[00:00:11] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:00:13] Speaker 01:
I am Senior Deputy Attorney General Victoria Quarry, and as my first time in front of the Ninth Circuit, I am honored to present appellants in this matter.

[00:00:21] Speaker 01:
We are in front of the United States Court of Appeals for the Ninth Circuit seeking reversal of the district court's judgment.

[00:00:27] Speaker 01:
I would like to reserve two minutes for rebuttal.

[00:00:30] Speaker 01:
Unless the court prefers otherwise, I will begin with addressing the fact that this court does have jurisdiction over this matter.

[00:00:36] Speaker 01:
Then I will address the fact that the district court improperly relied on allegations not supported by evidence.

[00:00:42] Speaker 01:
And finally, I will address the fact that appellants are entitled to qualified immunity as there was no Eighth Amendment conditions of confinement violation since there was no personal participation, no cause, and no harm.

[00:00:54] Speaker 01:
As a preliminary matter, this court does have jurisdiction over this case.

[00:00:58] Speaker 01:
The Supreme Court has expressly rejected Mr. Heinz's argument that this court lacks jurisdiction over this appeal because the district court erroneously determined that a material dispute of fact was present.

[00:01:09] Speaker 01:
Appellants in their opening brief argued that even when all material factual disputes are resolved and all reasonable inferences are drawn in Mr. Hintz's favor, Mr. Hintz still failed to meet his burden of establishing that each defendant would have understood that what he or she was doing through his or her own actions violated clearly established law beyond debate.

[00:01:30] Speaker 00:
Ms.

[00:01:30] Speaker 00:
Corey, can I jump in?

[00:01:32] Speaker 00:
Are your arguments essentially saying that the evidence is insufficient to create a material dispute of fact?

[00:01:38] Speaker 01:
That is correct your honor.

[00:01:40] Speaker 00:
Why isn't that barred, categorically barred on interlocutory review?

[00:01:44] Speaker 00:
That seems to be the reading of Johnson, estate of Anderson, George, several Supreme Court and Ninth Circuit cases.

[00:01:54] Speaker 01:
Well your honor this case is different in

[00:01:58] Speaker 01:
This case is different in those regards because as the court recently, even in the Cortez matter, this court found that there was no problem with any jurisdictional issue on a qualified immunity appeal because in order to reverse the district court's evidentiary ruling, that defendant's evidence was inadmissible because the district court's ruling was based on incorrect legal standard which is what we are arguing here.

[00:02:24] Speaker 00:
But you're essentially saying that the incorrect legal standard was that there should not have been a tribal dispute, but the district court found one.

[00:02:33] Speaker 01:
Well, Your Honor, we're saying that the incorrect legal standard that the district court relied upon was allowing inadmissible evidence in their determination that there was a material dispute of genuine fact.

[00:02:48] Speaker 00:
But, I mean, isn't that essentially a dispute about whether the evidence is sufficient or would be sufficient for plaintiffs to bring forward a trial?

[00:02:58] Speaker 00:
I mean, that seems to be the baseline of what makes this categorically unreviewable by us.

[00:03:06] Speaker 00:
I'm just having a hard time seeing why that's not the case.

[00:03:09] Speaker 01:
Well, Your Honor, we're saying that even if we take all admissible facts in light of Mr. Hineson in his favor, that there is no dispute of genuine fact.

[00:03:21] Speaker 01:
And we're arguing here that the reliance on admissible evidence was legally incorrect.

[00:03:29] Speaker 00:
So what's your best case for the proposition that the reliance on inadmissible evidence does allow us to have jurisdiction to review this case?

[00:03:42] Speaker 01:
Can you give me one moment, Your Honor?

[00:04:06] Speaker 02:
So if you want, you can get back to us and rebuttal on that.

[00:04:09] Speaker 01:
I apologize.

[00:04:11] Speaker 02:
It's OK.

[00:04:12] Speaker 02:
So I think I have a different perspective than my colleague.

