[00:00:14] Speaker 04:
Council, Mr. Davis?

[00:00:15] Speaker 03:
Yes, Your Honor.

[00:00:17] Speaker 04:
Here we go for the second time.

[00:00:24] Speaker 04:
Sorry, Your Honor.

[00:00:27] Speaker 04:
No worries.

[00:00:28] Speaker 04:
When you're ready.

[00:00:44] Speaker 03:
So for a little clarification, do you want me to go through?

[00:00:48] Speaker 04:
Yes.

[00:00:48] Speaker 04:
For the record, you have to say your name again.

[00:00:50] Speaker 03:
OK.

[00:00:51] Speaker 03:
My name is Chris Davis, and I represent the appellants.

[00:00:54] Speaker 03:
But what I want to know is, Your Honors, do you want me to go through this, the whole timeliness issue again?

[00:01:00] Speaker 03:
Would you rather me just, you know, we've already talked about that, or do you want to?

[00:01:04] Speaker 02:
Well, I have a couple more questions on timeliness.

[00:01:08] Speaker 02:
And we'll maybe have one or two more questions that I'll reserve for the next argument where the other side in the next argument has made a slightly different argument.

[00:01:20] Speaker 02:
But in this one, I just wanted to pick up on one of the last things you were saying, which is that without the separate document requirement, it's hard to figure out when you have an appealable

[00:01:31] Speaker 02:
I'm not quite sure what you meant by that.

[00:01:35] Speaker 03:
Can you elaborate on that?

[00:01:46] Speaker 03:
District courts can do that at any time in the at they want to until there's a final judgment of the people and for example I'll give you an example what happens is is that lots of times the district court wants to us to Settle these cases and they encourage and they order a settlement conference and they want us to do this because They don't want us to appeal they want to get rid of this case.

[00:02:03] Speaker 00:
They don't want to have it on this thing that I find to be problematic about

[00:02:09] Speaker 00:
your argument here is that when I asked earlier about the possible change of policy in your office, your response to that was that you came into the office and determined that some of these cases that had not been appealed did in fact or should in fact be appealed.

[00:02:23] Speaker 00:
It's not that you didn't understand that there was an order denying the summary judgment for qualified immunity.

[00:02:32] Speaker 00:
You understood that.

[00:02:35] Speaker 00:
You know, it's really hard to reconcile these two arguments that you're making because I feel like it's disingenuous for you to say that you didn't understand that there was a final order because, in fact, you did.

[00:02:46] Speaker 00:
It's just that you came into the office and then determined that these cases should, in fact, be appealed.

[00:02:51] Speaker 03:
It's not that I was able to understand.

[00:02:54] Speaker 03:
I don't want to say that I didn't understand.

[00:02:58] Speaker 03:
I don't think I ever said that.

[00:02:59] Speaker 03:
I said that it's a possibility.

[00:03:01] Speaker 03:
It's a policy consideration that the courts reason why they haven't amended the rules.

[00:03:04] Speaker 03:
Because I'm not the only attorney here.

[00:03:06] Speaker 03:
And while I have, you know, I don't know, Judge Rollinson knows I'm probably a little egoistic.

[00:03:13] Speaker 03:
But I think I have a pretty good grasp of the rules.

[00:03:16] Speaker 03:
But somebody else may not.

[00:03:18] Speaker 03:
And somebody might not have the procedures and know this.

[00:03:21] Speaker 03:
And they might not know it's a final decision, even if they're attorneys.

[00:03:26] Speaker 03:
Which generally I would expect in a qualified immunity appeal that would be.

[00:03:30] Speaker 03:
In a preliminary injunction appeal though, not necessarily so you have a pro se defendant, right?

[00:03:34] Speaker 03:
And he's moved for injunction, and he does it, and they rule the injunction.

[00:03:39] Speaker 03:
He has no idea that it is a final decision.

[00:03:41] Speaker 03:
And so it's a policy issue.

[00:03:43] Speaker 03:
I don't think you can do that.

[00:03:45] Speaker 03:
And like I said, the Supreme Court said, this rule has to be mechanically applied.

