[00:00:02] Speaker 03: Council, we'd like to thank you on behalf of the court for taking this case pro bono. [00:00:06] Speaker 04: My pleasure, your honor. [00:00:07] Speaker 04: Thank you. [00:00:11] Speaker 04: May it please the court, William Seidluck on behalf of Appellant Harold Edwards. [00:00:15] Speaker 04: I'd like to reserve two minutes for rebuttal. [00:00:17] Speaker 04: All right. [00:00:18] Speaker 04: Mr. Edwards never received the required notice under this court's Anbach decision in Rand versus Rowland, which provides a substantial right to pro se prisoner litigants to know what they must do to oppose summary judgment. [00:00:31] Speaker 04: This hampered Mr. Edwards from compiling a proper summary judgment record. [00:00:36] Speaker 04: This court must reverse. [00:00:45] Speaker 04: Mr. Edwards still has a potential claim for equitable remedies. [00:00:50] Speaker 04: He has been moved several times, and the district court never had the chance, never had the opportunity to examine whether he still has a reasonable fear of being returned to Southern Desert Correctional Institute to one of the older cell blocks. [00:01:08] Speaker 04: Also, he is continuing to pursue nominal damages. [00:01:14] Speaker 03: delve into those. [00:01:16] Speaker 03: So why is it that a claim for equitable remedies would defeat mootness? [00:01:23] Speaker 04: Yes, your honor. [00:01:25] Speaker 04: Because Mr. Edwards could still potentially receive an injunction if the district court were able to examine and then find. [00:01:34] Speaker 00: What would the injunction be? [00:01:36] Speaker 00: Because he's not in a cell that doesn't have what he considers to be inappropriate fire prevention. [00:01:43] Speaker 04: Yes, Your Honor. [00:01:44] Speaker 04: The injunction would be that preventing the state from moving him back to one of the older cell blocks. [00:01:51] Speaker 05: But does either of these defendants control transfers? [00:01:56] Speaker 05: I mean, the defendants that you've named in this action? [00:01:59] Speaker 04: Your Honor, presumably, again, these are things that the district court could look at on remand. [00:02:06] Speaker 02: But presumably, the direct- Put it to record as it stands now, so tell us [00:02:10] Speaker 02: The answer to that question. [00:02:11] Speaker 04: Sure. [00:02:12] Speaker 04: The record as it stands now is unclear as to who has actual control. [00:02:18] Speaker 04: And again, these are things that could be examined by the district court on remand. [00:02:24] Speaker 04: But ultimately, the issues that Mr. Edwards is presenting here also are still bound up with his claim for nominal damages. [00:02:34] Speaker 03: So nominal damages. [00:02:38] Speaker 03: The difficulty I have with that is the cases that you cited include circumstances where there had already been proof of an injury. [00:02:48] Speaker 03: And then nominal damages would be the remedy for that. [00:02:52] Speaker 03: But that's not what we have here. [00:02:54] Speaker 03: So how could the existence of potential nominal damages defeat mootness? [00:03:01] Speaker 03: And give me a case, if you will, that supports that proposition. [00:03:06] Speaker 04: Sure, Your Honor. [00:03:07] Speaker 04: All of this is bound up in the issue of the Rand notice. [00:03:12] Speaker 04: Mr. Edwards didn't receive, didn't have the opportunity. [00:03:15] Speaker 03: We have to get through mootness before you get to the Rand notice. [00:03:18] Speaker 03: So if this case is moot, it doesn't matter about whether or not the Rand notice is proper. [00:03:24] Speaker 03: Because if there is no remedy that can be given, then the case should be, the appeal should be dismissed. [00:03:32] Speaker 03: Would you agree? [00:03:33] Speaker 04: Well, Your Honor, ultimately, there needs to be a summary judgment record, a proper summary judgment record, before the court can get to the question of remedies. [00:03:44] Speaker 03: Right. [00:03:44] Speaker 03: But right now, we're at the question of mootness. [00:03:47] Speaker 04: Yes. [00:03:48] Speaker 03: So the question I had was, what case do you have that says nominal damages in the abstract, absent a judgment, defeats mootness? [00:04:01] Speaker 04: Your Honor, the best case that I can