[00:04:17] Speaker 02:
I tend to agree with you that we have jurisdiction.

[00:04:21] Speaker 02:
So I want to concentrate on two other areas.

[00:04:25] Speaker 02:
That first, you're familiar with the Hampton v. California case, right?

[00:04:30] Speaker 01:
I am, Your Honor.

[00:04:30] Speaker 02:
OK.

[00:04:30] Speaker 02:
And we said in Hampton.

[00:04:32] Speaker 02:
In light of the cases that we cited, and I was on the Hampton panel, all reasonable officials would have been on notice in 2020 that they could be held liable for exposing inmates to a serious disease, including a serious communicable disease.

[00:04:46] Speaker 02:
Although COVID-19 may have been unprecedented, the legal theory that plaintiffs assert is not.

[00:04:52] Speaker 02:
So that's binding on us, right?

[00:04:55] Speaker 01:
In a sense, your honor, that is correct.

[00:04:56] Speaker 01:
The case law is that we do have a duty to prevent serious communicable diseases.

[00:05:01] Speaker 02:
OK, so then let's get to the undisputed or the disputed material facts.

[00:05:10] Speaker 02:
So Mr. Hintz put in a declaration that said, for example, under penalty of perjuries, the correctional officers, and I'm looking for here at ER 144,

[00:05:21] Speaker 02:
would intentionally cough in the direction of plaintiffs and others, and that the correction officers often failed to enforce the rules requiring inmates to wear masks.

[00:05:36] Speaker 02:
So you may think that that fact is wrong, but in the light most favorable to Mr. Hintz, those are undisputed facts, right?

[00:05:45] Speaker 01:
That is correct, your honor.

[00:05:46] Speaker 01:
However, even if that were true, that does not rise to the level of the Eighth Amendment violation here because Mr. Hines cannot show the causation between his allegations and him contracting COVID-19 infection.

[00:06:00] Speaker 02:
But we're at the pleading stage.

[00:06:02] Speaker 02:
I'm looking at ER 145.

[00:06:04] Speaker 02:
Several times when plaintiff and other inmates complained, correction officers would state that they wanted the inmate population to get COVID-19.

[00:06:14] Speaker 02:
So that's also, you dispute that, but that's also a material fact that we can look at, right?

[00:06:20] Speaker 01:
Well, Your Honor, it is, but it has no bearing here.

[00:06:23] Speaker 02:
How can it have no bearing if Mr. Hintz is saying under oath that he was and other inmates were intentionally exposed to COVID-19 that people knew the rules and intentionally disregarded them because they wanted the inmates to get COVID-19.

[00:06:42] Speaker 02:
How could that have no bearing here?

[00:06:44] Speaker 02:
How could that not at the pleading stage be something that we can look at for causation?

[00:06:49] Speaker 01:
Well, Your Honor, even if we take that as true.

[00:06:55] Speaker 02:
Well, we have to take it as true.

[00:06:56] Speaker 01:
Yes, and taking it as true, that still does not rise to the level of the Eighth Amendment violation here because it is our contention and it is that he cannot show that anything that happened during his allegations of March to December of 2020 caused him to get COVID-19 in January of 2022.

[00:07:14] Speaker 00:
He also alleges that there were certain correctional officers that were transferred from another prison where there had been an outbreak of COVID.

[00:07:25] Speaker 00:
And when they were brought over to this institution, they did a three-day cell search that exposed people to COVID.

[00:07:34] Speaker 00:
Why isn't that sufficient to shore up causation issues?

[00:07:39] Speaker 00:
Again, if we have to take those as true.

[00:07:41] Speaker 01:
And we have to take those as true is because there is in order for Mr. Heinz to show that somehow what defendants did caused him to receive COVID-19.

[00:07:50] Speaker 01:
He has to show that causal link here.

[00:07:52] Speaker 01:
He only sues the deputy directors, the director and the wardens of the institution.

[00:07:57] Speaker 01:
He does not sue any of the officers that he alleged did this.

