[00:00:01] Speaker 00:
May it please the court, my name is Estina Barlow and I represent Mona Salceda-Murillo, who's the plaintiff and the appellant in this case.

[00:00:08] Speaker 00:
I'd like to reserve two minutes for rebuttal, please.

[00:00:13] Speaker 00:
If I could, I'd like to focus on two issues this morning.

[00:00:16] Speaker 00:
The first is Joinder, because the district court made a legal error that requires reversal, at least as to Lopez and Garcia, the laundry supervisors.

[00:00:25] Speaker 00:
The district court overlooked the fact that Ms.

[00:00:27] Speaker 00:
Murillo's claims have a factual and legal through line.

[00:00:31] Speaker 00:
The wardens, the kitchen supervisors, and the laundry supervisors all participated in or were deliberately indifferent to the denial of Ms.

[00:00:38] Speaker 00:
Murillo's work boots, which led her to fall in the kitchen and sustain serious injuries.

[00:00:44] Speaker 02:
Were those claims dismissed without prejudice due to the jointer?

[00:00:49] Speaker 00:
Yes, they were, Your Honor.

[00:00:49] Speaker 02:
And have they been refiled anywhere, or could they be refiled?

[00:00:54] Speaker 00:
They have not been refiled.

[00:00:55] Speaker 00:
At this point, they could not be refiled due to the statute of limitations.

[00:00:59] Speaker 04:
Wouldn't the statute of limitations have run?

[00:01:01] Speaker 04:
Oh, now.

[00:01:02] Speaker 04:
But they could have been refiled as soon as the joiner was dismissed, because presumably the statute would have been told pending their joiner in the case.

[00:01:13] Speaker 00:
At the time, they could have been refiled.

[00:01:14] Speaker 00:
Right.

[00:01:15] Speaker 04:
But now it's gone.

[00:01:18] Speaker 04:
Can you address the standard of review?

[00:01:19] Speaker 04:
Because I know you're saying that this should be de novo, because it's a legal question.

[00:01:24] Speaker 04:
But even the way you just described it is very fact intensive, right?

[00:01:29] Speaker 04:
And so if it's a factual question about whether it's the same transaction or occurrence, doesn't that get us into abuse of discretion land?

[00:01:41] Speaker 00:
I don't think so, Your Honor.

[00:01:42] Speaker 00:
Under Rush v. Sport Chalet, the satisfaction of Rule 20's prerequisites is reviewed de novo.

[00:01:49] Speaker 00:
And I don't think the cases the defendants cite are to the contrary because they're speaking to the Joinder inquiry as a whole rather than those prerequisites.

[00:01:56] Speaker 00:
And I recognize that

[00:01:57] Speaker 00:
to evaluate whether a complaint, whether claims arise from the same transaction or occurrence requires a close analysis of the complaint and the facts alleged.

[00:02:07] Speaker 00:
But these same requirements appear elsewhere in the federal rules of civil procedure and the court reviews them de novo in those contexts as well.

[00:02:17] Speaker 00:
So for example,

[00:02:18] Speaker 00:
under rule 15 whether a complaint relates back turns on whether the amendment arises from the same transaction or occurrence as the original and this court reviews that question de novo the same is true for the other prerequisite whether there's a common question of law or fact that's a prerequisite for permissive joiner under rule 24 B and This court has held that that's a legal question.

[00:02:41] Speaker 04:
That's reviewed de novo even though it's interesting because common question of law is

[00:02:46] Speaker 04:
I mean, I'm not sure if you can treat the two differently, but in my mind, common question of law leans more towards the de novo review, because it is a legal question.

[00:02:56] Speaker 04:
You're analyzing whether the legal questions are the same.

[00:03:00] Speaker 04:
But once you get into transaction or occurrence, the inquiry almost inherently involves a factual analysis, which we normally defer to the district court on.