think of and point to would be the Supreme Court's recent Ouziboonam case. [00:04:07] Speaker 04: Which one? [00:04:08] Speaker 04: The Supreme Court's Ouziboonam case, yes, which we cite in our brief. [00:04:14] Speaker 03: Did that involve nominal damages pre-liability finding? [00:04:22] Speaker 04: Your Honor, I would have to go back and look. [00:04:25] Speaker 04: And I can provide you an answer on rebuttal. [00:04:30] Speaker 05: Can I ask you to go back to the injunctive relief mootness question? [00:04:36] Speaker 05: So the defendants cite this [00:04:39] Speaker 05: Department of Corrections Administrative Regulation 552, which says that it's the Deputy Director of Programs and the Offender Management Administrator who are responsible for transfer and not the defendants that you've named here. [00:04:55] Speaker 05: So that's not a question of the record, that's just a question of Nevada administrative law, I suppose. [00:05:01] Speaker 05: Do you think they're wrong about that? [00:05:03] Speaker 04: Well, Your Honor, [00:05:06] Speaker 04: Ultimately, these are questions that can and should be addressed on remand. [00:05:13] Speaker 04: If the district court were able to conclude that there isn't a proper defendant here, then the court could simply dismiss. [00:05:25] Speaker 05: But I guess my question is, if we were to remand, it's a pure question of law. [00:05:29] Speaker 05: So if we were to remand, would you make some argument to the district court that these defendants [00:05:35] Speaker 05: do have control over transfers? [00:05:38] Speaker 05: And if so, what would that argument be? [00:05:40] Speaker 04: Ultimately, Your Honor, it's a question that hasn't been fleshed out, and at least not with the current record. [00:05:47] Speaker 04: And so it's something that, on remand, that Mr. Edwards' attorney would do. [00:05:56] Speaker 05: I think what that amounts to is a suggestion that we should ignore the issue for now and let the district court deal with it. [00:06:05] Speaker 05: after remanding, and then the remand would have to involve our making a determination that the district court was wrong on the merits. [00:06:12] Speaker 05: And how can we do that when the question you're asking us to skip over goes to whether there's a federal jurisdiction? [00:06:19] Speaker 04: You don't have to get to the question of whether the district court is incorrect on the merits. [00:06:26] Speaker 04: All you simply need to do is recognize that Mr. Edwards didn't have the opportunity to build a proper record, which includes questions about mootness, includes questions about whether he has a reasonable fear of being returned to the prior prison, just given the number of times that he has been moved around by the state. [00:06:54] Speaker 04: And ultimately, again, these are questions that are very bound up and record based. [00:07:00] Speaker 04: And I think it would be premature for this court to jump in before these issues have been fully fleshed out in the record by the district court. [00:07:15] Speaker 04: This court's specific instructions in Rand entitled Mr. Edwards to notice of the consequences of having summary judgment entered against him and the steps that he needed to take to oppose the government's motion. [00:07:29] Speaker 04: And the government's withholding that notice here compels reversal without undertaking a harmless error analysis. [00:07:37] Speaker 04: And this lack of notice prejudiced Mr. Edwards' ability to point to a factual dispute about whether [00:07:44] Speaker 05: One defendant had subjective knowledge of his conditions and his complaints when we when you look at rand and You know has this very curious appendix. [00:07:55] Speaker 05: It's like a Miranda warning except longer and then you look at the section of your clients [00:08:06] Speaker 05: district court filing his opposition to summary judgment, and he has a section standard for summary judgment. [00:08:12] Speaker 05: And it seems like just about everything that's in the Rand appendix is in that section of his brief. [00:08:20] Speaker 05: So what would you point to to show that having given him the Rand notice would have led him to do something different? [00:08:28] Speaker 04: Yes, Your Honor. [00:08:30] Speaker 04: The