[00:08:01] Speaker 01:
He doesn't say that specifically.

[00:08:04] Speaker 00:
But he's alleging that those defendants were responsible for the transfer of the correctional officers to the institution after the outbreak and allowing them without proper coverage and masking to conduct the cell searches.

[00:08:16] Speaker 00:
I think what Judge Bennett and I are honing in on is you're trying to dispute the facts, but on interlocutory review, we are not weighing evidence.

[00:08:27] Speaker 00:
We are taking plaintiff's allegations.

[00:08:29] Speaker 00:
If we even had jurisdiction, we must take plaintiff allegations as true and decide whether a constitutional violation has been sufficiently alleged.

[00:08:38] Speaker 01:
And that's correct, your honor.

[00:08:39] Speaker 01:
And what I would say is even taking everything as true and everything that Mr. Heinz says as true, it still does not rise to the level of an Eighth Amendment violation.

[00:08:49] Speaker 01:
This court in the Freight matter had held that even if, even when the

[00:08:58] Speaker 01:
Even when the immigration officials, for immigration detainees, even as they were responding to the ever-evolving and unprecedented COVID-19 pandemic, just because their implementation of the policies and procedures was not perfect does not mean that it rises to the level of an Eighth Amendment violation.

[00:09:15] Speaker 01:
We are asking you to hold the same here because those cases are very similar.

[00:09:21] Speaker 01:
and what is happening.

[00:09:22] Speaker 02:
All right, counsel, if you want to reserve the rest of your time.

[00:09:24] Speaker 00:
Can I ask one more question?

[00:09:25] Speaker 00:
There's just something that just occurred to me.

[00:09:28] Speaker 00:
This argument about no admissible evidence and inadmissible hearsay, these evidentiary objections, did you raise them in your motion for summary judgment before the district court?

[00:09:40] Speaker 01:
In front of the district court, the magistrate judge properly held that Mr. Hines did not provide any evidence.

[00:09:49] Speaker 00:
No, but did you raise these evidentiary objections in your motion for summary judgment before the district court?

[00:09:53] Speaker 00:
I'm trying to get at whether you waived it or not.

[00:09:56] Speaker 01:
We did not waive it, Your Honor.

[00:09:57] Speaker 01:
In our reply in support of our motion for summary judgment, we did say that he did not provide any admissible evidence to contradict the evidence that we have.

[00:10:06] Speaker 00:
But you didn't raise anything in the initial motion itself that this evidence that he's relying on, is it admissible hearsay or not evidence that could be put forward at trial?

[00:10:17] Speaker 01:
Well, Your Honor, it was our motion for summary judgment.

[00:10:19] Speaker 01:
So we had provided the evidence.

[00:10:21] Speaker 01:
And in his opposition, he did not provide any admissible evidence.

[00:10:26] Speaker 01:
And we had pointed that out in our reply in support of.

[00:10:28] Speaker 01:
So we had raised that objection in our reply.

[00:10:30] Speaker 02:
So you followed the motion for summary judgment.

[00:10:32] Speaker 02:
Here's our evidence.

[00:10:33] Speaker 02:
They came back.

[00:10:34] Speaker 02:
uh... now here's our evidence and you came back to the district court your applies as their evidence yes council we will argue your full two minutes for a bottle thank you

[00:11:04] Speaker 03:
Good morning, Your Honours and may please the court, Cesar Lopez Morales from OREC on behalf of Plaintiff Appellee Jason Hintz.

[00:11:12] Speaker 03:
Defendants moved for summary judgment based on a straightforward theory supported by a broad declaration.

[00:11:18] Speaker 03:
Here's what they said, and I quote, during the entirety of the COVID-19 pandemic, Lovelock Correctional Centre followed all policies and procedures pertaining to COVID-19, end quote.

[00:11:31] Speaker 02:
This is the warden's deck.

[00:11:32] Speaker 03:
This is the Collier Declaration, Your Honor.

