[00:00:00] Speaker 05: Mr. Morris. [00:00:02] Speaker 04: Good morning, Your Honors. [00:00:04] Speaker 04: Deputy Attorney General George Morris for the appellant's warden, excuse me, Hollins and Gutierrez. [00:00:12] Speaker 04: I'd like to save three minutes for rebuttal and I'll watch the clock. [00:00:18] Speaker 04: Enrico V. Duckhart, this court made clear that supervisory defendants who oversee the federal court ordered Guard 1 suicide prevention checks [00:00:30] Speaker 04: in prison are entitled to qualified immunity because, quoting Rico, no reasonable official would believe that creating additional noise while carrying out mandatory suicide checks for prisoner safety would violate an inmate's constitutional rights. [00:00:48] Speaker 04: Indeed, this court held that supervisory officials in particular would, again, quote, have no reason to believe that carrying out the Coleman Court's orders [00:00:58] Speaker 04: would cause the floor officers to inflict the constitutional injury. [00:01:04] Speaker 05: I agree with your, I mean, we've got Rico. [00:01:06] Speaker 05: I mean, there's two things. [00:01:07] Speaker 05: One is, does Rico control in the sense that, look, we have to grant qualified immunity here because Rico compels it. [00:01:17] Speaker 05: That's a closer issue. [00:01:18] Speaker 05: But even if it didn't, why do you win? [00:01:22] Speaker 05: I mean, doesn't the other side, don't the plaintiffs, the plaintiff here, doesn't he have to show that there's clearly established law? [00:01:32] Speaker 05: even apart from Rico, what is that clearly established law where I not. [00:01:37] Speaker 04: Well, I actually couldn't have framed that better myself, your honor. [00:01:39] Speaker 04: So first of all, I agree that Rico controls in this case. [00:01:44] Speaker 04: There is no reason to distinguish Rico in the sense that the same allegations about the same officer's conduct and the same [00:01:52] Speaker 04: allegations about the supervisor's conduct. [00:01:55] Speaker 05: Well, let me OK, so let's let's take a step back because you sort of walked back into Rico. [00:02:00] Speaker 05: Let me let me tell you my concerns with just saying Rico controls. [00:02:04] Speaker 05: I mean, maybe it does. [00:02:04] Speaker 05: Maybe it doesn't, but they do claim here and I don't think this was an issue in Rico that there were certain guards who were saying. [00:02:13] Speaker 05: you know, please go file a complaint. [00:02:14] Speaker 05: We hate doing this. [00:02:16] Speaker 05: And there's some suggestion that they were trying to be a little bit, you know, either loud or obstructive so that they could kind of get this highlighted about how, in the guard's view apparently, how ridiculous, you know, the court order was. [00:02:35] Speaker 05: And, you know, it was almost like a collusion between the guard, this odd collusion between the guards and the inmates to, [00:02:41] Speaker 05: to get this court order vacated in some way. [00:02:45] Speaker 05: And if that's happening, why wouldn't that put this outside of the RICO context? [00:02:50] Speaker 04: Well, Your Honor, I'll take that in two parts. [00:02:54] Speaker 04: One is that while there are allegations that some unnamed officers [00:03:00] Speaker 04: did this type of behavior. [00:03:02] Speaker 05: Does it matter that they were unnamed? [00:03:04] Speaker 05: This was on summary judgment? [00:03:07] Speaker 04: Yeah. [00:03:07] Speaker 05: OK. [00:03:08] Speaker 05: And there are no guards. [00:03:10] Speaker 05: And there's no evidence that any officer actually said that. [00:03:13] Speaker 04: That's correct. [00:03:13] Speaker 04: And probably most importantly here, there is absolutely no evidence that the warrants were aware of any of that conduct. [00:03:21] Speaker 04: And that's where the fatal flaw in plaintiff's argument really is, is that there is no evidence whatsoever [00:03:30] Speaker 04: on summary judgment that the wardens had any knowledge of any of these alleged statements by these unnamed guards. [00:03:37] Speaker 04: And so when you take that piece out, you do fall back into RICO. [00:03:42] Speaker 04: But to follow up on Your Honor's other point, yes, I agree that even if RICO didn't apply, which again is our position that it is on all fours here, [00:03:52] Speaker 04: the district court still had to do its own qualified immunity analysis, and it simply just did not do that here. [00:03:59] Speaker 04: And that is reason alone to reverse and remand, because all the district court did was say, RICO doesn't apply, and then relied on the general law that sleep deprivation could be a constitutional violation, and then