[00:03:10] Speaker 00:
Well that's one reason I think that rule 15 is a really helpful analogy because there the requirement is also a common transaction recurrence and this court reviews that de novo and I think that it's at the end of the day the question is whether the allegations suffice to satisfy the prerequisites of rule 20 and that's every bit a legal question as whether the allegations in a complaint

[00:03:33] Speaker 00:
state a claim.

[00:03:34] Speaker 00:
It requires a lot of engagement with those allegations, but is still a legal determination at the end of the day.

[00:03:40] Speaker 03:
Just so I understand your theory on, because we have quite a bit of precedent that says that this same transaction or occurrence termination is an abuse of discretion, right?

[00:03:52] Speaker 03:
You acknowledge that.

[00:03:53] Speaker 03:
And then we have a few cases that you cited that talk about it being

[00:03:59] Speaker 03:
de novo, but in those cases, as my understanding is, it is very much sort of a legal, it's a legal question whether or not it's the same, because sometimes whether it's the same transaction will turn on a legal inquiry.

[00:04:11] Speaker 03:
So what is your theory for, are you just saying some of these cases that we have are wrong, like Johnson versus high desert state, President Coughlin, some of these are wrong, or do you have a theory that explains, and I thought I heard maybe your view is that

[00:04:28] Speaker 03:
The overarching thing is abuse of discretion, but the particular issue here is a legal question that seems almost backwards to me.

[00:04:37] Speaker 03:
It seems to me like generally you zoom out and it becomes more of a legal question, but when you get in, if it's factual, then you'll review it for a factual question for abuse of discretion.

[00:04:50] Speaker 03:
But you're saying you think it's the opposite of that.

[00:04:52] Speaker 00:
Yeah, I think all of this court's cases can be reconciled along the lines I'm describing, where the question of whether defendants can be joined is a legal question, but then the district court has discretion after it's determined whether the parties can be joined to take considerations of fairness and prejudice into account when deciding whether to sever claims.

[00:05:14] Speaker 03:
And so in here, because the district court didn't get to those latter issues, you think it's purely a legal question in this case.

[00:05:21] Speaker 00:
We're sent back the subsequent inquiry would win theory under your view be abuse of discretion That's correct your honor and I think if you take a close look at some of the cases that the defendants have cited They're also doing exactly the sort of inquiry that I'm talking about so this NDB Bank of America is a really helpful example where when the court is talking about the prerequisites, it's just a

[00:05:44] Speaker 00:
determining whether it thinks those requirements are satisfied without deferring to or even engaging with the district court's opinion, but then when it talks about sort of practical impediments to litigation or the risk of duplicative discovery, the court is deferring to the district court and engaging with its reasoning and applying more deferential review.

[00:06:04] Speaker 00:
And I do think, you know, you mentioned that this structure seems sort of backward, but I do think it's one that we see elsewhere in the federal rules.

[00:06:11] Speaker 00:
I mentioned Rule 24B, which the requirements are reviewed de novo, but the inquiry as a whole is reviewed for abuse of discretion.

[00:06:21] Speaker 00:
ultimate decision on permissive intervention.

[00:06:23] Speaker 00:
We think the same rule applies here.

[00:06:25] Speaker 00:
And the last point I'd want to make on that is, you know, if you're skeptical of our reading of Rush and think that we're overstating it, you don't have to take our word for it.

[00:06:35] Speaker 00:
We didn't cite this case in our briefs, and I apologize for that, but the Seventh Circuit has read Rush the same way in a case called Dorsey v. Varga.

[00:06:43] Speaker 00:
That's at 55F41094.

[00:06:45] Speaker 00:
And that court, like Rush, held that the prerequisites of Rule 20 are reviewed de novo, even though the overall inquiry is reviewed for abuse of discretion.

[00:06:55] Speaker 00:
I'd like to spend just a minute talking about exhaustion, if that's all right.

[00:07:00] Speaker 04:
There's one argument that we think- Just to streamline this a little bit, you agree that most of these were not exhausted.

