[00:00:00] Speaker 03:
of these United States and this honorable court.

[00:00:04] Speaker 03:
Please be seated.

[00:00:09] Speaker 05:
Good morning.

[00:00:10] Speaker 05:
We have three cases that are on the calendar

[00:00:16] Speaker 05:
that will be submitted on the briefs.

[00:00:18] Speaker 05:
Those are 25-2031 Nancy Delgano Surabia, 25-... versus Pamela Bondi, 25-3401 Ophelia Serna Penalosa versus Pamela Bondi, and 253525 Kula Silla versus Pamela Bondi.

[00:00:42] Speaker 05:
In accordance with the respective orders previously entered on the dockets of those three cases, those three cases are hereby submitted on the briefs.

[00:00:52] Speaker 05:
We'll now proceed to hear argument in the first case on calendar for argument this morning, which is 24-4004, Michelle Derby versus County of Columbia.

[00:01:04] Speaker 05:
And we will hear first from Mr. Johnston.

[00:01:15] Speaker 01:
Good morning.

[00:01:16] Speaker 01:
Jacob Johnston appearing for plaintiff appellant Michelle Derby.

[00:01:22] Speaker 01:
I would like to reserve three minutes for rebuttal.

[00:01:27] Speaker 01:
May it please the court.

[00:01:29] Speaker 01:
The district court did not use the correct legal framework, plain and simple.

[00:01:35] Speaker 01:
The correct legal framework would focus on what William understood about the harm done to him by defendants and not how a mentally

[00:01:44] Speaker 01:
Stable and not how mentally stable a diagnosed schizophrenic is at any point in time So counsel what evidence do you maintain is in the summary judgment record that Mr.. Derby could not comprehend his rights after June 2017 Well there is no evidence before the district court on the defendant's motion for summary judgment as to what William understood as

[00:02:14] Speaker 01:
about the harm done to him by defendants.

[00:02:17] Speaker 06:
But the defendants are permitted to point to the absence of evidence, which shifts the burden to you.

[00:02:23] Speaker 06:
Is that correct?

[00:02:24] Speaker 01:
No, that is not correct, Your Honors.

[00:02:26] Speaker 01:
The burden is on the defendants to either produce evidence that would negate an essential element of plaintiff's reliance on the tolling statute.

[00:02:38] Speaker 06:
Right.

[00:02:39] Speaker 06:
That's one.

[00:02:39] Speaker 06:
And the other is point to the absence of evidence.

[00:02:43] Speaker 01:
Correct.

[00:02:44] Speaker 01:
but nothing that the defendants offered negated the possibility of William being placed on the stand at trial and saying, no, I'm sorry.

[00:02:56] Speaker 01:
I don't even remember my time at the jail.

[00:02:59] Speaker 05:
Why isn't it sufficient to carry their threshold burden on summary judgment to point out that in early 2019, he had an evaluation

[00:03:11] Speaker 05:
in which he was found to be psychiatrically stable in that appointment.

[00:03:17] Speaker 05:
And then they say under Celotex, you have the ultimate burden of proof on the issue at trial.

[00:03:23] Speaker 05:
You need to show something post-January 2019 that shows that he still has a mental deficiency that would qualify for tolling.

[00:03:34] Speaker 05:
And did you present any such post-January 2019 evidence in response to that summary judgment motion?

[00:03:41] Speaker 01:
We did not, Your Honor, because first, we had no burden to.

[00:03:46] Speaker 05:
Yes, you do have a burden.

[00:03:47] Speaker 05:
I mean, Cellatex says, Cellatex seems to reject exactly the argument you're making.

[00:03:52] Speaker 05:
Cellatex does not require a party who moves for summary judgment on an issue on which they do not have the burden of proof to disprove the issue.

[00:04:01] Speaker 05:
Instead, it says they can make

[00:04:04] Speaker 05:
They can point out the other side has the burden of proof and then make some kind of showing, which may depend on the facts, as to why they think the party with the burden of proof won't be able to carry it.