said there's a dispute of fact, and we'll be done with that. [00:04:16] Speaker 04: Not once did they grapple with the second-prong inquiry about identifying a case that would have put every reasonable officer and official on notice that the creation of noise, even excess noise, during these Guard 1 court-mandated checks would violate the law. [00:04:36] Speaker 04: You just don't see any case law, let alone a robust consensus of a case law, from either the district court or from Mr. Murillo and his answering. [00:04:46] Speaker 05: If there's a factual dispute, and I want to hear what you have to say to this, but if there's a factual dispute about how loud the guards were being when they were tapping, isn't that what had to happen? [00:04:57] Speaker 05: Every 30 minutes they had to tap on the door. [00:05:02] Speaker 05: If there was a factual dispute about how loud they were being and whether that was causing sleep deprivation, we wouldn't have jurisdiction. [00:05:12] Speaker 05: to address that issue, right, if there was a factual dispute about that? [00:05:15] Speaker 04: Well, we would say that since we're here on the second prong here, it doesn't matter if there's a factual dispute, because whether or not it was this loud or that loud, the question is, [00:05:31] Speaker 04: Is the law clearly established that making excess noise? [00:05:34] Speaker 05: But it seems that the law is clearly established that sleep deprivation, at least at this level, the law is clearly established. [00:05:42] Speaker 05: Sleep deprivation is a constitutional violation. [00:05:47] Speaker 04: Well, that is something that the RICO court directly addressed and said, while there is the law out there that sleep deprivation [00:05:56] Speaker 04: can be an Eighth Amendment violation, that doesn't end the analysis there. [00:06:01] Speaker 04: We've got to look at the specific context of the case. [00:06:04] Speaker 04: And the Ninth Circuit here said, existing case law does not shed light on the actual specific question here, which is, does the excess noise caused by the Guard 1 checks, the court ordered mandated Guard 1 checks, would deprive. [00:06:23] Speaker 05: But your point is, even if they had evidence, [00:06:26] Speaker 05: that the officers were bringing in some steel wand that was intended to create loud, you know, and obnoxious noises, even if they were doing it every 10 minutes and intentionally trying to keep them sleep deprived, you would still be entitled to qualified immunity because we don't have a case that says, you know, maybe there was sleep deprivation, but we don't have a case that says that way of causing sleep deprivation. [00:06:56] Speaker 05: is an Eighth Amendment violation. [00:06:58] Speaker 04: Well, Your Honor, again, I would say that the situation that you presented to me is a hypothetical, and that's not the case here, right? [00:07:05] Speaker 05: Well, I know, but I want to know how far your argument goes. [00:07:09] Speaker 05: Because I mean, I think what I'm going to hear from the other side when they stand up is this wasn't just enforcing. [00:07:18] Speaker 05: You could have enforced the court order [00:07:25] Speaker 05: either in a way that caused sleep deprivation or that didn't, and the guards were doing it in a way that caused sleep deprivation. [00:07:31] Speaker 05: So I want to know how far you think that goes to what we can consider for purposes of qualified immunity. [00:07:38] Speaker 04: Well, I think that the best I can tell you is, again, looking back at RICO and what the allegations were in RICO, which they said even if the guards were intentionally banging too loud on the metal disks, and even if they did it [00:07:52] Speaker 04: more frequently than they were supposed to and made even more noise than they were supposed to running up and down the stairs to make the check. [00:08:00] Speaker 04: Even if you assume all of that as true, then the law still was not clearly established that that behavior violated the Constitution. [00:08:12] Speaker 04: So I think we are [00:08:14] Speaker 05: Absolutely, in that world. [00:08:16] Speaker 05: So how do we get it? [00:08:17] Speaker 05: What if they carried a boom box with, you know, turned up to volume 10 with them when they did it? [00:08:22] Speaker 05: Would you say you're still entitled to qualified immunity because we don't have a case that says you can't do that? [00:08:29] Speaker 04: Well, I think again, we're talking about our two defendants here are the wardens. [00:08:33] Speaker 05: I understand. [00:08:33] Speaker 05: I understand those are not the facts here. [00:08:37] Speaker 05: I'm just trying to test how far out this