[00:07:08] Speaker 04:
Your argument seems to be he didn't need to because it would have been futile.

[00:07:13] Speaker 00:
Yes, our argument is that administrative remedies weren't available to her because there are various arguments.

[00:07:21] Speaker 00:
I think the most straightforward is because CDCR gave her incorrect information when it rejected her grievance about the fall in the kitchen.

[00:07:28] Speaker 00:
This is the rejection letter that said, please rewrite your appeal to address only workman's comp, as all other issues have already been addressed.

[00:07:36] Speaker 00:
That tells Ms.

[00:07:37] Speaker 00:
Morial.

[00:07:37] Speaker 03:
So you're relying more on

[00:07:39] Speaker 03:
Because in theory, I think two, maybe more than two, two reasons why it wouldn't be available.

[00:07:43] Speaker 03:
One would be that the person's been given the wrong information as to how to do it, right?

[00:07:51] Speaker 03:
Or maybe it's an opaque process.

[00:07:54] Speaker 03:
The other is intimidating the prisoner, right?

[00:07:57] Speaker 03:
And it sounds like you're relying more on the former.

[00:07:59] Speaker 00:
I think we have both arguments.

[00:08:01] Speaker 00:
I just think the most straightforward is to focus on the fact that she received it.

[00:08:04] Speaker 03:
Because on the latter one, the problem for intimidation is just so many grievances continue to be filed here.

[00:08:11] Speaker 03:
So it's a little bit hard factually to say that they're intimidated.

[00:08:15] Speaker 00:
We think there's still evidence that she was actually deterred from filing grievances, for example.

[00:08:20] Speaker 04:
We could have had more.

[00:08:21] Speaker 00:
Yes.

[00:08:21] Speaker 00:
I think that's right, Your Honor.

[00:08:23] Speaker 00:
And I do think we see that in the record, where she writes a letter.

[00:08:25] Speaker 00:
She starts using informal.

[00:08:27] Speaker 04:
Oh, I believe she could file more.

[00:08:28] Speaker 04:
She seems very, very capable of filing grievances.

[00:08:32] Speaker 00:
Yes.

[00:08:32] Speaker 00:
I'd emphasize, I think, that the incorrect instructions argument is the most straightforward.

[00:08:36] Speaker 00:
But we think there are a lot.

[00:08:38] Speaker 03:
So when a prison makes, if a prison did make a mistake, and I don't know, but assuming,

[00:08:45] Speaker 03:
In your in your favor that the prison makes a mistake how often does the prison have to make a mistake before?

[00:08:50] Speaker 03:
It's just one mistake means that the that the grievance Process is now waived or I think for all for all grievances.

[00:09:00] Speaker 03:
That's what I mean I can understand I suppose the argument for the fact for that grievances waived but for all of them I

[00:09:06] Speaker 00:
I think that under Nunez v. Duncan, the question is whether the incorrect information prevented the plaintiff, the inmate, from exhausting the claims at issue.

[00:09:16] Speaker 00:
And here, the incorrect instructions she received effectively said, don't file further grievances about the fall in the kitchen.

[00:09:25] Speaker 00:
And so that would have covered the claims that we're seeking to bring here with respect to both the wardens and the kitchen supervisors, all of which stem from that fall.

[00:09:34] Speaker 03:
And I'm trying to, there's so many different grievances, but were all of the people named in that grievance that you're saying, all of the various people named that you're saying they were waived for?

[00:09:50] Speaker 03:
I thought some of them weren't waived.

[00:09:51] Speaker 03:
They said the kitchen team or something like that.

[00:09:53] Speaker 00:
Sure, Your Honor.

[00:09:54] Speaker 00:
So the wardens were expressly named in that grievance.

[00:09:57] Speaker 00:
The kitchen supervisors weren't.

[00:09:59] Speaker 00:
But I don't think that's a problem for this argument.