[00:04:15] Speaker 05:
And here they presented some evidence that he had gotten better.

[00:04:20] Speaker 05:
In January 2019, he had this report that

[00:04:23] Speaker 05:
looks like gee, he doesn't qualify for tolling.

[00:04:27] Speaker 05:
Why isn't that enough to say, all right, you have to bring forward something to show you can carry your burden of proof after January 2019?

[00:04:35] Speaker 01:
They did not eliminate the possibility that William does not even remember his time at the jail or that he ever gained an understanding of what

[00:04:46] Speaker 01:
harm the defendants did to him.

[00:04:48] Speaker 01:
Let me ask you in a different way.

[00:04:49] Speaker 05:
What evidence did you put forward in opposition to summary judgment to show that you could carry your burden of proof under Celotex?

[00:04:58] Speaker 01:
We showed his lengthy history of acute psychosis.

[00:05:05] Speaker 05:
All of which is pre-January 2019, correct?

[00:05:08] Speaker 01:
Correct.

[00:05:09] Speaker 05:
And nothing post-January 2019?

[00:05:12] Speaker 02:
Correct.

[00:05:12] Speaker 05:
But you need to get past January 19 to have toly in this case, correct?

[00:05:17] Speaker 02:
Correct.

[00:05:19] Speaker 02:
Yes.

[00:05:21] Speaker 05:
What date do you need to get up to?

[00:05:23] Speaker 05:
Do you need to show mental deficiency as of, say, 2020?

[00:05:31] Speaker 01:
The exact date of the complaint filing escapes me, Your Honor, but two years prior to that.

[00:05:40] Speaker 05:
July of 2021 and the tolling is capped at one year after recovery is that correct?

[00:05:52] Speaker 01:
According to the district court according to the statute no no the statute the statute holds that the statute of limitations

[00:06:09] Speaker 01:
is told so long as the mental deficiency prevents the party from understanding rights that he is otherwise bound to know.

[00:06:21] Speaker 01:
And that is capped at five years.

[00:06:23] Speaker 05:
That's in subsection three is the tolling, but then subsection four

[00:06:29] Speaker 05:
says the time for commencing an action may not be extended under subsection three, so the tolling you just described, of this section for more than five years or for more than one year after the person no longer has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know, whichever occurs first.

[00:06:51] Speaker 05:
So if he had recovered in January 2019,

[00:06:55] Speaker 05:
Then even with tolling up to that point, it would expire by January 2020, because it's capped at a year.

[00:07:00] Speaker 05:
So you have to show, in order to justify a July 2021 filing, it would seem that as of at least July of 2020, he still had a disabling mental condition.

[00:07:15] Speaker 05:
Am I wrong in that?

[00:07:18] Speaker 01:
You're correct, Your Honor.

[00:07:21] Speaker 01:
But let's not forget that, however,

[00:07:27] Speaker 01:
Stable William appears at any given point in time.

[00:07:30] Speaker 01:
He is still a diagnosed schizophrenic and that is that is not going away But there are two psychologists who evaluated him for competency to stand trial and even though he still had schizophrenia I guess they both found him competent to stand trial, and he did stand trial Yes, he he did understand his rights as to the criminal prosecution but

[00:07:57] Speaker 01:
The tolling statute is concerned with what does he comprehend about his rights that were violated by the defendants.

[00:08:05] Speaker 01:
So we're dealing with apples and oranges here.

[00:08:08] Speaker 01:
And to say that, well, he understood his rights in the criminal prosecution, therefore he must understand his rights per the tolling statute, that is a false equivalency.

[00:08:22] Speaker 04:
I guess the burden then was on you to provide some evidence that he didn't understand what happened to him, because you have the burden, at least to show tolling, the statute of limitations.

[00:08:34] Speaker 04:
It's your burden, so you have to produce some evidence that, in addition to schizophrenia, that he didn't understand what had happened to him.