fact that even though he cites, even though he parrots back word for word, essentially, the government's summary judgment standard in their brief, he doesn't then actually follow the practice under Rule 56. [00:08:48] Speaker 04: Most notably, he instructs the district court to consider all of the facts alleged in his pleadings and motions. [00:08:59] Speaker 04: And he also generally cites, makes general assertions about, for example, there being no prison in the country that is not up to fire safety code. [00:09:15] Speaker 04: Even though he does write out a summary judgment standard, he still never received the directions in plain English. [00:09:25] Speaker 04: And he's demonstrated just through his papers that he actually didn't understand, have a comprehensive understanding of how to undertake. [00:09:34] Speaker 05: I think that's a very fair point. [00:09:36] Speaker 05: I don't dispute that he did not have an understanding of how it all worked. [00:09:43] Speaker 05: I mean, maybe this is a criticism of Rand. [00:09:44] Speaker 05: The Rand notice does not make sure that he understands it at all. [00:09:50] Speaker 05: It understands how everything works. [00:09:51] Speaker 05: It just gives him the notice. [00:09:53] Speaker 05: And when he has written out something that is essentially the same as what the notice would be, [00:09:58] Speaker 05: There may be a lack of understanding, but that doesn't seem like something that would be fixable by the notice. [00:10:04] Speaker 04: Well, Your Honor, Rand itself actually engaged with a similar situation where the pro se party in Rand had also been given by the district court, if I'm remembering correctly, basically a [00:10:24] Speaker 04: summary judgment standard with citations to cases, much like you would see in a brief. [00:10:30] Speaker 04: And this court still, in Rand, concluded that that was insufficient because it was not in plain English. [00:10:37] Speaker 04: It was not phrased in a way that the court could be sure that the party actually had a comprehensive understanding of what needed to be done to oppose summary judgment. [00:10:48] Speaker 04: And ultimately, it's a prophylactic rule to ensure that pro se parties are truly on notice about what they need to do, to ensure that we don't end up with situations like this, where we have an undeveloped factual record and we're even having to really work through even issues of mootness, which are so tied up with the record. [00:11:19] Speaker 04: And also, too, the district court itself made specific findings about Mr. Edwards' inability to investigate and litigate this case. [00:11:29] Speaker 04: When the district court itself authorized the appointment of pro bono counsel below, who unfortunately never was appointed, the court recognized that Mr. Edwards had an inability to understand legal standards. [00:11:46] Speaker 03: But how would the Rand notice cure that? [00:11:49] Speaker 03: That's the difficulty. [00:11:50] Speaker 03: The RAND notice is calculated to tell what the standards are. [00:11:55] Speaker 03: But nothing about the RAND notice is supposed to inform the pro se litigant about what any of that means. [00:12:04] Speaker 03: So why would giving the RAND notice improve his ability to understand [00:12:11] Speaker 03: what he needed to do. [00:12:12] Speaker 04: It would be phrased in a more simple and direct way for the party to understand that he had, specifically in Mr. Edwards' case, that he couldn't just make generalizations about how the court should just examine the totality of his pleadings and motions. [00:12:30] Speaker 03: But if he parroted that in his pleading, how can we say that he didn't know that if he actually put that in his pleadings? [00:12:40] Speaker 04: From the simple fact that he didn't, as I was saying to Judge Miller, that he didn't actually follow the standard, particularly by making generalized references without citation. [00:12:54] Speaker 03: How would the Rand notice change that? [00:12:56] Speaker 04: The RAND notice would have told him that he had to cite particular evidence in the record in order to then provide evidence that could contest the summary judgment motion. [00:13:12] Speaker 04: And the prejudice also extended to Mr. Edwards' ability to build