[00:03:49] Speaker 03:
You can't make exceptions and say, hey, geez, he knows what's going on.

[00:03:54] Speaker 03:
We ought to hold him to a higher standard than the rest of the people.

[00:03:58] Speaker 02:
The case that you've referred to a number of times about the mechanical application, that was about whether the document is in fact a separate document.

[00:04:09] Speaker 02:
When a separate document is required, we mechanically apply the requirement that the document in fact be separate, right?

[00:04:16] Speaker 03:
I think they say it with respect to the rules all along.

[00:04:19] Speaker 03:
I mean, this isn't the only case.

[00:04:20] Speaker 03:
This is just one of the cases that say it.

[00:04:22] Speaker 03:
I think that, for example, the Corrigan case before this court, it dealt with a separate document requirement.

[00:04:27] Speaker 03:
It also said that it has to be mechanically applied.

[00:04:30] Speaker 03:
And it also, though, said that

[00:04:33] Speaker 03:
appeal was timely.

[00:04:34] Speaker 03:
And because, like I said before, they said it because the rule should be interpreted to facilitate the appeals, not to create a loss of appeal.

[00:04:43] Speaker 03:
To interpret this rule against the plain language would facilitate the loss of appeal.

[00:04:49] Speaker 03:
And I know I get your feeling that this somehow is unfair.

[00:04:54] Speaker 03:
Hey, you get 180 days to do this.

[00:04:58] Speaker 02:
Maybe that's somebody's feeling.

[00:05:01] Speaker 03:
Maybe I'm getting the wrong sense here.

[00:05:04] Speaker 03:
But the thing is, it's not.

[00:05:06] Speaker 03:
Because this happens at the end of the case, too.

[00:05:08] Speaker 03:
For example, you have a summary judgment order at the end of the case, right?

[00:05:13] Speaker 03:
And the case is disposed by summary judgment.

[00:05:15] Speaker 03:
I think we would all agree that the time for appeal does not begin to run until, because if the summary judgment disposes all the issue,

[00:05:23] Speaker 03:
it does not begin to run until the separate document is in.

[00:05:27] Speaker 03:
The court does that all the time.

[00:05:29] Speaker 03:
The court says there has to be a separate document at the end of the case and an ocean for summary judgment.

[00:05:34] Speaker 03:
But how is that any different from here?

[00:05:35] Speaker 03:
In fact, it's less certain here because in that case you have disposed of all parties and all issues and everything.

[00:05:41] Speaker 00:
I think the difference is that in the summary judgment context at the very end of the case, the rule allows for this additional time and requires the separate document because there are post-judgment motions

[00:05:51] Speaker 00:
that need to be filed that the court is accounting for.

[00:05:55] Speaker 00:
Here there's actually a potential for delay in the case and it really does impact the efficiency of the court and sort of the administration of justice when an office like yours waits up to 150 days to file an appeal in a matter that would otherwise go up to the court, get resolved,

[00:06:20] Speaker 00:
so that the court then can continue to adjudicate the case before it.

[00:06:26] Speaker 00:
So I think it's just a completely different context, that the post-judgment motions that apply at the end of a case just don't exist in a collateral order circumstance.

[00:06:37] Speaker 03:
Your Honor, I respectfully disagree, that because you say that there's other motions, well, guess what?

[00:06:42] Speaker 03:
In an interlocutor appeal,

[00:06:44] Speaker 03:
All kinds of motions.

[00:06:46] Speaker 03:
There's a lot more motions that go in between an interlocutory appeal in the end and between the end.

[00:06:50] Speaker 00:
What other motions are you filing with the district court after you get a denial of a... I could do the same kind of motion.

[00:06:56] Speaker 03:
I could do a motion for reconsideration, Your Honor.

[00:06:58] Speaker 03:
I could do all the same kind of motions at the end of an interlocutory appeal that you can do at the end of a case.

[00:07:06] Speaker 03:
But guess what?

[00:07:06] Speaker 03:
In the judgment, when they do it, the district court has decided that when it hits that,

[00:07:13] Speaker 03:
at least in Nevada, they almost immediately file the judgment.

[00:07:16] Speaker 03:
They don't wait for additional order.