[00:08:42] Speaker 01:
Respectfully, I don't agree, Your Honor.

[00:08:45] Speaker 01:
Defendants would have had to have shown something as to William's level of understanding Towards the harm done to him and they showed nothing they took his deposition They could have submitted any portion of that deposition if they thought it was helpful, and they didn't which should be telling So yes, we need a

[00:09:12] Speaker 01:
a disabling mental condition to satisfy the tolling statute, but we also need a showing of his understanding of the harm done to him.

[00:09:27] Speaker 01:
In order for the burden to shift to the plaintiff for purposes of summary judgment, the defendant would have to show something as to William's understanding of

[00:09:41] Speaker 01:
his time at the jail.

[00:09:42] Speaker 01:
They offered nothing.

[00:09:43] Speaker 01:
They showed that he was stable at various points of time, but they didn't provide, OK, what does he actually understand?

[00:09:54] Speaker 01:
And therefore, the burden never shifted to the plaintiff.

[00:09:58] Speaker 01:
And I believe a state of Thompson makes this quite clear.

[00:10:02] Speaker 01:
In that case, the grieving mother who had lost her child, well, she was not mentally ill.

[00:10:10] Speaker 01:
She was not mentally disabled.

[00:10:13] Speaker 01:
She returned to work not long after her infant's death, and she was able to care for her other three children.

[00:10:20] Speaker 01:
But that was not dispositive to the Oregon Court of Appeals, because the real question was whether the mother's grief and PTSD prevented her from understanding that the hospital was at fault.

[00:10:35] Speaker 01:
The defendant in that case did offer evidence that, well, the mother went to work, and she's caring for other three children.

[00:10:43] Speaker 01:
Therefore, she doesn't have this disabling mental condition.

[00:10:48] Speaker 01:
But that was not enough for the Oregon Court of Appeals to affirm the grant of summary judgment.

[00:10:56] Speaker 01:
And for the same reasons, Williams' mental stability at various points in time should not have been the district court's focus.

[00:11:07] Speaker 06:
What is your position on whether it's your client's obligation to show by clear and target a clear and targeted understanding of who was to blame for the harm?

[00:11:18] Speaker 06:
Is that a burden that you take on or you say it's too high or too low?

[00:11:23] Speaker 06:
Well, what is the clear plaintiff's burden right on this point tied to this concept of a clear and targeted understanding?

[00:11:33] Speaker 01:
Well for purposes of summary judgment

[00:11:36] Speaker 01:
plaintiff had no burden, because the defendant didn't meet their initial burden, showing some level of understanding.

[00:11:46] Speaker 01:
So it never shifted.

[00:11:47] Speaker 01:
Am I understanding your question correctly?

[00:11:51] Speaker 06:
You are.

[00:11:52] Speaker 01:
Thank you.

[00:12:01] Speaker 01:
Getting back to William's understanding of his rights in the criminal prosecution,

[00:12:10] Speaker 01:
That's just as relevant as his understanding towards his constitutional right of freedom of speech or right to be free from unreasonable searches and seizures.

[00:12:23] Speaker 01:
Those are irrelevant because they aren't the rights that the tolling statute is referring to.

[00:12:35] Speaker 01:
If there are no further questions, I would like to reserve the remainder of my time for rebuttal.

[00:12:39] Speaker 05:
All right.

[00:12:40] Speaker 05:
Thank you, counsel.

[00:12:42] Speaker 05:
We'll hear now first from Ms.

[00:12:45] Speaker 05:
Schroer.

[00:12:45] Speaker 05:
Did I pronounce that correctly?

[00:12:47] Speaker 03:
Schroer.

[00:12:47] Speaker 03:
Schroer.

[00:12:48] Speaker 03:
You can say it however you want.

[00:12:50] Speaker 03:
May it please the court and counsel.

[00:12:52] Speaker 03:
Janet Schraer on behalf of the county defendants.

[00:12:56] Speaker 03:
I have part of the time and I'm sharing part of the time with the co-defendant.