a record regarding the actual Eighth Amendment violation. [00:13:21] Speaker 04: I do see that I'm coming up on my time, so I'll reserve the balance of my time. [00:13:24] Speaker 03: All right, thank you, counsel. [00:13:26] Speaker 03: We'll hear from the state. [00:13:39] Speaker 01: Good morning, Your Honors. [00:13:40] Speaker 01: Good morning, Council. [00:13:41] Speaker 01: Thank you for the opportunity to present my very first oral argument before this Court. [00:13:45] Speaker 01: May it please the court, my name is Myra Gray, Deputy Attorney General here on behalf of Respondents Charles Daniels and William Hutchins. [00:13:52] Speaker 01: This appeal presents three legal issues for this court's consideration, and unless the court has a particular preference, I will begin with the issue of mootness. [00:14:01] Speaker 01: Mr. Edwards' appeal is moot, and this court should dismiss it for a lack of jurisdiction. [00:14:06] Speaker 01: Although the district court did not address the issue of mootness, mootness is a subject matter jurisdiction issue that may be addressed at any time. [00:14:13] Speaker 01: Mr. Edwards concedes that he's been transferred to another prison that does have fire sprinklers and smoke alarms. [00:14:19] Speaker 01: In Dilley, this court held that when a prisoner is transferred, he must demonstrate that he has a reasonable expectation that he would be subject again to these allegedly unconstitutional conditions. [00:14:33] Speaker 00: Otherwise, his claim... What about his claim for nominal damages? [00:14:35] Speaker 00: So let's assume that we agree with you that the claim may be moved as to the request for injunctive relief. [00:14:41] Speaker 00: But what about [00:14:42] Speaker 01: The fact that he has At least asserted some generalized claim for nominal damages Yes, your honor so as one of your honors previously noted this case that mr. Edwards cites to in support of num of nominal damage damages overcoming the issue of muteness and [00:15:00] Speaker 01: It's inapplicable here. [00:15:02] Speaker 01: The Supreme Court in that case had a very narrow holding if and only if the first two elements of standing. [00:15:08] Speaker 01: I'm sorry, can you repeat? [00:15:09] Speaker 01: What case are you talking about? [00:15:10] Speaker 01: The Usenbaum case. [00:15:11] Speaker 01: That's the 2021 Supreme Court case that was referenced earlier by opposing counsel. [00:15:17] Speaker 01: That case simply is inapplicable here. [00:15:20] Speaker 01: It's distinguishable because in that case, the court held if and only if the first two elements of standing, that is injury in fact and that the injury is traceable to the challenge conduct, [00:15:30] Speaker 01: are not in dispute, then the third requirement of redressability may be met by a claim for nominal damages. [00:15:37] Speaker 01: Here, that is simply not the case. [00:15:39] Speaker 01: As your honors noted, the district court found that there was no constitutional violation. [00:15:43] Speaker 01: This is completely different from the plaintiff in that case. [00:15:46] Speaker 01: And furthermore, I would note that in the footnotes of that same case, there was a different plaintiff. [00:15:52] Speaker 01: And the Supreme Court expressly declined to address the issue of standing of that plaintiff because there was a question of fact, or a dispute, I apologize, as to whether or not [00:16:03] Speaker 01: the other two requirements for standing were met because it was not clear that there was a constitutional violation as to his claim. [00:16:10] Speaker 01: And so this case is just simply not applicable to Mr. Edwards and his reliance is misplaced because it does not apply. [00:16:19] Speaker 01: I would also like to note for the court's record because this issue goes to this court's subject matter jurisdiction, that there is currently a Nevada Public Works contract for the installation of fire sprinklers and smoke alarms at Southern Desert. [00:16:35] Speaker 01: Can we consider that evidence here on appeal? [00:16:38] Speaker 01: No, Your Honors, and I apologize. [00:16:39] Speaker 01: This contract was finalized after the briefing of this case was completed, but if Your Honors... Can't form the basis of any decision that we make