker 03:
I mean, the fact that she ordered the X-ray doesn't make a lot of sense unless she was at least entertaining the possibility that maybe he really had been stabbed, right?

[00:17:09] Speaker 01:
Well, I think there are two things there.

[00:17:12] Speaker 01:
First of all, you're basically then arguing that you're violating an Eighth Amendment right of a prisoner by giving him an extra medical test.

[00:17:22] Speaker 03:
That's not harmful.

[00:17:25] Speaker 03:
It's not so much that the extra medical test is a violation.

[00:17:28] Speaker 03:
It's that the medical test is evidence from which a trier of fact could infer that she did not, in fact, disbelieve him.

[00:17:36] Speaker 01:
I think you need to put it into context.

[00:17:38] Speaker 01:
And here I actually need to apologize, because I did make a mistake by referring to the x-rays going to the arm.

[00:17:44] Speaker 01:
I took the reference in the medical records to no fractures to also including the arm there.

[00:17:50] Speaker 01:
But the x-ray was also done of the orbits of the face.

[00:17:54] Speaker 01:
So that is clearly there in the record.

[00:17:57] Speaker 01:
So the X-ray, as you saw in the record, occurred within a short time period.

[00:18:02] Speaker 01:
She ordered the X-ray.

[00:18:03] Speaker 01:
The X-ray was done within 30 minutes.

[00:18:05] Speaker 01:
She had a report within an hour and plus.

[00:18:09] Speaker 01:
So she did two X-rays, one of which, yes, could eliminate at least whether or not there was a metal shank.

[00:18:22] Speaker 01:
Sorry, if you look at,

[00:18:26] Speaker 01:
ER 256, you'll see that Mr. Scott refers his complaint to the fact that, you know, it does eliminate the idea that it could be a metal shank.

[00:18:36] Speaker 00:
Yeah, but didn't they have a conversation where he said, will an x-ray pick that up?

[00:18:43] Speaker 00:
And wouldn't a CT scan show?

[00:18:47] Speaker 00:
And she made the choice to do with the x-ray when she acknowledged.

[00:18:51] Speaker 00:
that it isn't gonna show plastic or whatever else.

[00:18:57] Speaker 01:
If you look at ER87 and ER256, you'll see that he asked about that after the x-ray was done.

[00:19:06] Speaker 01:
So they've got the x-ray, it shows no form body.

[00:19:09] Speaker 01:
He says, you know, could the x-ray have shown plastic or glass?

[00:19:14] Speaker 01:
She admits candidly, no.

[00:19:17] Speaker 01:
But she makes a decision based upon the totality of the evidence that she's seen there that it wasn't medically indicated to do an MRI.

[00:19:26] Speaker 01:
And a mere disagreement between her and Mr. Scott as to whether or not to do an MRI is not a basis for deliberate indifference.

[00:19:34] Speaker 00:
Right, but he had that in his neck for a year and it required surgery to remove it, right?

[00:19:39] Speaker 01:
It did, but that's not something that she perceived at the time.

[00:19:46] Speaker 01:
All right.

[00:19:47] Speaker 03:
Thank you, Council.

[00:19:48] Speaker 01:
Thank you.

[00:20:01] Speaker 04:
Thank you, Your Honors.

[00:20:02] Speaker 04:
I did not hear today a response to our argument about the sheer obviousness of the risk to which the nurses subjected Mr. Scott of interviewing him in front of an individual with whom he'd just been in a violent altercation, especially whereas here there's no evidence in the record that it would have been impossible or indeed even inconvenient to move him to a private location to have that conversation about his medical condition in private.

[00:20:28] Speaker 04:
Farmer says that, quote, a fact finder may conclude that a prison official knew of a substantial risk from the very fact that it was obvious.

[00:20:36] Speaker 04:
That is the case here.

[00:20:37] Speaker 04:
And in addition, we have the five facts that I presented at the beginning from which a reasonable jury could conclude that the two nurses were subjectively aware of a substantial risk of harm.

[00:20:46] Speaker 04:
And to the extent that my friend on the other side argues that this is different from a staffing or institutional type of case, again, we see no daylight between this case and those.

[00:20:59] Speaker 04:
This could very well be categorized as a conditions of confinement case or an institutional issue where medical care should not be provided in a situation that makes

[00:21:11] Speaker 04:
a prisoner unable to accurately and fully convey his medical needs.

[00:21:20] Speaker 04:
With respect to Dr. Berikovskaya, I respectfully disagree with my friend about when this conversation happened about the glass versus plastic.

[00:21:28] Speaker 04:
That happened in their initial conversation where she said, I will order an x-ray.

[00:21:33] Speaker 04:
And he said, can that pick up glass or plastic?

[00:21:37] Speaker 04:
And she said, no, that's an ER87 and 256.

[00:21:40] Speaker 04:
And I think that's all I have, unless the court has further questions.

[00:21:46] Speaker 03:
It appears we do not.

[00:21:48] Speaker 03:
So, Ms.

[00:21:49] Speaker 03:
Brown, you were appointed by this court to represent your client, Pro Bono, and we thank you for your service to the court.

[00:21:55] Speaker 03:
We thank both counsel for their arguments, and the case is submitted.