[00:07:19] Speaker 03:
As soon as the summary judgment order is issued, they issue a final judgment.

[00:07:23] Speaker 03:
They could do the same thing here if they wanted to cut off the time for appeal.

[00:07:25] Speaker 03:
And not only that, if opposing counsel wanted to cut off time for appeal, they could ask the district court to enter judgment.

[00:07:33] Speaker 03:
And then it would cut off the time for appeal.

[00:07:34] Speaker 03:
It's a simple thing to do if they wanted to cut off the time for appeal.

[00:07:40] Speaker 03:
But they don't.

[00:07:41] Speaker 03:
And Your Honor, I would respectfully also that, like, in each case, we, for example here, we are not untimely.

[00:07:50] Speaker 03:
We don't have, we only still have 30 days to file our notes of appeal.

[00:07:54] Speaker 03:
It's just so that judgment is not entered until 150 days is allotted when there's no separate document.

[00:08:01] Speaker 02:
So if, I mean, if you're right that judgment is used in the rules is just, you know,

[00:08:07] Speaker 02:
It includes not just final judgments, but anything that you can appeal from.

[00:08:12] Speaker 02:
What about, I mean, your friend on the other side made the point that FRAP 4 seems to have some unnecessary language on your reading in that it says judgment or order.

[00:08:24] Speaker 03:
Well, like I said, Your Honor, it does say judgment or order, right?

[00:08:27] Speaker 03:
But I delineated, there are certain orders that are final without it.

[00:08:30] Speaker 03:
Rule 60B order, for example, expressly exempts the Rule 60B order.

[00:08:34] Speaker 03:
And like I said, Your Honor, they could have

[00:08:37] Speaker 03:
put another subdivision, I don't know what it got to, I mean subdivision D, E, F, whatever subdivision they were up to, they could have just added another one instead.

[00:08:47] Speaker 03:
They could have just put in instead interlocutory orders denying qualified immunity, interlocutory orders denying preliminary injunction.

[00:08:53] Speaker 03:
They could have added that, but they didn't do it.

[00:08:57] Speaker 03:
And I think the reason why is, is there was probably, I can only speculate, but there was probably some conflict on the, within the Supreme Court about whether they wanted to do that or not.

[00:09:07] Speaker 03:
And so they didn't do it.

[00:09:09] Speaker 03:
And then when the people wrote the advisory committee notes who aren't the Supreme Court justices, maybe I'm understanding this wrong, but I think it's the Supreme Court justices that have to approve the changes in the federal rules.

[00:09:22] Speaker 03:
And the people who write the advisory committee notes, they probably didn't like what the Supreme Court did.

[00:09:27] Speaker 03:
So they put the notes away.

[00:09:28] Speaker 03:
But the thing is is that this court, just like the case in Ucourt, you can't disregard the plain language of the rule based on the notes.

[00:09:36] Speaker 03:
The notes do not control here.

[00:09:40] Speaker 03:
The Supreme Court ruling that this should be mechanically applied applies here.

[00:09:47] Speaker 03:
Your Honor, I just want to get to qualified immunity, I guess, before.

[00:09:53] Speaker 03:
Well, actually, I'll reserve my time.

[00:09:55] Speaker 03:
If that's OK.

[00:09:56] Speaker 03:
Thank you, Council.

[00:09:58] Speaker 03:
Thanks.

[00:10:13] Speaker 01:
Good morning, Your Honors.

[00:10:14] Speaker 01:
My name is Christina Phipps of Logo Marcino Law, and I represent the appellee, Dante Patterson.

[00:10:20] Speaker 01:
I want to just start by recognizing the fact that we did not raise the timeliness issue in our answering brief.

[00:10:28] Speaker 01:
Unfortunately, we just missed that initial order from 2023 when we came in as pro se counsel.

[00:10:35] Speaker 01:
I'm sorry, as a pro bono counsel.

[00:10:37] Speaker 01:
So of course, when the more recent December 2024 order came out, recognizing that fact and advising that we discuss with the related cases, your counsel for the related cases, we did that.

[00:10:50] Speaker 01:
I have reviewed their briefs.