today. [00:16:46] Speaker 01: No, Your Honor, that is correct. [00:16:48] Speaker 01: However, even just considering this court's precedent in Dilley, it's very clear that a claim that a prisoner might be transferred at some point in the future is too speculative to prevent mootness. [00:17:00] Speaker 01: So even if this court weren't to consider that under Dilley, it's still not sufficient to overcome the issue of mootness. [00:17:06] Speaker 03: What about the argument regarding the claim for equitable remedies as defeating mootness? [00:17:13] Speaker 03: What's your response to that? [00:17:15] Speaker 01: Well, Your Honor, I mean, I know it's not in the record, but it is a fact that eventually Southern Desert will have fire sprinklers and smoke alarms. [00:17:23] Speaker 03: Well, he said his equitable remedy is that he not be transferred to any cell that doesn't have the equipment that he desired. [00:17:31] Speaker 03: So why wouldn't that claim defeat a mootness argument? [00:17:38] Speaker 01: Well, Your Honor, it is very unlikely that Mr. Edwards would be transferred anyway. [00:17:41] Speaker 01: He's currently at High Desert, which is the maximum security prison in the state. [00:17:45] Speaker 01: There is no other prison that can house inmates who are in maximum custody. [00:17:50] Speaker 01: He notes that he was changed from Ely to High Desert. [00:17:53] Speaker 01: However, that change occurred specifically because there was a change in designation. [00:17:58] Speaker 01: Previously, Ely State Prison was our maximum custody prison, but is no longer the case. [00:18:03] Speaker 01: And they've changed it now to High Desert. [00:18:05] Speaker 01: And so it is unlikely he'd have to change his custody status. [00:18:08] Speaker 01: And that's still even more tentative and even more speculative, which again, under Dealy, is insufficient. [00:18:13] Speaker 03: Does the record reflect who has authority to effectuate transfers? [00:18:20] Speaker 01: Yes, Your Honor. [00:18:20] Speaker 01: Well, that is actually a matter of law. [00:18:22] Speaker 01: As was noted previously, that is under Administrative Regulation 552. [00:18:28] Speaker 01: And so those kinds of decisions are made by the offender movement management division. [00:18:34] Speaker 01: And it is not up to random prison officials to make these decisions. [00:18:38] Speaker 01: It is done by a separate division. [00:18:43] Speaker 05: You mentioned the footnote at the end of the Vizgabunum opinion. [00:18:51] Speaker 05: The nominal damages are unavailable when there isn't a past completed injury. [00:18:54] Speaker 05: So I take it your view then is that there is no [00:18:58] Speaker 05: Because there wasn't, in fact, a fire. [00:19:00] Speaker 05: There was no past injury from having been subjected to an unreasonable, allegedly unconstitutional risk of fire. [00:19:10] Speaker 05: What authority would you point to for that? [00:19:12] Speaker 01: Yes, Your Honor. [00:19:12] Speaker 01: Well, the fact that the district court found that there was no constitutional violation, that at a minimum creates a dispute as to whether or not there was a past injury. [00:19:20] Speaker 01: The district court found that there was no constitutional violation, and there was no objective serious risk of substantial harm. [00:19:25] Speaker 05: So even if there wasn't... But that seems like a merits question, right? [00:19:29] Speaker 05: So for purposes of mootness, I mean, his allegation is that he was subjected to an unconstitutional risk of harm. [00:19:38] Speaker 05: And I think for you to say that it's moot, [00:19:41] Speaker 05: and that nominal damages don't save it, I think you need to be able to say that having been subjected to an unconstitutional risk of harm for some period of time in the past is not a completed injury for which you can get nominal damages. [00:19:55] Speaker 05: Is there a case that says that? [00:19:59] Speaker 01: No, Your Honor, but the majority of case law that has addressed the issue of fire safety in prisons has found that even under conditions that were less comprehensive than the fire safety measures that were in place at Southern Desert at the time, [00:20:11] Speaker 01: they've still found that it's insufficient to state a claim