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Hear ye, hear ye.

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All persons having business with the Honorable, the United States Court of Appeals for the Ninth Circuit will now draw near.

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Give your attention and you will be heard.

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God save these United States and this Honorable Court.

[00:00:18] Speaker 05:
Good morning and welcome to the Ninth Circuit.

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Before we begin, Judge Thomas and I would like to thank Judge Bennett from the District of Maryland for joining us here.

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It's really a big help, and it's been a pleasure sitting with you this week.

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Thank you, Judge Muvete and Judge Thomas.

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It's a pleasure to be here.

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It's always an honor to sit with the Ninth Circuit.

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Delighted to be here.

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Great.

[00:00:38] Speaker 05:
And we have a number of cases submitted on the brief today.

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I'll go ahead and submit them right now.

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United States versus Perry.

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United States versus Singh.

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Quintanilla Vasquez versus Libre by Nexus Inc.

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and Shahid Bataar for Congress Committee versus Hearst Communications will all be submitted as of this day.

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The first case for argument is Barker versus Osam Wingi.

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I hope counsel can correct me on that.

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Good morning, your honors.

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My name is Samuel Weiss.

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I represent the appellant.

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Mr. William Barker, I'd like to serve three minutes for rebuttal.

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May it please the court?

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This is the second trip that this case has taken to this court, and it's in the identical procedural posture.

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The district court screened on a Prison Litigation Reform Act pre-service screening order Mr. Barker's ADA claim.

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This court vacated and remanded because that involved a misinterpretation of the ADA.

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Upon that remand, Mr. Barker amended his complaint, and the district court, once again, instead of serving the complaint and proceeding to Rule 12, Sue Esponte dismissed his case, once again doing so by misinterpreting the ADA.

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So, we are back here before this court, again, seeking reversal to proceed to service and the initiation of his disability law claims.

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We think that the allegations and the errors of the district court are pretty straightforward, so perhaps the correct place to start is defendants' main point on appeal, which is that what exactly information should this court be looking at in making this determination?

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Uh, looked only to the allegations and the complaint, which is certainly what 28 USC 1915 a seems to require.

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Uh, there was one exception to this and the exception we think proves the role here.

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Um, at er eight, the district court said because, uh,

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the manual to this Hoyer lift, which is what injured Mr. Barker, was referenced in the complaint.

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And because there was an uncontested copy of the manual, the district court felt that it could look at that too.

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But it did not look at the previous record developed on a different claim against different defendants.

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What defendants wasn't that also law of the case though because it was decided in the previous appeal that the fact that he that the the the nurse used the lift properly

[00:03:29] Speaker 04:
Yes, Your Honor.

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So that's what defendant argues that it's law of the case.

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We would make two points on that, which is that, first of all, we think defendants have waived any law of the case argument.

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They used it only in a footnote.

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Obviously, this court could waver discretionary.

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You can affirm it on grounds you could overlook it.

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We don't think, and there's really

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this law of the case argument, they really used to make two points.

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We don't think either are applicable for reasons I'll explain.

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We also think that defendants, because law of the case is a discretionary doctrine, that defendants had to actually... Well, putting that all aside, why is that relevant?

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If the nurse used the lift properly, why do you lose?

[00:04:23] Speaker 04:
Well, for a couple of different reasons.

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I think, so what this panel held was that by the standards of the Eighth Amendment, the nurse, there was no Eighth Amendment conditions of confinement claim for the use of the Hoyer lift.

[00:04:42] Speaker 02:
Wasn't there actually, as I understand it, wasn't there actually a ruling by this court previously, and correct me if I'm wrong, Mr. Weiss, that the lift was medically appropriate and it met ADA standards?

[00:04:55] Speaker 02:
As to that first step, that's already been decided, has it not?

[00:04:59] Speaker 04:
No, I don't believe it has, so it is not as to the ADA standards.

[00:05:02] Speaker 04:
It's true that there's language in that as to the previous opinion, but I think there's two important reasons why that doesn't control here to both your and Judge Bumte's question, and I agree this is sort of the central question of the appeal.

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The first is that the Eighth Amendment standard, so that's the language that the court used, but the law that it was actually holding was that there was no Eighth Amendment claim against these individual officials for using the Hoyer lift.

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The Eighth Amendment, of course, is a very, very low bar.

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We're talking about cruel and unusual punishment.

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A reasonable accommodation of a disability is interpreting a statute passed by Congress.

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It's meant to be read broadly.

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And as this court has repeatedly held, the reasonableness of accommodation is typically left for a fact finder.