[00:10:51] Speaker 01:
I am familiar with the arguments.

[00:10:52] Speaker 01:
And then, of course,

[00:10:54] Speaker 01:
with the appellant's reply brief that was filed in February.

[00:10:57] Speaker 01:
They provided much more of that argument there.

[00:11:01] Speaker 01:
So I'm happy to discuss that issue.

[00:11:04] Speaker 01:
But if you'd like me to, but I didn't want to raise it if you didn't want me to discuss it since we didn't raise it in our brief.

[00:11:12] Speaker 02:
But I mean, it is jurisdictional, right?

[00:11:14] Speaker 02:
Correct.

[00:11:16] Speaker 01:
Right.

[00:11:16] Speaker 02:
So you haven't waived it.

[00:11:18] Speaker 01:
OK.

[00:11:19] Speaker 01:
Yeah.

[00:11:19] Speaker 01:
So and they do state that we waived it.

[00:11:22] Speaker 01:
But of course, we didn't expressly

[00:11:24] Speaker 01:
I'm not sure.

[00:11:25] Speaker 02:
I'm not sure.

[00:11:26] Speaker 02:
I'm not sure.

[00:11:28] Speaker 02:
I'm not sure.

[00:11:30] Speaker 02:
I'm not sure.

[00:11:31] Speaker 01:
I'm not sure.

[00:11:32] Speaker 01:
I'm not sure.

[00:11:33] Speaker 01:
I'm not sure.

[00:11:34] Speaker 01:
I'm not sure.

[00:11:35] Speaker 01:
I'm not sure.

[00:11:36] Speaker 01:
I'm not sure.

[00:11:37] Speaker 01:
I'm not sure.

[00:11:38] Speaker 01:
I'm not sure.

[00:11:39] Speaker 01:
I'm not sure.

[00:11:42] Speaker 01:
I'm not sure.

[00:11:44] Speaker 01:
I think there's a lot to be said about this.

[00:11:45] Speaker 01:
I think there's a lot to be said about this.

[00:11:47] Speaker 01:
I think there's a lot to be said about this.

[00:11:51] Speaker 01:
I think there's a lot to be said about this.

[00:11:54] Speaker 01:
I think there's a lot to be said about this.

[00:11:56] Speaker 01:
I think there's a lot to be said about this.

[00:11:59] Speaker 01:
I think there's a lot to be said about this.

[00:12:01] Speaker 01:
there isn't a practice that they're filing these separate documents, especially for motion summary judgment orders where these collateral orders are appealed from.

[00:12:13] Speaker 01:
So in that sense, I do think that it indicates that

[00:12:18] Speaker 01:
the reading that the appellants are bringing is incorrect.

[00:12:21] Speaker 01:
I also think that a lot of the practical issues that some of the other cases brought in is the confusion, the prejudicial delay, especially when we're looking at motion for summary judgment.

[00:12:33] Speaker 01:
If you're talking about 180 days after an order that an appeal can be made, you're typically in the process of filing motions in lemonade.

[00:12:40] Speaker 01:
You're already in trial preparation.

[00:12:42] Speaker 01:
Judges have already potentially scheduled your trial out.

[00:12:45] Speaker 01:
So I think in a practical sense, the rule doesn't make sense.

[00:12:49] Speaker 01:
It's just duplicitous.

[00:12:51] Speaker 01:
That's unnecessary paper pushing is, I think, one of the other counsel, the argument that they made.

[00:12:58] Speaker 01:
So in that sense, we do agree.

[00:13:01] Speaker 01:
And our position is that the court should adopt the statutory interpretation argument that was made by Naughton and the McNeil cases, and then just provide clear instruction that the separate document is only

[00:13:13] Speaker 01:
that the case is over and that the appeal can be brought from there.

[00:13:27] Speaker 01:
And the bulk of our argument, of course, was for the qualified immunity issue, which is also a jurisdictional argument where we raise the fact that while the

[00:13:43] Speaker 01:
they have a right to appeal under the collateral order doctrine.

[00:13:47] Speaker 01:
In reality, when you look at the underlying order, the order was all about their inability to meet their burden as the moving party to demonstrate that there were no material issues of fact.