[00:11:35] Speaker 02:
Yeah.

[00:11:36] Speaker 02:
He was then the associate.

[00:11:37] Speaker 03:
That's right.

[00:11:38] Speaker 03:
Yeah.

[00:11:38] Speaker 03:
And of course, this was disputed, which is exactly what the district court found when it denied their motion.

[00:11:44] Speaker 03:
Dependents have appealed that determination.

[00:11:48] Speaker 03:
But this kind of challenge is both improper as a jurisdictional matter and is wrong on the merits.

[00:11:53] Speaker 03:
Let me first start with jurisdiction.

[00:11:55] Speaker 03:
We think that a simple rule articulated by this court time and again decides this appeal.

[00:12:01] Speaker 03:
And that rule is that a public official may not immediately appeal the determination about whether or not there is enough evidence in the pretrial record to create a genuine dispute of fact.

[00:12:12] Speaker 02:
So, counsel, let me push back on that.

[00:12:14] Speaker 02:
So let's say, and I'm not saying this is what happened here, but let's say there were a declaration by an inmate who's suing the warden.

[00:12:21] Speaker 02:
And he says in his declaration, the warden knew X, Y, and Z.

[00:12:29] Speaker 02:
And there's a summary judgment motion and when he's pressed on that at summary judgment he says, well Jimmy told Fred who told Sally who told me that the warden knew XYZ or put in seven other levels of hearsay.

[00:12:44] Speaker 02:
And the district judge says that's a material dispute of fact on this.

[00:12:49] Speaker 02:
I'm relying on the plaintiff's declaration.

[00:12:54] Speaker 02:
And we wouldn't have jurisdiction to say, no, there are no undisputed issues of material fact because you can't, under Rule 56, rely on a declaration that can't possibly be admissible because it has eight or 80 levels of hearsay.

[00:13:11] Speaker 02:
No jurisdiction, no matter how bad the district court got it.

[00:13:15] Speaker 03:
So a couple of points, Your Honor.

[00:13:17] Speaker 03:
We think that issues of admissibility, and the vast majority of circuits have held this,

[00:13:22] Speaker 03:
the 6th Circuit, the 7th Circuit, the 10th Circuit, the 11th Circuit, and even this Court in several unpublished decisions, issues of admissibility relate exclusively to what a party can prove at trial, whether they can prove a certain fact, whether a certain fact is true.

[00:13:40] Speaker 03:
And that's what's categorically unreviewable in the words of this Court in George under the Supreme Court's decision in Johnson.

[00:13:47] Speaker 03:
In your example, Your Honor, even if we were to agree

[00:13:51] Speaker 03:
that an issue of admissibility can be reviewed in an interlocutory posture, and I'm not aware of a decision in those circuits or in the circuit where that's allowed.

[00:14:01] Speaker 03:
In your hypothetical, Your Honor, it's very important that that issue of hearsay, that evidentiary objection, was raised below.

[00:14:08] Speaker 03:
So there's an actual decision by the court that says, sure, this is not hearsay, we're going to consider this evidence here,

[00:14:16] Speaker 02:
Okay, but so in my hypothetical, assuming it were properly raised, you would concede we would have jurisdiction?

[00:14:22] Speaker 03:
In your hypothetical, our bottom line position is still that issues of admissibility are not reviewable because they relate to the genuineness of a factual dispute.

[00:14:33] Speaker 02:
No matter how absurd.

[00:14:34] Speaker 02:
That's right, your honor, but I mean, and I don't mean to be to make light of what obviously is a serious case, but even if it were at a level like I was visited by an alien and he told me this, so the district court said yes, admissible.

[00:14:50] Speaker 03:
So, Your Honor, I think in that situation, I would emphasize that there are other guardrails that this court can rely on.

[00:14:56] Speaker 03:
Two, the first one is the blatant contradiction standard.

[00:15:01] Speaker 03:
We think the blatant contradiction standard allows this court to rely on the record to find where an allegation or an assertion is visible fiction, where something is blatantly contradicted by the record, this court will disregard it.