goes. [00:08:39] Speaker 05: Because you're right, Rico cut a pretty wide swath on how much they could deviate from it. [00:08:48] Speaker 05: But I'm wondering where the limit is. [00:08:50] Speaker 04: Yeah, I, you know, there could be scenarios, Your Honor, where, you know, there is facts. [00:08:57] Speaker 04: That's the most important part, though, right? [00:08:58] Speaker 04: There are facts that establish that somebody ran around with a boombox and then [00:09:03] Speaker 04: we'd still have to, because the wardens are the defendants here, then we'd still have to have facts that the wardens knew about that and then didn't do anything. [00:09:11] Speaker 04: So there are scenarios, I think, where this could fall outside of RICO, but this is definitely not the scenario here. [00:09:19] Speaker 04: I think that it is clear that the facts here just align directly with RICO. [00:09:28] Speaker 04: Again, what you said is I do assume that my friends on the other side are going to come and say, well, he did complain about the intentional banging and the guards had some sort of plan to get the inmates to come to plane and whatnot. [00:09:42] Speaker 04: But again, even if you accepted that as true, that some unnamed guards might have said this, even though there is no evidence of it, [00:09:50] Speaker 04: Even accepting that is true. [00:09:53] Speaker 04: There are no facts, and they cannot point to any that the wardens have knowledge of this and For super a lot supervisor liability That's you know that that has to be the case that there's knowledge and there just is no knowledge here counsel given the power imbalance between the inmates the guards and the wardens who's going to step forward and say oh the warden knew about this and [00:10:17] Speaker 01: knowing that if the court disagrees or doesn't accept that fact, there might be reprisals later. [00:10:23] Speaker 04: Well, Your Honor, the knowledge piece, though, still has to be, it's the plaintiff's burden here. [00:10:30] Speaker 04: And what we have as facts is that when these grievances were submitted and there was an inquiry that was made and said, are these guards banging too hard? [00:10:43] Speaker 04: What came back was, no, they're performing the checks as policy. [00:10:47] Speaker 04: And that went all the way up the chain, all the way to the third level of appeal. [00:10:53] Speaker 04: And all the evidence is that the Warrens were aware that there was complaints about this new Guard One program that was inherently loud, but that there is no evidence whatsoever of any knowledge of intentional conduct. [00:11:12] Speaker 04: Actually, it's just to the contrary, that the only thing the warden knew was an inquiry was made and the reports back were they're doing it right. [00:11:23] Speaker 04: I have about four minutes, but unless there's other questions, I'll save that for rebuttal. [00:11:29] Speaker 04: Okay, thank you. [00:11:45] Speaker 03: Good morning, Your Honors, and may it please the court. [00:11:48] Speaker 03: My name is Max Cohn. [00:11:48] Speaker 03: I'm a certified law student, and I represent Joaquin Murillo. [00:11:52] Speaker 03: I plan to take eight minutes to discuss why the district court correctly distinguished Rico, and my co-counsel, Kiara Rivers, will spend the remaining time discussing why, without Rico, defendants violated clearly established law. [00:12:05] Speaker 03: Your Honors, I want to start by addressing a few things my friend on the other side discussed, namely the issue of warden's knowledge. [00:12:14] Speaker 03: There's two separate reasons that there's sufficient evidence in this record that the wardens knew about the intentional conduct that was being alleged. [00:12:25] Speaker 03: The first is that my friend on the other side says that the fatal flaw in this case is a lack of evidence at the summary judgment stage. [00:12:34] Speaker 03: But the government can't challenge evidence sufficiency issues on an interlocutory appeal of a denial of summary judgment. [00:12:42] Speaker 03: But there has to be some evidence. [00:12:43] Speaker 03: I mean, I agree with you. [00:12:45] Speaker 03: So what is the evidence? [00:12:46] Speaker 03: Absolutely. [00:12:46] Speaker 03: And so what the district court did correctly was that it inferred plausible inferences in Mr. Murillo's favor. [00:12:53] Speaker 03: And there's three key pieces of evidence that it relied on that would supply a reasonable jury with plenty of information [00:13:02] Speaker 03: to decide that the wardens did know about this conduct. [00:13:05] Speaker 03: So the first thing is the quality and quantity of the inmate grievances. [00:13:10] Speaker 