[00:13:01] Speaker 03:
The district court correctly determined that plaintiff's claims are barred by the, they were not told and barred by the statute of limitation.

[00:13:10] Speaker 03:
because there was no evidence the record showing that Mr. Derby's mental condition rendered him unable to understand his rights as of July of 2017 or at the very latest, January of 2019, which are both more than two years before he filed.

[00:13:26] Speaker 05:
What's your understanding?

[00:13:27] Speaker 05:
I went through this colloquy with your opposing counsel.

[00:13:32] Speaker 05:
What's your understanding of what's the relevant time frame in order for there to be tolling for July 2021 filing?

[00:13:40] Speaker 05:
Is it that he has to be have a disabling mental condition as of July of 2020, or would some earlier day be sufficient for him to proceed with tolling?

[00:13:56] Speaker 03:
Well, the record demonstrates that he was able to comprehend his rights as early as 2017.

[00:14:03] Speaker 05:
I understand that's your argument, but I want to know where the relevant legal line is so that we can then say, here's the legal line and here are the facts.

[00:14:11] Speaker 05:
So I'm trying to figure out, it looks to me like it's July 2020, but help me out if I'm wrong.

[00:14:18] Speaker 03:
I think that's correct because you're looking at the one year and in no event, no more than one year.

[00:14:23] Speaker 05:
Right, so if he got better, am I correct in reading the statute?

[00:14:27] Speaker 05:
If he got better as of January 2019, then he's too late because it's limited to one year after he gets better and the suit was filed more than two years after January 2019.

[00:14:42] Speaker 05:
So it would look like it would have to be July,

[00:14:45] Speaker 05:
of 2020 with the one-year cap after you get better.

[00:14:49] Speaker 03:
Right.

[00:14:50] Speaker 03:
OK.

[00:14:51] Speaker 03:
And in any event, I mean, there's no such evidence that it's creating an issue of fact that he had a disabled mental condition after 2019.

[00:15:00] Speaker 03:
So even with the one year.

[00:15:02] Speaker 05:
But you have some threshold burden under Cellatex to explain to the court why you believe that

[00:15:13] Speaker 05:
The plaintiff will not be able to carry his burden of proof on this issue.

[00:15:18] Speaker 05:
What did you put forward in order to establish that he would not be able to carry his burden of proof?

[00:15:23] Speaker 03:
Sure.

[00:15:24] Speaker 03:
And we agree, under Celotex, we had the burden to make an initial showing.

[00:15:29] Speaker 03:
And our initial showing was multiple records from 2016-17,

[00:15:39] Speaker 03:
And through 2019, medical records demonstrating that he was of sound mind, able to comprehend his rights, and able to process information that he was feeling fine, that he wasn't experiencing psychosis or other mental conditions that would otherwise keep him from comprehending his rights.

[00:15:59] Speaker 03:
And it is significant that the court found that he was able to stand trial.

[00:16:04] Speaker 03:
He was competent to stand trial.

[00:16:05] Speaker 03:
That is a very high burden.

[00:16:07] Speaker 03:
And he was able to he he the court there the medical provider found that and we provided all that evidence to the court I believe your opposing counsel said when I asked that same question.

[00:16:20] Speaker 06:
It's like comparing apples and oranges What's your response to that?

[00:16:25] Speaker 03:
He's wrong We don't have to show that plaintiff comprehended the harm that he claims came from the defendant's conduct

[00:16:34] Speaker 03:
The question is, was he able to comprehend the rights that he had?

[00:16:40] Speaker 03:
And we demonstrated through the medical records that we had, he had and was able to comprehend that.

[00:16:46] Speaker 03:
And we went beyond our burden.

[00:16:48] Speaker 03:
So we carried our burden, which transferred the burden over to plaintiff, and they didn't meet it.

[00:16:53] Speaker 03:
But we also demonstrated that he had complaints.

[00:16:57] Speaker 03:
in 2017 about his jail stay.