[00:15:15] Speaker 03:
There's nothing remotely similar to that here.

[00:15:18] Speaker 02:
We also have an exception which would be inconsistent with the rule you're citing is that, well, you know, we look at videos ourselves.

[00:15:29] Speaker 02:
So even if the district court saw something in a video, we could disregard that because we look at the videos ourselves.

[00:15:36] Speaker 03:
So Your Honor, you're exactly right.

[00:15:37] Speaker 02:
And how is that consistent with the rule you're citing?

[00:15:40] Speaker 03:
So that is the blatant contradiction.

[00:15:42] Speaker 03:
It's the standard.

[00:15:43] Speaker 03:
It's what the Supreme Court articulated in Scott v. Harris, in Plumif v. Rickard, this court in Orne v. City of Tacoma.

[00:15:50] Speaker 03:
Appellate courts can review the evidence.

[00:15:53] Speaker 03:
You can look at the video and say, what the plaintiff is saying is simply contradicted.

[00:15:58] Speaker 03:
It's not true by the evidence in the record.

[00:16:01] Speaker 03:
I'm looking at the video.

[00:16:02] Speaker 03:
It's just not true.

[00:16:03] Speaker 03:
We have nothing like that here.

[00:16:04] Speaker 04:
And we can do that in an interlocutory appeal of a qualified immunity summary judgment denial?

[00:16:11] Speaker 03:
That's right, Your Honor.

[00:16:12] Speaker 03:
And Scott Plumoff are examples of that.

[00:16:15] Speaker 03:
Orrin v. City of Tacoma is another example of that.

[00:16:18] Speaker 03:
There's just no evidence here that blatantly contradicts my client's assertions.

[00:16:23] Speaker 00:
And you were about to argue, I think, to get on the waiver issue.

[00:16:27] Speaker 00:
Even if we had jurisdiction to review the inadmissibility evidence, was that issue waived by not being presented below?

[00:16:34] Speaker 03:
It was absolutely waived, Your Honor.

[00:16:36] Speaker 03:
It was the sentence that my friend on the other side refers to in the reply.

[00:16:40] Speaker 03:
What it says is my client did not present evidence, much less admissible evidence, of certain things.

[00:16:47] Speaker 03:
That's not an evidentiary objection.

[00:16:49] Speaker 03:
To make an evidentiary objection, you have to lay the foundation for the objection.

[00:16:53] Speaker 03:
You have to say, I am objecting because this is hearsay.

[00:16:57] Speaker 02:
Is that why the district court rejected it?

[00:16:59] Speaker 03:
Your honor, the district court did what it was supposed to do.

[00:17:02] Speaker 03:
The district court got to the merits, right?

[00:17:04] Speaker 03:
That's right, your honor.

[00:17:05] Speaker 02:
So because the district court got to the merits, we have a lot of cases that say we can reach that even if they didn't cross all their t's and dot all their i's below because the district court got past that.

[00:17:17] Speaker 03:
So Your Honor, what this court in a state of Anderson said is the question of whether there is interlocutory jurisdiction turns on the nature of the defendant's argument on appeal.

[00:17:29] Speaker 03:
And in the opening brief, and here this morning today,

[00:17:33] Speaker 03:
from my friend on the other side conceded, they are appealing the determination of whether there is a genuine factual dispute and whether they prevail on the merits.

[00:17:41] Speaker 03:
They have conceded that that argument of whether there is an Eighth Amendment violation depends on whether my client's evidence is sufficient to create a genuine factual dispute.

[00:17:52] Speaker 03:
Even this morning

[00:17:54] Speaker 03:
My friend on the other side disregarded the fact that my client testified that he contracted COVID in December of 2020, not in January of 2022.

[00:18:03] Speaker 00:
Can I just clarify one thing?

[00:18:04] Speaker 00:
When you say that the District Court got to the merits, what it did was it said that there was a genuine dispute of material fact on these allegations.