[00:14:00] Speaker 01:
And so they can't now couch the two or conflate the two and try to get this court to

[00:14:08] Speaker 01:
I'm not going to go into the details of this case.

[00:14:10] Speaker 01:
I'm just going to basically start from scratch to review of the record on evidentiary sufficiency.

[00:14:13] Speaker 01:
And there is clear precedent not since in this court from Johnson and Plumhoff Anderson, I think it's Foster and Barron's which and the reply they state that we didn't address, but all of these cases stem from the Johnson case which we do

[00:14:33] Speaker 01:
So in Johnson, the defendants moved for summary judgment on the basis that there was no evidence that they were present at the time of the alleged constitutional violation and that they had nothing to do with it.

[00:14:46] Speaker 01:
Similarly here, the defendants are arguing that they're entitled to summary judgment because there's no evidence that they personally participated in the constitutional violation that Paterson alleges.

[00:15:00] Speaker 01:
that there's an absence of a genuine issue of material fact as to whether they were deliberately indifferent to Patterson's serious medical need.

[00:15:11] Speaker 01:
They simply claimed without more that there is uncontroverted

[00:15:18] Speaker 01:
point only to documents indicating that he had a dozen or so appointments, but don't discuss any actual treatment that he received.

[00:15:26] Speaker 01:
And so the constitutional violation here is premised from the deny the delay in the intentional interference that the defendants caused violating his constitutional right not that there's a difference in medical judgment as the appellants have continued to argue.

[00:15:51] Speaker 01:
that the defendant did the deeds alleged.

[00:15:52] Speaker 01:
And Johnson also explains that a claim of immunity of suit is conceptually distinct from the merits of the claim.

[00:15:59] Speaker 01:
That the plaintiff's rights have been violated.

[00:16:02] Speaker 01:
Johnson sides to a prior case.

[00:16:03] Speaker 01:
Elliott Thomas, which puts it more simply explaining that whether the defendants did the deeds alleged is precisely the question for trial.

[00:16:12] Speaker 01:
And again, that's what the

[00:16:19] Speaker 01:
But again, that's a conflation of the evidentiary sufficiency argument that they're trying to pose as a qualified immunity argument.

[00:16:28] Speaker 01:
They're saying that they're entitled to qualified immunity because the plaintiff or the appellee, Patterson, can't meet the elements of the 8th Amendment claim, not because there was a determination of uncontested facts.

[00:16:42] Speaker 01:
And on that basis, there was some clearly established law or lack of clearly established law that needs to be assessed.

[00:16:58] Speaker 01:
So as in Johnson, again, the defendants are claiming they're entitled to qualified immunity, but based entirely on the argument there aren't sufficient facts in the record demonstrating that they personally participated or were deliberately indifferent to Paterson's serious dental needs.

[00:17:12] Speaker 01:
And again, this is a merits question.

[00:17:18] Speaker 01:
that there is evidence of their personal participation.

[00:17:19] Speaker 01:
However, I will say if the court does choose to engage in wholesale review the record.

[00:17:24] Speaker 01:
You will find that there is evidence of their personal participation.

[00:17:28] Speaker 01:
So for example, the when the lower court the appellees brought up the fact that there's dental charts that show that appointments occurred and what the court pointed out the

[00:17:46] Speaker 01:
the fact that he had appointments doesn't indicate that there was treatment.

[00:17:50] Speaker 01:
There's no discussion or identification of actual treatment.

[00:17:53] Speaker 01:
And when you take that in conjunction with the fact that there's kites over the course of years, where Patterson continuously complains about lack of treatment, that he's told Sullivan and Vargas, at least, before Benson comes into the picture, that he needs help, that they're ignoring him, that he's in pain, that he has nausea.

[00:18:14] Speaker 01:
that he was not in fact getting treatment and a reasonable drug could rely on that to show that there was knowledge that they were ignoring him that they were intentionally denying and delay the treatment.

[00:18:26] Speaker 01:
As for Benson little more complicated he was originally listed as

[00:18:30] Speaker 01:
I'm going to talk about this a little bit.