[00:17:01] Speaker 03:
And he expressed those to his medical provider.

[00:17:03] Speaker 03:
So it wasn't like he was a blank slate.

[00:17:05] Speaker 03:
He didn't know what was going on.

[00:17:06] Speaker 03:
He expressed those.

[00:17:07] Speaker 03:
And we put those records in the file as well before the district court and complaints about all kinds of different things that happened at the jail.

[00:17:17] Speaker 03:
He was able to comprehend his rights and articulate his issues with them.

[00:17:22] Speaker 03:
And the standard isn't what he knew.

[00:17:24] Speaker 03:
The standard is new or should have known.

[00:17:26] Speaker 03:
And when he was able to articulate that he had problems with the jail circumstance, I mean, we more than demonstrated that.

[00:17:36] Speaker 03:
And again, we don't have to show he was harmed.

[00:17:38] Speaker 03:
We don't think he was harmed.

[00:17:39] Speaker 03:
But we don't have to demonstrate that he identified the very harm.

[00:17:42] Speaker 03:
We just have to demonstrate he was able to comprehend his rights.

[00:17:46] Speaker 03:
And he was able to comprehend his rights.

[00:17:50] Speaker 03:
And they showed nothing to the contrary.

[00:17:52] Speaker 03:
They said, you know, we took his deposition.

[00:17:54] Speaker 03:
Well, he wouldn't have any burden to show what his deposition showed.

[00:17:57] Speaker 03:
The burden was, was he competent?

[00:17:59] Speaker 03:
Was he able to comprehend his rights?

[00:18:01] Speaker 03:
And the medical providers clearly demonstrated that he did.

[00:18:05] Speaker 03:
And they came up with nothing else.

[00:18:08] Speaker 03:
So the question was, did we negate an essential element of the opposing party's claim or defense?

[00:18:12] Speaker 03:
We did.

[00:18:13] Speaker 03:
It's under Seletex.

[00:18:14] Speaker 03:
We did by demonstrating with the records that he did understand his rights.

[00:18:21] Speaker 03:
And then we also put it up there.

[00:18:24] Speaker 03:
Well, what else is there?

[00:18:25] Speaker 03:
And by virtue of the fact, there was no contrary evidence.

[00:18:29] Speaker 03:
And so we met both of those tests and supplied the court with all the evidence that supported the trial court's decision.

[00:18:39] Speaker 03:
plaintiff is contends under the Thompson case that we have to show plaintiff comprehended the actual harm in question here and

[00:18:51] Speaker 03:
I just want to point out the Thompson case, as we stated in our brief, was decided under Oregon law.

[00:18:56] Speaker 03:
And Oregon law doesn't provide discovery of experts.

[00:19:00] Speaker 03:
That's nothing that anybody else has, but Oregon has that rule.

[00:19:04] Speaker 03:
And so in order to get around requiring plaintiff to disclose an expert in connection with a summary judgment motion, they allow opposing party to put in what's called a 47E declaration or affidavit stating, I have an expert

[00:19:17] Speaker 03:
who will create an issue of fact on this.

[00:19:20] Speaker 03:
So the Thompson case was decided in the context of an ORCP 47 declaration.

[00:19:27] Speaker 03:
And the declaration stated that they had an expert to testify about the impact of PTSD and plaintiff's depression diagnosis and the impact that had on plaintiff's ability to recall and her comprehension and her memory.

[00:19:47] Speaker 03:
There's nothing in this record about that.

[00:19:49] Speaker 03:
Plaintiff couldn't have relied on a 47E affidavit here, because we don't have that in federal court.

[00:19:54] Speaker 03:
But plaintiff could have.

[00:19:55] Speaker 03:
And if they wish to create an issue of fact for trial, if they had any evidence to support that he had a condition that kept him from comprehending his rights or delayed his comprehension or anything like that, such as they had in the Thompson case, it was incumbent on plaintiff to do that.

[00:20:12] Speaker 04:
Can you reconcile?