[00:10:01] Speaker 00:
And I can explain why if I can just take a little bit more time to do so.

[00:10:05] Speaker 00:
I see I only have 10 seconds left.

[00:10:07] Speaker 04:
No, you're fine if Judge Van Dyke wants to keep you up there.

[00:10:11] Speaker 00:
Great.

[00:10:12] Speaker 00:
I do think that this is an important point.

[00:10:14] Speaker 00:
From Ms.

[00:10:15] Speaker 00:
Maria's perspective, the incorrect instructions she received were don't file any further grievances about the fall in the kitchen unless they're related to workers' compensation.

[00:10:24] Speaker 00:
From her perspective, that means don't file any further grievances about the wardens and also don't file any further grievances about the kitchen supervisors.

[00:10:32] Speaker 00:
The whole discussion about the regulations that require Ms.

[00:10:36] Speaker 00:
Murillo to name the staff that were involved in misconduct aren't relevant to this argument.

[00:10:43] Speaker 00:
They're relevant to our improper screen-out argument.

[00:10:46] Speaker 00:
But under Nunez v. Duncan, when a prisoner receives incorrect information, she just has to take reasonable and appropriate steps to exhaust.

[00:10:52] Speaker 00:
She doesn't have to show that she filed a grievance that would have sufficed to exhaust.

[00:10:57] Speaker 04:
OK, we'll give you time for rebuttal.

[00:10:59] Speaker 00:
Thank you very much.

[00:11:01] Speaker 04:
We'll hear from the appellee.

[00:11:13] Speaker 01:
Good morning, your honors.

[00:11:14] Speaker 01:
Deputy Attorney General George Morris on behalf of the police.

[00:11:18] Speaker 01:
I'll start with Joinder since that's what my friend on the other side started with.

[00:11:23] Speaker 01:
The standard of review should be of use of discretion.

[00:11:27] Speaker 01:
I know that council here had said that Rush states that it's a

[00:11:31] Speaker 01:
de novo review, but I think that that was an over oversimplified stating of the standard because in the rush case it was just a legal conclusion that was being addressed there, so the question in rush was Was the landlord and the tenant jointly and several liable so that they had to be joined together as a party now that is a legal question and so that's what rush addressed and

[00:11:56] Speaker 01:
But as Judge Van Dyke noted in Johnson v. High Desert, this court said that the standard of review is abuse of discretion, but you look at any underlying legal conclusions de novo.

[00:12:10] Speaker 01:
But here, this is a factual, intensive inquiry.

[00:12:15] Speaker 01:
And it's joined under 20, which is permissive jointer.

[00:12:18] Speaker 01:
So this is a may join these parties.

[00:12:22] Speaker 01:
I can't think of a more

[00:12:23] Speaker 01:
Analysis that's more fact intensive and deserves scrutiny than trying to figure out with 20 different defendants and seven different claims over a large period of time that the court has to be able to use its discretion to determine whether or not these facts are related and I think that that's what the court here did and I think Judge Seaborg did not abuse the

[00:12:46] Speaker 01:
his discretion in looking at all of these different claims against all of these different defendants and deciding which was proper under Coughlin.

[00:12:54] Speaker 04:
I mean that seems to be your best argument because when you start parsing it out you can definitely see why you could come to a different conclusion.

[00:13:02] Speaker 04:
I mean there is definitely some overlap here and you could see a judge reaching

[00:13:09] Speaker 04:
you know, a different analysis to say these are the same transaction or occurrence, depending on how broadly you interpret that language.

[00:13:15] Speaker 04:
I mean, I think generally it's interpreted pretty broadly.

[00:13:19] Speaker 04:
But if it's abuse of discretion, it's hard to see how he abused his discretion here.

[00:13:23] Speaker 01:
Well, I agree with everything that you said there, your honor.

[00:13:25] Speaker 01:
And I think that that's why, because when you get into factual intensive analysis like this, it is a discretion that is being used by the judge.