for a violation of conditions of confinement. [00:20:19] Speaker 01: In fact, this court incline a 2017 case expressly rejected a claim that was very similar to Mr. Edwards. [00:20:27] Speaker 01: In that case, your honors noted that an Eighth Amendment claim based on a prison's faulty fire alarm system fails because the inmate did not suffer a sufficiently serious injury. [00:20:40] Speaker 01: And so as a matter of law, it just simply isn't enough. [00:20:44] Speaker 03: Before we leave the discussion of Zubin, but didn't the court in that case say that there had to be an established injury, in fact, in order for nominal damages to defeat mootness? [00:20:58] Speaker 03: And that would be done either by a concession of unconstitutionality or a determination by the court of unconstitutionality, correct? [00:21:08] Speaker 01: Correct your honor, and that's exactly why we would our position would be that it just it's simply unavailing to Mr. Edwards to overcome the issue of muteness But even if your honors were to disagree and you were to find that you do have jurisdiction over this appeal Nonetheless the respondents are entitled to qualified immunity Although the district court did not address qualified immunity this court may nonetheless make that determination in the first instance as you did in Carly v. Arenas a 2024 published opinion [00:21:37] Speaker 03: Well, counsel, if we decide not to do the issue of qualified immunity and we get to the merits of whether or not there was a constitutional violation, what's your response? [00:21:47] Speaker 01: Again, your honor, I would point that simply Mr. Edwards fails to show that he suffered a constitutional violation. [00:21:52] Speaker 01: He shows no objective risk of substantial harm. [00:21:55] Speaker 01: The district court properly noted that [00:21:58] Speaker 01: the fire safety measures that were in place at Southern Desert were enough. [00:22:02] Speaker 01: Notably, Southern Desert is and has always been in compliance with Nevada's fire codes, and it has been subject to fire safety inspections by the Nevada Fire Marshal every year. [00:22:13] Speaker 01: Again, the majority of case law addressing this issue has noted that under even less comprehensive measures than those in place at Southern Desert, there's still no constitutional violation. [00:22:22] Speaker 01: And so Mr. Edwards simply cannot establish an Eighth Amendment violation. [00:22:25] Speaker 00: Do we really even need to go that far? [00:22:27] Speaker 00: I mean, the district court also concluded that there was no evidence to show that these two individual defendants were involved in any way or participated in the alleged constitutional violation. [00:22:38] Speaker 00: So why is that not enough to resolve the claims at issue without having to go to the merits of the broader constitutional alleged violation? [00:22:52] Speaker 01: That's correct, your honor. [00:22:53] Speaker 01: That's another basis that this court may use to affirm the district court's decision. [00:22:57] Speaker 03: But opposing counsel says that was because the Rand notice didn't give the plaintiff enough direction. [00:23:06] Speaker 03: The lack of the Rand notice deprived him of the direction to put into the record personal participation. [00:23:14] Speaker 01: Yes, your honor. [00:23:14] Speaker 03: That's the problem with that argument. [00:23:16] Speaker 01: Well, Your Honor, Mr. Edwards' lack of RAND notice is harmless error. [00:23:21] Speaker 01: This court in Labotage specifically addressed and rejected this kind of argument. [00:23:25] Speaker 01: Nothing in the RAND notice would have given the plaintiff specific instructions on what more affidavits needed to make them competent evidence. [00:23:33] Speaker 01: So as Your Honor noted, it simply does not remedy the issue that Mr. Edwards is bringing up. [00:23:38] Speaker 01: It wouldn't have helped him. [00:23:39] Speaker 01: And because it wouldn't have helped him, it's harmless error. [00:23:42] Speaker 01: Going back to the issue of personal participation, Your Honor is correct. [00:23:47] Speaker 01: The record does not show that respondents ever received written notice. [00:23:50] Speaker 00: Just to be clear, I'm not making that statement. [00:23:53] Speaker 00: I'm telling you that that's what the district court concluded and I'm asking you why we wouldn't [00:23:58] Speaker 00: stop there as opposed to going further to the constitutional question? [00:24:02] Speaker 01: I apologize, Your Honor. [00:24:03] Speaker 01: That was not my intention. [00:24:04] Speaker 01: However, the district court did properly find that there was no personal participation. [00:24:09] Speaker 01: Simply mailing a letter to one of the respondents is not enough to complete the standard of subjective awareness to assert a constitutional violation. [00:24:22] Speaker 01: In Johnson v. Snyder, a Seventh Circuit case, [00:24:26] Speaker 01: There was an express holding that the fact that an inmate sends a letter to a prison director is insufficient to create a genuine issue of material fact, because there's no evidence that the director actually read the letter or had subjective awareness of the inmate's condition. [00:24:41] Speaker 01: And so even if Mr. Edwards could establish that the respondents had notice, his claim still fails. [00:24:49] Speaker 00: He didn't send a letter to one of the defendants, correct? [00:24:51] Speaker 00: There's an allegation that he had, in fact, written a letter [00:24:55] Speaker 00: one of the defendants, but not both. [00:24:57] Speaker 00: Is that right? [00:24:58] Speaker 01: That's correct. [00:24:59] Speaker 01: This was just Charles Daniels was one of the respondents, but not William Hutchins. [00:25:04] Speaker 01: But again, it's still insufficient because that doesn't mean that he actually had notice and the subjective awareness which is required under the Eighth Amendment. [00:25:12] Speaker 05: But if we're drawing, I mean, we have to draw all inferences, or the district court and us reviewing it had to draw all inferences in favor of the non-moving party. [00:25:20] Speaker 05: And I guess you're saying the Seventh Circuit didn't think so, but it seems like a natural inference that a person who was sent the letter would then be aware of what the letter said, isn't it? [00:25:31] Speaker 01: Yes, Your Honor, but the issue here is that that letter doesn't have any stamp or any date. [00:25:36] Speaker 01: There's no indication that it was ever sent. [00:25:38] Speaker 01: And this is contrary to another letter that was sent to Warden Jerry Howell at the time. [00:25:43] Speaker 01: And so that's the difference there, is that that letter actually did have the stampings, and it had a date, and it even received a response. [00:25:50] Speaker 01: But there's no evidence that this letter was ever sent to the respondent. [00:25:53] Speaker 01: Aren't those factual disputes? [00:25:55] Speaker 01: Yes, Your Honor, but even if you were to disagree with me on the notice issue, his claim still fails because, as was noted earlier, the respondents simply didn't have the authority to install the fire sprinklers and smoke detectors that Mr. Edwards wanted. [00:26:10] Speaker 01: Pursuant to NRS 33107, only the administrator of the Nevada Public Works Division has such authority. [00:26:17] Speaker 01: Under this court's decision in Peralta, this court declined to hold a public official liable when he lacked authority to address the alleged violation. [00:26:25] Speaker 01: A court cannot impute wrongdoing to an employee who himself has committed no wrong. [00:26:29] Speaker 01: As the respondents had no authority to install these fire sprinklers and smoke detectors, Mr. Edwards simply cannot establish that they were deliberately indifferent. [00:26:36] Speaker 03: But counsel, as a practical matter, the warden and the administrators could request from the administrator that those items be installed, correct? [00:26:50] Speaker 01: I'm not certain of that, but I won't disagree. [00:26:53] Speaker 01: And even assuming that that is the case, that they could have made the request and they didn't, his argument still fails. [00:26:59] Speaker 01: And this is because he cannot establish that the respondents acted unreasonably. [00:27:04] Speaker 01: The respondents relied on their compliance with the Nevada Fire Codes and the Nevada Fire States Marshal's yearly inspections to notify them of any fire safety risk issues. [00:27:13] Speaker 01: In Ditman v. California, this court held