[00:18:14] Speaker 00:
Did it get into issues of whether the evidence presented by plaintiffs was inadmissible hearsay or other?

[00:18:20] Speaker 00:
It didn't because it wasn't presented at the motion for summary judgment.

[00:18:24] Speaker 00:
Is that correct?

[00:18:24] Speaker 03:
That's right.

[00:18:25] Speaker 03:
It was not presented in motion for summary judgment or in reply.

[00:18:28] Speaker 03:
All it did was there are genuine issues of material fact as to whether the conduct violated the Eighth Amendment and whether that violation was of a clearly established right.

[00:18:38] Speaker 02:
But the district court also

[00:18:40] Speaker 02:
on a number of occasions cited the specific things your client said under penalty of perjury, right?

[00:18:48] Speaker 03:
That's right, Your Honor.

[00:18:49] Speaker 02:
It did cite the verified complaint and it did cite the... And it did say verified complaint under oath, etc.

[00:18:55] Speaker 02:
So, I mean, it...

[00:18:57] Speaker 02:
your client was subscribing to it, either under oath or under penalty of perjury.

[00:19:02] Speaker 03:
That's right, Your Honor.

[00:19:03] Speaker 03:
And one last point on jurisdiction, because I do want to address the merits.

[00:19:07] Speaker 03:
When there is an argument on appeal that all you are challenging is the genuineness of a factual dispute, even when the district court has reached the merits, what this court has done time and again, in identical circumstances, in Anderson, Buscanian versus Upchurch, Bao versus Molina, other cases we have cited in our brief,

[00:19:26] Speaker 03:
is to dismiss the appeal for lack of jurisdiction.

[00:19:29] Speaker 00:
So can I just, because I think your friend on the other side might try to come up with a case on rebuttal in answer to my question, but are you aware of any case where a district court finding a genuine dispute on the basis of inadmissible evidence is reviewable on interlocutory review for qualified immunity purposes?

[00:19:49] Speaker 03:
I have, Your Honor.

[00:19:51] Speaker 03:
Not in the Ninth Circuit.

[00:19:52] Speaker 03:
There are cases in the Fifth Circuit and the Eighth Circuit that have said issues of admissibility are reviewable.

[00:19:59] Speaker 03:
So there is some disagreement among the circuits on this question.

[00:20:03] Speaker 03:
We think this Court doesn't need to resolve that disagreement for the simple reason that there was no evidentiary objection below.

[00:20:09] Speaker 03:
But I would encourage this court to look at footnote 12 of the Ellis versus Salt Lake City decision by the 10th Circuit from last year.

[00:20:17] Speaker 03:
In footnote 12, it explains why those decisions by the 8th Circuit and 5th Circuit are wrong.

[00:20:24] Speaker 03:
What the 8th Circuit and 5th Circuit have said, sure, issues of admissibility are legal questions.

[00:20:29] Speaker 03:
Those are the things that you review in an interlocutory posture.

[00:20:33] Speaker 03:
But that kind of reasoning is in tension with this court's reading of Johnson, and Anderson is a best example of that, which is we're not looking at any legal question in interlocutory posture.

[00:20:46] Speaker 03:
We're looking at what Johnson said are pure abstract issues of law or pure abstract legal questions.

[00:20:52] Speaker 03:
And what that means is we're looking about if taking the allegations as true in my client's favor,

[00:20:58] Speaker 03:
whether that conduct has violated the Constitution and particularly a clearly established right.

[00:21:04] Speaker 04:
One very quick question.

[00:21:05] Speaker 04:
How would you characterize the clearly established right that is at issue here and what's the best authority for that?

[00:21:11] Speaker 03:
So Your Honor, Hampton versus California, as Judge Bennett was on the panel, he's well aware.

[00:21:17] Speaker 03:
Maney versus Oregon, another decision by this court.