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So the idea that whatever error with the Hoyer lift did not meet the Eighth Amendment standard

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or whether there was no error at all, that would be sufficient to implicate the Eighth Amendment, does not decide the ADA claim of a reasonable accommodation as a matter of law.

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And I think there's one point that makes that very clear, which is that per that interpretation,

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it would render the previous panel's order totally incoherent, pardon me, the opinion totally incoherent, because the same opinion that has that language that the two of your honors are citing also vacated and remanded the ADA claim.

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So if that decisively resolved the ADA claim,

[00:06:41] Speaker 05:
Well, that's my argument.

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I thought, even if the lift was used properly, do you have any arguments?

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ADA claim?

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Left?

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So I actually think that we do, for a couple of different reasons.

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One is that after the Hoyer lift was used improperly, they just left him there for a prolonged period of time.

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Do we have a claim about lack of meaningful access to toileting?

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Yes, absolutely.

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That's my question.

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Was that claim, was that in your, is that that type of claim that seems different than a lack of accommodation, right?

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It seems like some sort of discrimination.

[00:07:18] Speaker 02:
Like a deliberate indifference.

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It's not a lack of accommodation, was that pled?

[00:07:23] Speaker 04:
It was pled.

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We think that's the same.

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We think that's the same part of the failure to accommodate claim.

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So this is because of his disability, he's... Well, that's quite different.

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So the accommodation claim is whether or not they provide him something to access the toilet.

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Right.

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And then the claim that he was left there for an hour is something different.

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But he still doesn't get to the toilet.

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He's just sitting there injured, not receiving meaningful access to the toilet.

[00:07:54] Speaker 03:
There are two different claims, I think.

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That's what Judge Bumate is saying.

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And I'm not sure that you've actually pled the second claim.

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Well, we think they're both about whether he received meaningful access to the service of toileting.

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And these are just two instances of the ways that he was not.

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One, he was injured in the transfer.

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And one is even afterwards, he was not given access because they left him sitting there.

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But again, I would just note that this interpretation of the panel's opinion as simultaneously vacating and remanding

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the ADA claim while at the same time making a holding that totally foreclosed that same ADA claim.

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I just don't think that could possibly be the best reading of the previous panel's decision.

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Is this, in fact, the Fifth Amendment amended complaint?

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Is that correct?

[00:08:56] Speaker 04:
It is.

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A couple of those were for typos, but yeah.

[00:09:01] Speaker 02:
So at least it's the third amended complaint with two typos, I guess.

[00:09:04] Speaker 04:
Yeah, it's something like the third amended complaint.

[00:09:10] Speaker 04:
That is certainly true.

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And yet, we're here on de novo review of a screening order which this court has repeatedly held as a very low threshold.

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So we think that the allegations of the complaint get there.

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We believe the answer is yes.

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I'll reserve my time if there aren't further questions.

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Thank you.

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Thank you, counsel.

[00:09:41] Speaker 01:
May it please the court, Diana Esquivel, for appellee the state of California.

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The court properly dismissed the fifth amended complaint because plaintiff failed to allege facts sufficient to state a plausible claim under the ADA.

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Plaintiff had been granted numerous opportunities to allege facts.

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This court remanded the case following the appeal, the earlier appeal,

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with very specific instructions as to what was needed to state a viable ADA claim and RA claim, yet Mr. Barker failed to do so.

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I want to address foremost the argument that

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My opposing counsel argued in terms of that the prior decision would have foreclosed if it's interpreted as making a conclusive finding that use of the Hoyer lift was appropriate under the circumstances and in the manner in which the nurses used it.

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That is incorrect.

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The court remanded because there was a lack of facts as to what was the discriminatory conduct.

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and what was the deliberate indifference conduct, because none of those facts were alleged in the second amended complaint that was before the court in the first appeal.

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So when plaintiff finally submitted his fifth amended complaint, the gist of that complaint is that the nurses improperly used the lift.

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contrary to the manual.

[00:11:27] Speaker 02:
Isn't it the thrust also that there was a prolonged delay in terms of receiving medical and nursing assistance?

[00:11:33] Speaker 01:
Correct, Your Honor.

[00:11:34] Speaker 01:
There are some vague allegations about that, but yet to the extent that Mr. Barker intended to assert an ADA claim under those facts, they're sufficient for the same reason this Court recognized the first time.

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Not only does he fail to

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alleged facts that he was denied access to medical care by delaying the provision of the medical care because of his disability, there's no facts alleged in the complaint.