that a public official is entitled to qualified immunity when he acts in reliance on a duly enacted statute or ordinance unless the statute or ordinance is plainly violative of fundamental constitutional rights. [00:27:28] Speaker 01: He simply does not meet all the requirements to establish an Eighth Amendment claim. [00:27:31] Speaker 01: But even if he did, under qualified immunity, he also has to show that this violation was clearly established, and it simply isn't. [00:27:40] Speaker 01: Mr. Edwards points to no authority that shows that the defendants should have been on notice that a lack of fire sprinklers and smoke alarms would have violated his Eighth Amendment rights. [00:27:49] Speaker 01: Again, this court inclined expressly rejected a very similar claim. [00:27:54] Speaker 01: about a faulty prison fire alarm system. [00:27:57] Speaker 01: And so this court should affirm the district court's decision because Mr. Edwards has set forth no evidence that would establish a violation of a constitutional right, much less one that is clearly established as required to overcome qualified immunity. [00:28:10] Speaker 01: I see that my time is almost up, so I will briefly conclude, Your Honors. [00:28:14] Speaker 01: Further reasons explained in my oral argument today and set forth in my brief. [00:28:20] Speaker 01: This court should determine either that it lacks jurisdiction due to mootness or that the respondents are entitled to qualified immunity as a matter of law. [00:28:27] Speaker 01: There is no constitutional violation and no clearly established law. [00:28:32] Speaker 01: Finally, remand is not warranted due to a lack of RAND notice. [00:28:35] Speaker 01: As I explained, Mr. Edwards' [00:28:40] Speaker 01: Lack of Rand notice was harmless error it falls specifically into the exception that this court created in lab attack and as such Reversal is not warranted in this case. [00:28:52] Speaker 01: All right. [00:28:52] Speaker 01: Thank you counsel the bottle [00:29:02] Speaker 04: Thank you, Your Honor. [00:29:03] Speaker 04: Just a few points in rebuttal. [00:29:05] Speaker 04: To the Uzubunum case, Uzubunum explains and held that a request for nominal damages satisfies the Article III concerns where the plaintiff's claim is based on a completed violation of a legal right. [00:29:20] Speaker 04: And as the Supreme Court explained in Helling v. McKinney, a claim can be based on a possible future harm and then seek damages. [00:29:31] Speaker 05: There was a possible future harm, but now that it's passed, we know that there was no past harm, was there? [00:29:41] Speaker 04: Your Honor, as the Supreme Court has also explained, prisoners don't have to wait for there to be an actual tragedy. [00:29:48] Speaker 05: No, of course not. [00:29:50] Speaker 05: They can seek conjunctive relief. [00:29:52] Speaker 05: But the Article III injury in fact requirement, when you're seeking damages for some past injury, there has to actually have been a past injury. [00:30:02] Speaker 05: So what was the injury in fact from the constitutional violation that, as we now know, did not result in any [00:30:10] Speaker 04: Actual harm the injury in fact is was the exposure to to the potential harm at the time and we submit that Whether it be nominal damages or whether it be the the remedy of the injunction preventing his being sent back to Southern Desert correctional facility would [00:30:33] Speaker 04: The fact that his claim is based on that at least satisfies Article III. [00:30:39] Speaker 04: And then the remaining questions are simply merits questions and remedies questions. [00:30:45] Speaker 04: And then this case ultimately exemplifies why this court adopted Rand and why it also doesn't engage in harmless error analysis to give him the opportunity to build a record. [00:30:57] Speaker 04: Thank you, Your Honors, unless there are further questions. [00:30:59] Speaker 03: Thank you. [00:30:59] Speaker 03: And thank you once again, counsel, for taking this case [00:31:02] Speaker 03: Pro Bono, we really appreciate it. [00:31:03] Speaker 04: My pleasure, Your Honor. [00:31:04] Speaker 03: Thank you to both counsel for your helpful arguments. [00:31:06] Speaker 03: The case just argued is submitted for a decision by the court.