[00:13:34] Speaker 01:
And there should be leeway there for the judge to do that.

[00:13:39] Speaker 01:
And Coughlin says that that's OK to do, that you can take the first claim and sever the other ones without prejudice.

[00:13:46] Speaker 01:
And as your honor has noted, Miss Murillo could have filed these claims.

[00:13:50] Speaker 01:
There was no statute of limitations issue, so there was no prejudice whatsoever.

[00:13:54] Speaker 04:
But she was representing herself at the time, correct?

[00:13:58] Speaker 04:
Does that have, I mean, I don't know that that has any bearing on it, but she didn't have the capable counsel she now does to sort of highlight that issue.

[00:14:07] Speaker 01:
Well, Your Honor, I understand the proceeds, the pleadings are construed more liberally, but they are still required to follow the federal rules of procedure and follow the instructions by the judge.

[00:14:18] Speaker 01:
And so she could have refiled and did not.

[00:14:22] Speaker 01:
And again, there was no prejudice because at the time there was no statute of limitations issue.

[00:14:29] Speaker 01:
So moving on to the exhaustion issue, and as Your Honors again also noted, there are a lot of different grievances.

[00:14:36] Speaker 01:
But it really is pretty simple, because there's four defendants in this case.

[00:14:40] Speaker 01:
And she did not exhaust for any of them.

[00:14:44] Speaker 01:
The officer Lepe, there was one grievance against her.

[00:14:50] Speaker 04:
So it seems to be clear.

[00:14:53] Speaker 04:
I think there's agreement that she didn't exhaust.

[00:14:55] Speaker 04:
The question is, I guess there's really two questions.

[00:14:59] Speaker 04:
Was she told precisely why they were being denied?

[00:15:04] Speaker 04:
Was it being denied properly and then I guess there's in theory this intimidation point right, okay?

[00:15:11] Speaker 01:
So there's there's one grievance in which miss Maria says I wasn't really provided proper instructions But that is belied by the record which there's two different letters from the third level review that says if you disagree with the amended response you must appeal to the third level those instructions were clear and unambiguous and

[00:15:30] Speaker 03:
This is the one that went up to the third level, got bounced back to the second level.

[00:15:34] Speaker 01:
Correct, Your Honor.

[00:15:36] Speaker 03:
There's possibly some ambiguity in the grievance itself, but there was also a letter attached to it.

[00:15:41] Speaker 01:
That's correct, Your Honor.

[00:15:42] Speaker 03:
Your position is clear enough from the letter, even if the grievance itself was ambiguous, it's clear enough from the letter that you need to continue on with this if you

[00:15:56] Speaker 03:
Correct, Your Honor, yes.

[00:15:57] Speaker 03:
But as I understood, counsel was, is this the same grievance where, counsel was basically, it's a different grievance, counsel's talking about saying that you need to basically split these, these claims have already been addressed, so you need, that's a different one, is that right?

[00:16:12] Speaker 01:
That is a different one.

[00:16:13] Speaker 03:
That's the one that was rejected.

[00:16:14] Speaker 03:
That's the one.

[00:16:15] Speaker 03:
And it seemed to me that's where they were putting most of their emphasis this morning, at least, was that those rejections, because

[00:16:26] Speaker 03:
They were because they the pretty kept saying you need to get rid of some of these and trim it down That I guess that they're too confusing.

[00:16:35] Speaker 01:
I guess I think that's that's their argument I think it's something that affects yeah, so that so the grievances against Castillo and left those are I think there's no issues with those and I didn't hear counsel say anything about that the only one that they focused on was this one grievance that Rejected grievance the rejected grievance and I think we're having too many issues some of the issues of which

[00:16:57] Speaker 01:
The the prison was taking the position that you've already you've already Grievance that in a prior grievance correct yes, so in that in that grievance I think the one important part about the whole thing though is that that grievance really doesn't have any bearing on the case as it stands right now because even though that grievance named the wardens it didn't grieve and

[00:17:24] Speaker 01:
Claim that's actually live in this case right now, which is claim one and that claim is about workplace harassment And the grievance against that got screened out the name the wardens did not cover that issue So even even if we talk about like what that grievance?