[00:18:39] Speaker 01:
When you look back into December 2019 grievances that he filed.

[00:18:49] Speaker 01:
that he had with Vargas as well as Benson, who again he just says is the new male dentist, but it's the John Doe, about how he was appalled at the lack of treatment that he was receiving under Peterson's tenure.

[00:19:03] Speaker 01:
And then when you look at those same dental charts that the appellate or the appellants brought up, it shows that there was still despite in December 2019, Benson being aware of this,

[00:19:16] Speaker 01:
that he doesn't have an appointment with Benson until, I believe, it's October of 2020, showing that despite, again, allegedly knowing and having this conversation about the lack of treatment, that he still wasn't seen for some time.

[00:19:29] Speaker 01:
And even then, it doesn't indicate that actual treatment was received to resolve the problems that he was experiencing.

[00:19:41] Speaker 01:
And I'll get those numbers for you.

[00:19:48] Speaker 01:
So the grievance where he discusses these events, that's ER 483.

[00:19:55] Speaker 01:
That's where he talks about Jenny Vargas having a conversation with her.

[00:20:00] Speaker 01:
And then again, the new male dentist, which was substituted, and as Keith Benson later, having knowledge.

[00:20:06] Speaker 01:
And again, that's signed as December of 2019.

[00:20:08] Speaker 01:
There is a kite, which we cite in our briefing brief, ER 269.

[00:20:14] Speaker 01:
That is where he

[00:20:15] Speaker 01:
He identifies Peterson, who was still in the picture at this time, and then Vargas and Sullivan, knowing about his need for treatment, not providing him with treatment.

[00:20:25] Speaker 04:
All right, counsel, thank you.

[00:20:27] Speaker 04:
You've exceeded your time.

[00:20:28] Speaker 04:
We thank you for taking this case pro bono, and we belatedly thank prior counsel in the prior case for taking this case pro bono.

[00:20:35] Speaker 04:
Thank you very much.

[00:20:36] Speaker 04:
Thank you.

[00:20:36] Speaker 04:
Rebuttal?

[00:20:43] Speaker 03:
Thank you, Your Honors.

[00:20:45] Speaker 03:
In Howard, this court recently clarified that not withstanding the rule of sufficiency of the evidence on interlocutor appeals, this court has jurisdiction when plaintiff's claims are premised on bare allegations without evidence.

[00:20:57] Speaker 03:
To prove an 8th Amendment violation, Patterson must establish that each individual defendant

[00:21:02] Speaker 03:
participated in Paterson's dental care issue in his complaint and knowingly disregard an excessive risk to Paterson's health, which is not possible because Paterson does not point to any evidence of record that any defendant had any involvement in his dental care prior to submitting his complaint in May 14, 2020.

[00:21:21] Speaker 03:
So with no evidence in the record,

[00:21:23] Speaker 03:
It can't possibly be deliberately different.

[00:21:25] Speaker 03:
The only person identified as having any involvement in Patterson's dental care prior to May 14, 2020 is Dr. Peterson, who unfortunately passed away and was dismissed from the case.

[00:21:37] Speaker 03:
Finally, defendants are entitled to qualified immunity because they did not violate any clearly established law.

[00:21:42] Speaker 03:
Defendants have not pointed to any authority where a prison official violated the 8th Amendment when an inmate fails to provide any evidence that an official was personally participating in an inmate's dental care.

[00:21:52] Speaker 03:
To the contrary, Peralta rejected all those claims.

[00:21:55] Speaker 03:
Patterson also failed to point to any authority where deliberate indifference was found

[00:21:59] Speaker 03:
though an inmate was provided extensive treatment over the course of a period of years when an expert has not opined that the treatment provided was medically unacceptable under the circumstances.

[00:22:10] Speaker 03:
Accordingly, defendants are entitled to qualified immunity and this court should therefore reverse the district court order denying defendants motion for summary judgment.

[00:22:18] Speaker 03:
Thank you your honor.

[00:22:18] Speaker 04:
Thank you.

[00:22:19] Speaker 04:
Thank you both counsel.

[00:22:21] Speaker 04:
The case just argued is submitted for decision by the court.