03: So this is all of the inmate grievances, not just Mr. Marios. [00:13:13] Speaker 03: We know that as many as 181 individual inmates filed grievances. [00:13:20] Speaker 03: We know that those grievances, many of them stated things like banging, things like staff retaliation due to their dislike of the system, [00:13:29] Speaker 03: and that guards were spitefully slamming on the cell doors. [00:13:35] Speaker 03: No part of Guard 1 ever should have included anything that resembles a banging sound. [00:13:40] Speaker 03: Guard 1 involves guards walking through the cells and carefully tapping. [00:13:45] Speaker 03: We have from Mr. Gutierrez describing how Guard 1 is supposed to look like. [00:13:53] Speaker 05: So, okay, so this is helpful. [00:13:55] Speaker 05: I appreciate you going into the facts on this. [00:13:58] Speaker 05: Now explain to me why that gets you outside of Rico because I think Rico, I sort of suggest this, it does cut a pretty wide swath and sort of says, look, even if they are banging or making extra noise, [00:14:15] Speaker 05: That's not enough. [00:14:17] Speaker 05: So how do you address that question? [00:14:19] Speaker 03: I agree that Rico cuts a wide swath. [00:14:21] Speaker 03: That's why this case doesn't pose any danger of increased litigation in the future because Rico sets a pretty low bar for officers. [00:14:29] Speaker 03: It's when there's allegations of mere carelessness, haphazard conduct. [00:14:34] Speaker 03: My friend on the other side said that in Rico there were allegations of intentional banging from guards, but that's not the case. [00:14:41] Speaker 03: In Rico, the court is very clear that [00:14:44] Speaker 03: Guards never acted worse than careless or haphazard. [00:14:48] Speaker 03: And that's from Rico's own allegations. [00:14:50] Speaker 03: He never said guards were intentionally banging. [00:14:53] Speaker 03: He referred to the unique design of Pelican Bay. [00:14:58] Speaker 03: And that brings me to the key point of Rico, which is it spends a lot of time discussing the design of Pelican Bay. [00:15:04] Speaker 03: That's because it had a lot of evidence about how Pelican Bay was designed. [00:15:09] Speaker 03: That's a little bit ironic because RICO was decided at the motion to dismiss stage. [00:15:17] Speaker 03: But they had taken judicial notice of the special master report, which this court also has in the district docket. [00:15:23] Speaker 03: And we've supplied part of it in the request for judicial notice. [00:15:27] Speaker 03: And if you look at the special master report, which the RICO court clearly was looking at and citing heavily, [00:15:34] Speaker 03: goes into extreme detail about what happened at Pelican Bay. [00:15:38] Speaker 03: Everyone knew that Pelican Bay posed a unique risk for guard one being allowed there. [00:15:43] Speaker 03: The shoe has the circular design. [00:15:45] Speaker 03: They knew that when the pod bay door opened and closed, it would make a loud sound for 12 seconds that would reverberate through every cell. [00:15:55] Speaker 03: And they knew all this because they conducted a noise study at Pelican Bay. [00:15:59] Speaker 03: And once they conducted the noise study and determined all these issues at Pelican Bay, [00:16:04] Speaker 03: They told guards to be quiet. [00:16:06] Speaker 03: They asked guards to put plastic wrap on the chains outside the cell doors. [00:16:11] Speaker 03: They told them to hold their keys while they walked. [00:16:13] Speaker 03: They took extensive ameliorative action because they were put on notice about still some risk of sleep deprivation. [00:16:21] Speaker 03: And the reason this case is so different is because we don't know that CCI, the prison in this case, was intentionally allowed. [00:16:28] Speaker 00: In fact, it's your position that Rico is [00:16:32] Speaker 00: distinguishable because of Pelican Bay's unique design, basically. [00:16:36] Speaker 03: Well, it's three things. [00:16:37] Speaker 03: It's Pelican Bay's unique design and that we, I mean, if CCI, if we had in the record that CCI had these similar issues, then it doesn't have to only be Pelican Bay. [00:16:46] Speaker 03: It could be CCI. [00:16:47] Speaker 03: We just don't have any evidence about how CCI was constructed other than that it's made of concrete metal and steel. [00:16:54] Speaker 03: And then there's two other things that are key, which is the allegations of intentional conduct by the guards, and that there's actually a lot more evidence here. [00:17:01] Speaker 03: The wardens were on notice about it based on all of the grievances that were filed. [00:17:06] Speaker 03: And there's one other