[00:17:44] Speaker 01:
What happened with that grievance?

[00:17:45] Speaker 01:
It still doesn't cover the warrants, and it still doesn't

[00:17:48] Speaker 01:
really have any bearing on the claim one, which is at issue right now.

[00:17:53] Speaker 01:
But that grievance was actually properly screened out.

[00:17:56] Speaker 01:
There was no doubt that there were at least two issues that were being grieved.

[00:18:00] Speaker 01:
One was about work boots, and one was about receiving workers' compensation documents.

[00:18:04] Speaker 01:
And those are two separate issues, and they require two separate inquiries.

[00:18:09] Speaker 01:
So the screen out there was proper.

[00:18:11] Speaker 01:
Now the question is, when they said, the grievance reviewer said,

[00:18:15] Speaker 01:
You have already grieved the issue of work boots only include the workers compensation issue that was not error either because It sounds like they're reading that as saying you have they're almost reading out to say you've grieved the work boots issue and you have completed the grievance of it, but You've grieved it if they if that grievance about work boots has got its own problems I don't yes, and that grievance about work boots at the time she had submitted it, but it was not resolved and so really you look at the at the

[00:18:44] Speaker 01:
From the perspective of the reviewer they see within the three-week time period One one grievance about the laundry supervisor and said he hasn't provided me work boots and then pretty much the exact same grievance three weeks later Except she just added in that like she slipped and fell as a result So it was proper to say this issue against the laundry supervisor about work boots you've already grieved that so you don't need to include that anymore and

[00:19:10] Speaker 01:
you can separate out the workers' compensation claims.

[00:19:13] Speaker 01:
And that was permissible under the regulations.

[00:19:17] Speaker 01:
And I think that that's something that the grievance reviewer had the ability to do because, again, reading it on its face, those two grievances were the same.

[00:19:26] Speaker 01:
So there was no improper screen out in that regard.

[00:19:29] Speaker 01:
And then, again, if we talk about the overall arching problem of intimidation, I think your honor's hit it on the head when you said that

[00:19:39] Speaker 01:
if she continued to file grievances, there was no intimidation that deterred her from filing any of the grievances.

[00:19:47] Speaker 03:
Now, she might say... I think one of her arguments was that you don't actually have to be deterred.

[00:19:54] Speaker 03:
Didn't they argue that you don't have to actually be deterred?

[00:19:58] Speaker 01:
So for this issue, the... In the reply brief, it said actual deterrence is not what the case law requires.

[00:20:08] Speaker 01:
Well, I think that I think it's McBride that said that they have to actually like so it's, you know, I don't know if the terms are... McBride relies on the 11th circuit.

[00:20:17] Speaker 03:
The 11th circuit clearly said that in Turner versus Broadside, which is what McBride's relying on, that it is required.

[00:20:27] Speaker 03:
But I think their position is that you don't have to have a turn.

[00:20:29] Speaker 03:
I take it your position is

[00:20:31] Speaker 03:
You actually have to be deterred.

[00:20:32] Speaker 01:
Well, I think that you have to at least show that you were unable to exhaust because of these threats.

[00:20:39] Speaker 01:
And that is just simply not the case here.

[00:20:42] Speaker 01:
And that's what's really important here.

[00:20:44] Speaker 04:
Couldn't she argue that she wasn't deterred from filing him, but that the fact that she was filing so many meant that they weren't giving her, they were treating her differently.

[00:20:54] Speaker 04:
They were not giving her as much scrutiny over these.

[00:20:57] Speaker 04:
Would that be enough to?

[00:20:58] Speaker 01:
I don't think that was the argument that was made, your honor.