[00:20:14] Speaker 04:
You point out the Oregon statute, tolling statute, I think correctly.

[00:20:18] Speaker 04:
It says they have to show that the mental condition bars a person from comprehending his or her rights.

[00:20:25] Speaker 04:
But the Thompson case uses a slightly different language, which is what your friend on the other side latches on to, which is the mental condition bars the person from knowing that the defendant had harmed him or her.

[00:20:38] Speaker 04:
So how do we reconcile that difference in language?

[00:20:41] Speaker 03:
Well, I think Thompson is informed by the record that was provided in that case.

[00:20:46] Speaker 03:
And so the question, in looking at a summary judgment record, it has to do with what is the evidence before you?

[00:20:52] Speaker 03:
It's the same in the other cases.

[00:20:54] Speaker 03:
And that was the nature of the discussion in the parties in the trial court about what plaintiff comprehended, because there was part of it that she knew about, and the statute was barred, and part of it she wasn't.

[00:21:05] Speaker 03:
And they had the 47E affidavit.

[00:21:08] Speaker 03:
And there's nothing in the statute that says you have to comprehend

[00:21:11] Speaker 03:
the actual harm from the defendant the statute only says you have to comprehend your actual rights and Thompson they were arguing and had this 47 E affidavit and that is the distinguishing factor there and the language wasn't referring to

[00:21:27] Speaker 03:
specifically the legal standard, it was talking about the evidence in that case.

[00:21:32] Speaker 03:
And we don't have any such evidence in this case.

[00:21:34] Speaker 03:
We only have evidence uncontradicted that plaintiff understood his rights at the very latest, I guess, in January of 2019.

[00:21:43] Speaker 03:
And so the Thompson case was distinguishable.

[00:21:47] Speaker 03:
I also want to point out that we have alternate grounds for affirmance, and that in the event the court

[00:21:54] Speaker 03:
didn't uphold the summary judgment on the basis that the district court found the statute of limitations, we have alternate basis on the merits.

[00:22:00] Speaker 05:
The district court judge didn't reach those.

[00:22:02] Speaker 05:
The magistrate judge did.

[00:22:03] Speaker 05:
Correct.

[00:22:04] Speaker 05:
But the district court judge didn't.

[00:22:06] Speaker 05:
Correct.

[00:22:06] Speaker 05:
So we would be reviewing those in the first instance rather than sending them back to the district court?

[00:22:13] Speaker 03:
Yeah.

[00:22:14] Speaker 03:
I understand the law is if, yeah, if the decision below is correct, it can be affirmed on any ground.

[00:22:21] Speaker 03:
that was raised and those grounds were raised and fully briefed and plaintiff waived part of plaintiffs objections to those because he didn't even object to our filings in the district court and he has not raised any of those issues in connection with this appeal.

[00:22:38] Speaker 03:
So we think this Court A can fully review those.

[00:22:42] Speaker 03:
Some of them plaintiff has waived.

[00:22:44] Speaker 03:
Some of them, their objections were non-meritorious.

[00:22:47] Speaker 03:
So in the alternative, in the event you did not find for the defendants on the statute of limitation, we believe the court, the law, permits you to look at those.

[00:22:58] Speaker 03:
And plaintiff didn't even oppose it when we raised it in our responsive brief.

[00:23:02] Speaker 05:
So we'll leave it to my co-counsel.

[00:23:08] Speaker 05:
So we'll hear next from Mr. Taylor.

[00:23:24] Speaker 00:
Good morning, Your Honours, Ross Taylor.

[00:23:27] Speaker 00:
May it please the court, Ross Taylor, on behalf of

[00:23:29] Speaker 00:
Appellee Nancy Ronan, who's a doctorate nurse practitioner.

[00:23:34] Speaker 00:
As we did with the briefing, we are adopting and joining the arguments on the statute of limitations made by the county.

[00:23:40] Speaker 00:
I think it was well argued this morning, and I would defer any questions on the statute of limitations to our co-counsel.