piece of evidence that goes to the warden's notice that I just want to highlight briefly, which is that, again, in the special master report, the special master was getting upset with CCI leading up to the implementation of Guard 1. [00:17:23] Speaker 03: It was noted that there was a problematic history of falsification of records at CCI of guards failing to actually conduct the suicide checks. [00:17:35] Speaker 03: And that just goes to the plausibility that they were upset they had to now do this electronic monitoring system. [00:17:41] Speaker 03: that forced them to actually go every 30 minutes and do these checks. [00:17:45] Speaker 03: And the final thing that makes this case different than RICO is the actions that the wardens took in response to being on notice of the substantial risk of sleep deprivation. [00:17:55] Speaker 03: So in RICO, all the things I explained that they did once they knew there was a risk that inmates were being kept awake, here we have cursory statements that inquiries were made and what the [00:18:10] Speaker 03: District court correctly did, based off of those statements from the wardens here, was say that there's no evidence a credible investigation was done. [00:18:20] Speaker 03: There's no evidence that the wardens actually looked into what the problem was. [00:18:24] Speaker 03: We don't know that they ever investigated things during first watch. [00:18:30] Speaker 03: So that's 10 PM to 6 AM when the bulk of the complaints were being derived from, when people generally sleep. [00:18:38] Speaker 03: Those are the three distinguishing factors. [00:18:39] Speaker 03: And that's why this case isn't RICO. [00:18:42] Speaker 03: And one final thing, which is that [00:18:44] Speaker 03: Judge Mueller at the district court told the defendants this much when she denied their initial motion to dismiss post-RICO. [00:18:52] Speaker 03: Judge Mueller denied several other Guard 1-related cases on the motion to dismiss stage. [00:18:59] Speaker 03: Those are referenced in the defendant's briefs. [00:19:03] Speaker 03: But this case was different, clearly, because Judge Mueller denied it and [00:19:09] Speaker 03: told them to add more to the record. [00:19:10] Speaker 03: Why is CCI like Pelican Bay? [00:19:12] Speaker 03: There's true differences here. [00:19:14] Speaker 03: And I'm going to yield the rest of my time to my co-counsel to discuss the clearly established law. [00:19:19] Speaker 03: Thank you. [00:19:28] Speaker 06: Good morning, Your Honors. [00:19:29] Speaker 06: And may it please the court? [00:19:30] Speaker 05: I guess we can give that extra time on the clock for, yeah, eight minutes would be great. [00:19:36] Speaker 05: Thanks. [00:19:37] Speaker 06: Good morning, your honors, and may it please the court. [00:19:38] Speaker 06: My name is Kiara Rivers. [00:19:40] Speaker 06: I'm a certified law student, and I also represent the plaintiff here. [00:19:42] Speaker 06: It has been known since 1500 at least that deprivation of sleep is the most effective torture. [00:19:49] Speaker 06: The district court correctly denied qualified immunity to the defendant wardens. [00:19:53] Speaker 06: Now, I will touch on a couple elements here. [00:19:57] Speaker 05: So, counsel, I think you're right in the sense that sleep deprivation is. [00:20:04] Speaker 05: Qualified immunity is tough, clearly established. [00:20:07] Speaker 05: I mean, you drew the short end of the stick on the argument here, right? [00:20:10] Speaker 05: Because you've got the tougher case, it seems to make, which is, what is the case that says that sleep deprivation here? [00:20:18] Speaker 05: We heard a lot of factual dispute, factual issues, but it's hard to imagine that there's a case that says, hey, your keys swinging too loudly is enough for sleep deprivation. [00:20:31] Speaker 05: Banging on the gate is enough for sleep deprivation. [00:20:38] Speaker 05: Where is your case that says that, that fits into this, that lets us say that this is clearly established? [00:20:45] Speaker 06: So we look at four separate cases, but on sleep deprivation specifically. [00:20:52] Speaker 06: We look to Ashcraft v. Tennessee, which is a Supreme Court case from 1944. [00:20:56] Speaker 06: They're simply stating that sleep deprivation has been known as torture for centuries, but beyond that, [00:21:02] Speaker 06: The Ninth Circuit stated in Keenan v. Hall, to sustain an Eighth Amendment claim, the plaintiff must prove a denial of the minimal civilized measure of life's necessities via deliberate indifference by prison personnel or officers. [00:21:13] Speaker 06: So we turn a lot to that deliberate indifference. [00:21:17] Speaker 