[00:21:21] Speaker 03:
Both decisions say that the clearly established right at issue is the right to be free from involuntary exposure to a serious disease.

[00:21:30] Speaker 03:
And the court in Hampton said that right has been clearly established at least since 1993 in the Supreme Court's decision in Helling.

[00:21:39] Speaker 04:
And is there a knowingly and unreasonably element to the prison officials' behavior that has to be present?

[00:21:46] Speaker 03:
That's absolutely right, Your Honor.

[00:21:47] Speaker 03:
We think, just as in Hampton, just as in Maney, the fact that defendants hear high-level officials,

[00:21:54] Speaker 03:
which is what's different from the cases like Blake and Bird cited in my friend's reply brief, when high-level prison officials are sued and they are aware of pervasive violations of COVID mitigation policies that is deliberate indifference to a substantial risk of serious harm.

[00:22:13] Speaker 02:
Thank you.

[00:22:14] Speaker 03:
All right.

[00:22:14] Speaker 03:
Thank you.

[00:22:14] Speaker 03:
Thank you, Your Honor.

[00:22:26] Speaker 01:
Just briefly, Your Honors, I wanted to address the question of the best case regarding jurisdiction.

[00:22:32] Speaker 01:
I apologize for not having that ready earlier.

[00:22:34] Speaker 01:
That's okay.

[00:22:35] Speaker 01:
But I would assert that there are three that are kind of on point with how you guys have jurisdiction in this matter.

[00:22:41] Speaker 01:
The first one, the Cortez case that was decided in 2025 that I briefly spoke about earlier, where this court had no problem with jurisdiction on a qualified immunity appeal, which is what we're here on.

[00:22:53] Speaker 01:
as well, to reverse the district court's evidentiary ruling that defendant's evidence was inadmissible because the district court's ruling is based on incorrect legal standard.

[00:23:02] Speaker 01:
I would also point to the Plummer... And was that about inadmissible evidence, did you say?

[00:23:08] Speaker 01:
Yes, the district court found that defendant's evidence was inadmissible and the Ninth Circuit reversed and remanded saying that the evidence was admissible at that point.

[00:23:18] Speaker 01:
Also the Plumhoff case, the Supreme Court held that the appellate court properly exercises jurisdiction over an appeal of the denial of a motion for summary judgment asserting qualified immunity when it is beyond serious dispute that the defendants did not violate the Constitution even though the district court determined that there exists a triable issue of fact.

[00:23:37] Speaker 01:
That goes to the

[00:23:40] Speaker 01:
The idea that even if there is a genuine issue of material factor, you guys, the Ninth Circuit still does have jurisdiction to rule on this matter and determine whether or not, even with that dispute of fact, if defendants did violate the Eighth Amendment, which we contend did not happen here.

[00:23:56] Speaker 01:
and also in Carly, that this court recently in the Carly case, this court held that even when the district court concludes there's still a genuine dispute of material fact, the court still has jurisdiction to determine whether the defendant would be entitled to qualified immunity as a matter of law, even after assuming all factual disputes are resolved and all reasonable inferences are drawn in plaintiff's favor, which is what we are arguing here.

[00:24:20] Speaker 01:
Your honors, we are asking the court to

[00:24:25] Speaker 01:
reverse the district court's ruling in this matter as they not only did they rely on inadmissible evidence to create a genuine dispute of material fact here, but even so, there was no 8th Amendment violation in this case.

[00:24:41] Speaker 01:
The record reflects that defendants were abiding by all policies and procedures during the

[00:24:47] Speaker 01:
ever-changing once-in-a-lifetime COVID-19 pandemic, and then they were doing what they could.

[00:24:52] Speaker 02:
Mr. Heinz's... All right, counsel, we thank you for your argument.

[00:24:56] Speaker 01:
Thank you.

[00:24:57] Speaker 02:
We thank both counsel for their arguments, and the case just argued is submitted.

[00:25:01] Speaker 02:
With that, we'll move to the second and final case on the argument calendar, United States versus Nevada.