[00:23:47] Speaker 06:
Council, we have administratively closed this case as to correct care solutions.

[00:23:52] Speaker 06:
You may not be the one to address this, but does that bankruptcy have any impediment on our issuing a decision?

[00:23:59] Speaker 00:
No, I don't.

[00:24:00] Speaker 00:
And I think that if we look at the record of this case, there was a bit of a hiccup or speed bump.

[00:24:05] Speaker 00:
So there was the stay of proceedings from that bankruptcy case, stay of the proceedings as to WellPath, who was formerly as Correct Care Solutions, and Nancy Ronan, who was a provider employed by Correct Care Solutions, WellPath.

[00:24:22] Speaker 00:
WellPath was discharged through the bankruptcy.

[00:24:24] Speaker 00:
The Ninth Circuit briefly terminated the appeal as to both Ms.

[00:24:30] Speaker 00:
Ronan and Correct Care Solutions.

[00:24:33] Speaker 00:
Plaintiffs' Council corrected the record.

[00:24:34] Speaker 00:
We did not oppose that.

[00:24:35] Speaker 00:
So to clarify the record, WellPath, Correct Care Solutions is out, has been terminated from this, but there was a opt-out and the appeal proceeds as to the practitioner Ronan.

[00:24:48] Speaker 00:
Thank you.

[00:24:50] Speaker 05:
So I reserved- Your understanding is the appeal is over as to well path because of the discharge and so they're not going to like be coming back at some future point.

[00:24:59] Speaker 00:
Correct.

[00:25:00] Speaker 00:
I've learned more about bankruptcy through this than I maybe cared to.

[00:25:05] Speaker 00:
But my understanding is that claimant could proceed with claims in the bankruptcy court, but that would be separate from anything here and does not bind or limit any decision made today.

[00:25:14] Speaker 00:
This was touched on at the closing of argument by Council, but I do want to emphasize because I think that

[00:25:22] Speaker 00:
the underlying briefing and really the argument by appellee here today has kind of misstated or even suggests that they misunderstand their own appeal.

[00:25:33] Speaker 00:
This is a de novo review of summary judgment, meaning regarding Miss Ronin, was she entitled to judgment as a matter of law?

[00:25:42] Speaker 00:
That was reviewed twice in the district court, first by the magistrate and then by the district court judge, both of whom found that she was.

[00:25:50] Speaker 00:
So this goes to the alternate,

[00:25:51] Speaker 00:
grounds issue.

[00:25:52] Speaker 00:
I think it's well established that de novo review means that this court can affirmatively say that the judgment as a matter of law was warranted on any grounds.

[00:26:03] Speaker 00:
There's been a lot of the briefing.

[00:26:05] Speaker 00:
Plaintiff's briefing has been exclusively focused on the statute of limitations issue, but that's not really what the issue is here.

[00:26:11] Speaker 00:
The issue is

[00:26:13] Speaker 00:
were the county defendants or were Ms.

[00:26:15] Speaker 00:
Ronan entitled to judgment as a matter of law?

[00:26:17] Speaker 00:
And I think that's remarkable to look at, not only for the compelling statute of limitations grounds, but on the underlying claims, which really have just been ignored, I think, remarkably in the appellee's brief, but even more so in the reply.

[00:26:33] Speaker 00:
So I think if we look through those, the record was replete, and I don't want to, I'm short on time, so I won't belabor the points, but the,

[00:26:42] Speaker 00:
Several of the claims, at least in part, were conceded before the magistrate judge.

[00:26:47] Speaker 00:
The plaintiff said, you're correct.

[00:26:48] Speaker 00:
We don't have claims on those grounds.

[00:26:50] Speaker 00:
Summary judgment is appropriate.

[00:26:52] Speaker 00:
So the claims against Ms.

[00:26:54] Speaker 00:
Ronin were a 1983 claim of deliberate indifference.

[00:26:57] Speaker 00:
Of the three claims articulated, one was conceded by plaintiff and the other two have been shown and were found by the magistrate judge to have not been sufficiently demonstrated or supported with factual proof.