[00:12:09] Speaker 01:
It's all focused on whether the nurses properly used the Hoyer lift.

[00:12:15] Speaker 02:
Isn't there something in the record to the effect that one nurse said, I'm not going to assist him, and they had to

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go to another nurse, correct me if I'm wrong, but I thought that's in the record.

[00:12:23] Speaker 02:
There's something alleged that someone actually said, I'm not going to assist him.

[00:12:28] Speaker 01:
That was Nurse Assamwingi?

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I mean, that's in the complaint, the existing complaint, right?

[00:12:33] Speaker 01:
He alleged that if the Hoyer lift was not used, because Mr. Barker alleged that he wanted a two-person manual lift.

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Miss nurse awesome wenge stated that if he wasn't going to use her left, he wasn't going to use it.

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But yet in the complaint, he also alleges that there were two other nurses present nurse Rama skull and nurse Coloma who could have then used the lift or

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uh, did another approach.

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So by making that statement, that does not rise to the level of a discriminatory intent against Mr. Barker.

[00:13:12] Speaker 01:
It was merely nurse Assam Wenge's.

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Does it rise to the level of deliberate indifference?

[00:13:19] Speaker 01:
It does not.

[00:13:20] Speaker 01:
It does not because Ms.

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uh, nurse Assam Wenge, as the complaint alleges,

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explicitly told Mr. Barker, I am going to use this lift in a way that it does not injure your groin area or your back, thereby indicating that he took into consideration Mr. Barker's concern about the use of the Hoyer lift.

[00:13:51] Speaker 05:
Council, can I ask, even if the Hoyer lift was used properly, he does allege that he was left on the floor for an hour.

[00:13:56] Speaker 05:
Is that a claim in itself?

[00:14:01] Speaker 01:
No, and it wasn't the floor, Your Honor.

[00:14:03] Speaker 01:
My understanding is that he is alleging that he was left in his wheelchair for an hour.

[00:14:09] Speaker 01:
And then when a nurse came to check on him, he was left additional time.

[00:14:14] Speaker 01:
The problem with those allegations is that they suffer from the same deficiency

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that this court noted during the first appeal that there is no connection between that conduct and his disability.

[00:14:27] Speaker 05:
You're saying that he wasn't deprived of the ability to use toileting services just because by simple fact of being left there an hour?

[00:14:35] Speaker 01:
Well, there's not enough allegations, Your Honor.

[00:14:37] Speaker 01:
That is why the district court dismissed it.

[00:14:41] Speaker 01:
The complaint still suffers from inadequacy of facts.

[00:14:46] Speaker 05:
Do you think that the complaint adequately alleges that second type of claim that the hour by itself was a violation of the ADA or was it all just a reasonable accommodation?

[00:15:00] Speaker 01:
I'm sorry, if I understand your question is whether I believe that there's sufficient facts to state a claim under the ADA.

[00:15:06] Speaker 05:
Well, no, I'm just asking whether or not the complaint alleges that second type of claim.

[00:15:10] Speaker 05:
In my head, there seems to be two claims.

[00:15:12] Speaker 05:
One, that's failure to accommodate because the Hoyer lift was inappropriate.

[00:15:17] Speaker 05:
And then two, some sort of discrimination because he was left there for an hour.

[00:15:23] Speaker 01:
Well, again, like I said, Your Honor,

[00:15:26] Speaker 01:
The problem with that allegation is that there's not sufficient facts to show that the provision of medical care was delayed on account of his disability.

[00:15:37] Speaker 05:
Well, I'm just simply asking, do you think he properly alleged that, that second type of claim?

[00:15:40] Speaker 01:
No, he did not properly allege sufficient facts to state a cognizable claim for being left in his wheelchair without medical assistance once his back was injured during the use of the Hoyer lift.

[00:15:55] Speaker 01:
But again, Your Honor, I think the important thing here is that the focus of the Fifth Amendment complaint is that the Hoyer lift was improperly used.

[00:16:09] Speaker 01:
This court already resolved that factual issue.

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The fact that it arose in the Eighth Amendment context during the first appeal does not change that factual finding.

[00:16:23] Speaker 01:
That factual finding is equally applicable to an ADA claim where it arises under two contexts, whether it's discriminatory intent or failure to accommodate.

[00:16:38] Speaker 01:
In this case, Mr. Barker's theory is that he was not given a reasonable accommodation, but yet the finding that the lawyer was properly used

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It then logically follows that using it in the manner in which it did was a reasonable accommodation.