[00:21:01] Speaker 01:
I don't think that there's anything in their answering brief that even suggests that.

[00:21:05] Speaker 01:
I think what she said is one grievance wasn't properly screened out because I got confusing instructions.

[00:21:14] Speaker 01:
And then she said another one didn't exhaust because they didn't give me all the information I need to exhaust.

[00:21:22] Speaker 01:
That has nothing to do with being threatened or retaliation or anything like that.

[00:21:26] Speaker 01:
So the reasons for her failure to exhaust are not related to retaliation.

[00:21:32] Speaker 01:
So it looks like I'm out of time.

[00:21:34] Speaker 01:
But in summation, I would just say, Your Honors, that the district court properly granted summary judgment.

[00:21:40] Speaker 01:
And that should be affirmed and properly severed the claims in the Joinder order.

[00:21:45] Speaker 01:
And that also should be affirmed.

[00:21:46] Speaker 04:
OK, thank you.

[00:21:46] Speaker 04:
Thank you.

[00:21:47] Speaker 04:
We'll give you two minutes for rebuttal.

[00:21:58] Speaker 00:
I have two quick points I'd like to make about Joinder.

[00:22:01] Speaker 00:
First, I disagree with the defendant's description of rush, and I think if you take a look at the district court decision in that case, as against the Ninth Circuit decision in that case, they weren't disagreeing about a question about the ADA.

[00:22:14] Speaker 00:
They were disagreeing about whether an allegation of a landlord-tenant relationship rose to the level of the same transaction or occurrence.

[00:22:21] Speaker 00:
The other thing I'd just like to flag for your honors on

[00:22:24] Speaker 00:
The Joinder issue is that to the extent you're concerned, you think it's maybe understandable that the district court missed some of these allegations and the through line.

[00:22:33] Speaker 00:
Ms.

[00:22:34] Speaker 00:
Murillo did highlight them in a motion for reconsideration to the district court.

[00:22:38] Speaker 00:
And so I'd encourage you to take a look at ECF number 12 if that's a concern.

[00:22:43] Speaker 00:
Regarding exhaustion, I just want to clarify the argument that I'm emphasizing today, even though we're not conceding the other arguments in the brief.

[00:22:51] Speaker 00:
You're right, Your Honor, that I was just talking about the grievance about her fall in the kitchen, which is a different grievance from the one that went back and forth between the different levels of review.

[00:23:00] Speaker 03:
This is the one that was rejected.

[00:23:02] Speaker 00:
Yes.

[00:23:03] Speaker 00:
And I think that looking at the language on ER 141 helps reveal why the instructions were incorrect.

[00:23:10] Speaker 00:
The CDCR told her, please rewrite the appeal to address only workers' compensation, as all other issues have already been addressed.

[00:23:19] Speaker 00:
That tells her, do not file additional grievances about anything related to your fall in the kitchen except for workers' compensation.

[00:23:27] Speaker 00:
But CDCR's position now at page 32 of their response brief is that what she should have done in response to that letter is file a separate grievance about every other aspect of the fall in the kitchen.

[00:23:37] Speaker 00:
And that's in direct conflict with what they said at the time.

[00:23:40] Speaker 00:
I also want to emphasize quickly that this is a separate argument from our argument that the claim was improperly screened out.

[00:23:47] Speaker 00:
Even if they had been right and screened that and correctly screened the grievance out for involving multiple issues, they can't give her incorrect instructions in the rejection letter.

[00:23:57] Speaker 00:
If there's nothing else, we ask the court to reverse.

[00:23:59] Speaker 04:
OK, thank you.

[00:24:00] Speaker 04:
Thank you to both counsel for your arguments in the case.

[00:24:02] Speaker 04:
And thank you for your pro bono representations.

[00:24:05] Speaker 04:
Very helpful to the court.

[00:24:07] Speaker 04:
The case is now submitted.