[00:27:11] Speaker 00:
There were some vague averments to supervisory liability of Ms.

[00:27:15] Speaker 00:
Ronan.

[00:27:16] Speaker 00:
The magistrate judge correctly concluded that that was never pled and was improperly introduced at summary judgment grounds.

[00:27:23] Speaker 00:
And then finally, the negligence or pendent

[00:27:26] Speaker 00:
State negligence claims on medical practice again those were conceded in part in this in the Hearing before the magistrate judge not challenged and not argued subsequently that Plaintiff could not support those claims These claims all fall away if the plaintiff loses on limitations correct

[00:27:48] Speaker 00:
Absolutely, absolutely these are all alternative grounds I do think it's compelling to point out really that that this has been looked at kind of from two different angles And one court looked at incorrectly determined that the statute of limitations barred this that's been well discussed and documented today Did you say that the district court did as to Nurse Ronan did adopt the alternative?

[00:28:13] Speaker 05:
ground that the claims against her failed on the merits and not just on timeliness?

[00:28:19] Speaker 00:
No, I did not mean to suggest that.

[00:28:21] Speaker 00:
Oh, okay.

[00:28:21] Speaker 05:
I thought you had said that and I didn't think that was correct.

[00:28:24] Speaker 00:
If I misspoke, I apologize.

[00:28:25] Speaker 00:
That was not the intention of what I was trying to say.

[00:28:27] Speaker 00:
I think what the district court did, which I think we've all understood here as the district court said,

[00:28:32] Speaker 00:
We believe these are time barred, and I'm not going to reach these other grounds.

[00:28:36] Speaker 00:
I guess what I was just trying to emphasize here is I kind of think the Colloquial theory of right on any grounds okay, it doesn't necessarily need to be the statute limitations.

[00:28:44] Speaker 00:
Okay, all right.

[00:28:45] Speaker 00:
Thank you count.

[00:28:46] Speaker 00:
Thank you.

[00:28:46] Speaker 01:
I will hear rebuttal I Would just like to reiterate that I

[00:29:00] Speaker 01:
unadopted magistrate court's findings and recommendations are not subject to this review, as we stated in our brief.

[00:29:10] Speaker 05:
We certainly have discretion to do so.

[00:29:12] Speaker 05:
I mean, it's a question of law.

[00:29:15] Speaker 05:
It was fully briefed below.

[00:29:17] Speaker 05:
It was presented to the district court with a magistrate judge recommendation.

[00:29:22] Speaker 05:
If we chose to do so, I think the law is clear we would have the discretion to do so.

[00:29:27] Speaker 05:
We could also

[00:29:28] Speaker 05:
exercise a discretion to just send it back have the district judge do it first and then review it but but I I think the law is clear that we would have discretion to do so I'm I'm not so sure your honor as We pointed out in the serene v. Peterson case in our brief

[00:29:51] Speaker 01:
magistrate judges findings and recommendations are not peelable because they cannot form the basis of a final judgment without subsequent intervention by the district court so right but here there is a final judgment and when there's a final judgment

[00:30:08] Speaker 05:
Yeah, we can review the grounds for the judgment that the judge gave as well as the other things briefed by the parties to the judge that the judge didn't reach if they're reviewable de novo then we could review them as alternatives All right, well I have nothing more to add on that point your honor I would just

[00:30:34] Speaker 01:
I would also like to point out that just because William is mentally stable at a given point in time doesn't mean that as soon as he starts taking his medication, he understands that he was harmed at the jail.

[00:30:49] Speaker 01:
And it says nothing about when he gained that understanding or if he ever did.

[00:30:54] Speaker 01:
And defendants needed to foreclose that possibility to meet their burden.

[00:31:02] Speaker 01:
The district court committed reversible error in its order granting defendants motion for summary judgment should be reversed.

[00:31:12] Speaker 01:
If there are no other questions.