[00:16:56] Speaker 01:
Unless the court has any further questions, I would ask that it affirm the judgment of the district court.

[00:17:05] Speaker 01:
Thank you.

[00:17:06] Speaker 05:
Thank you, counsel.

[00:17:20] Speaker 04:
Okay, thank you, Your Honors.

[00:17:21] Speaker 04:
I think if you look at ER 17, I think that there is a mention of in his ADA claim about that the prolonged delay was part of the reasonable accommodation.

[00:17:34] Speaker 04:
And I'll just note again, this is a procedural posture that is supposed to be extremely favorable to plaintiffs.

[00:17:41] Speaker 05:
So even if that prolonged delay was the ADA claim, the complaint doesn't say that he was denied toileting services because of that prolonged delay.

[00:17:55] Speaker 04:
Well, I think that

[00:17:59] Speaker 04:
I think that it alleges that he was denied meaningful access to various services, including toileting by this whole experience.

[00:18:07] Speaker 04:
I think if this court wanted to carve out the Hoyer lift on law of the case grounds, then we would disagree with it.

[00:18:14] Speaker 04:
We think that still fits in a failure to accommodate claim.

[00:18:20] Speaker 03:
The question is... How have you alleged that there was a failure to accommodate?

[00:18:24] Speaker 03:
Well, because... You basically just said that your... Well, the complaint says treatment was delayed.

[00:18:31] Speaker 03:
Right, so he... That's nothing more.

[00:18:34] Speaker 04:
Well, I think the question is, is toileting a program service activity under the ADA?

[00:18:40] Speaker 04:
It is.

[00:18:40] Speaker 04:
Did he lack meaningful access to it for that hour?

[00:18:42] Speaker 04:
Yes, he did.

[00:18:44] Speaker 04:
Did he request an accommodation?

[00:18:45] Speaker 04:
He did.

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to get to the toilet, was he denied it?

[00:18:49] Speaker 04:
Yes.

[00:18:50] Speaker 04:
Was he?

[00:18:51] Speaker 03:
Yes.

[00:18:51] Speaker 04:
We don't know.

[00:18:52] Speaker 04:
Well, whether or not the complaint.

[00:18:55] Speaker 03:
I've read the deposition.

[00:18:56] Speaker 03:
I've read all of your material.

[00:18:58] Speaker 03:
Yeah.

[00:18:59] Speaker 03:
It seems to be a blank set of facts as to what happened.

[00:19:04] Speaker 04:
I agree.

[00:19:05] Speaker 04:
I agree that it's a blank.

[00:19:06] Speaker 04:
And I would also note, I think that it would be more appropriate to, under 28, 1950 A, to examine the complaint for whether it

[00:19:17] Speaker 04:
has any chance of stating a claim, it clears that low threshold.

[00:19:20] Speaker 03:
People believe that it does.

[00:19:21] Speaker 03:
It's difficult.

[00:19:23] Speaker 03:
You were up here before, and the panel said, here's what you have to do to amend your complaint to solve it.

[00:19:30] Speaker 03:
As I look at the new complaint, I'm not sure that it complies with what the other panel instructed.

[00:19:37] Speaker 04:
Yes, Your Honor.

[00:19:38] Speaker 04:
I actually think that it does.

[00:19:41] Speaker 04:
And I think a useful exercise potentially could be to just actually sit with the two allegations.

[00:19:48] Speaker 04:
So the previous operative complaint is at SCR 48-49.

[00:19:52] Speaker 04:
The current one is at ER 13-15.

[00:19:54] Speaker 04:
They said two things.

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One, causation, which is really about the reasonableness of the accommodation.

[00:20:00] Speaker 04:
And the second is deliberate indifference.

[00:20:03] Speaker 04:
And the allegations that Barker added were about notice, about that

[00:20:09] Speaker 04:
that Osomwini and Ramaskal had seen him around, knew his medical conditions, had helped him with the Lyft before, knew that he had these issues, and then more details about these critical few minutes.

[00:20:28] Speaker 04:
The court was concerned about notice for deliberate indifference, like the subjective knowledge of the defendant.

[00:20:34] Speaker 04:
We think that the amended complaint takes care of that.

[00:20:36] Speaker 04:
And as for causation, which is really about the reasonableness of the accommodation, we think the complaint actually adds several things in there, too.

[00:20:46] Speaker 05:
Any other questions?

[00:20:48] Speaker 04:
Thank you, Your Honor.

[00:20:48] Speaker 05:
Thank you, counsel.

[00:20:49] Speaker 05:
This case is submitted.