05: But you still have to have a case that says the facts here fit within deliberate indifference. [00:21:25] Speaker 05: Is that case that gives us something? [00:21:28] Speaker 05: I mean, look, the Ninth Circuit, we've gotten knocked down many times by the Supreme Court because we've kind of adopted these general concepts that, and you have the general concepts. [00:21:41] Speaker 05: You're right. [00:21:41] Speaker 05: Sleep deprivation is there, but where's the case that says sleep deprivation in this context is clearly established. [00:21:49] Speaker 06: Well, your honor, we're relying on the intersection of four different rights, which the Ninth Circuit has established is an acceptable way to find that that law is clearly established. [00:22:00] Speaker 06: We're relying on sleep deprivation, excess noise, wanton infliction of harm and deliberate indifference. [00:22:06] Speaker 06: So I can take those in turn. [00:22:08] Speaker 05: Well, go to the, well, yes, the harm I that that I didn't know that there was wanton infliction of harm just related to the sleep deprivation or is there something else? [00:22:18] Speaker 06: Um, it is related to the sleep deprivation. [00:22:20] Speaker 06: It's the allegations of, um, intentional banging, um, the, you know, their statement of just six Oh two, it just file an appeal. [00:22:28] Speaker 06: Um, the retaliation aspect things on that. [00:22:31] Speaker 05: Where's the case that says intentional banging on the door in response to a court order is an eighth amendment violation. [00:22:41] Speaker 06: So we don't have something directly on point about the court order element, but we find that the issue here is more complicated than that, that it's more to whether supervisors' failures take any corrective action, despite the notice of intentional and excessive sleep deprivation and noise violates clearly established law. [00:23:03] Speaker 06: But on the element of wanton infliction of harm, in 1986, the Supreme Court in Whitley v. Albers stated, [00:23:10] Speaker 06: Unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. [00:23:16] Speaker 06: So here we see no legitimate penological purpose for the alleged banging noises made by guards. [00:23:21] Speaker 06: As Gutierrez stated, Guard 1 did not require the amount of noise alleged, and you see that in his own declaration. [00:23:27] Speaker 06: A lack of legitimate penological purpose plus allegations by the plaintiff of guards acting in retaliation clearly supports an inference of intentional infliction of excessive noise and sleep deprivation. [00:23:41] Speaker 06: Now, beyond that, on excess noise in 1996, again, in Keenan v. Hall, the Ninth Circuit stated, public conceptions of decency inherent in the Eighth Amendment require inmates be housed in an environment reasonably free of excess noise. [00:23:54] Speaker 06: Now, we want to be clear, plaintiff is not challenging the validity of the Guard 1 system, but rather the intentional excessive unnecessary noise made through the abuse of the system and the failure to remedy it. [00:24:05] Speaker 06: We don't challenge that maintaining order in a prison sometimes requires noise. [00:24:10] Speaker 06: So the Eighth Amendment only requires the environment be free of excessive noise. [00:24:14] Speaker 06: Plaintiff defines the banging alleged here to be excessive noise that had no legitimate purpose. [00:24:19] Speaker 05: And we acknowledge that... So can you walk through the evidence with me? [00:24:25] Speaker 05: There's not any decibel evidence. [00:24:30] Speaker 05: There's right now all we have, and I'm not saying it's not enough, but I just want to make sure I understand the contours of it. [00:24:37] Speaker 05: is evidence of the inmates saying this was excessive and it kept me awake. [00:24:44] Speaker 06: So we have a couple things to the extent of noise. [00:24:47] Speaker 06: Obviously the allegations of intentional repeated excessive banging in Mr. Murillo's grievance, despite Gutierrez saying you can't properly register the checks with that amount of noise. [00:24:57] Speaker 06: That allows an inference that if checks were being recorded properly at the time and were not showing errors, [00:25:02] Speaker 06: which we have no evidence they were showing errors because then correctional sergeants would address that, then guards must have been making additional noise on top of the welfare checks. [00:25:11] Speaker 06: But beyond that, we also see a failure to use the quieter alternatives that were available to them. [00:25:16] Speaker 06: We see in Def. [00:25:20] Speaker 06: Gutierrez's declaration that during first watch, they were required by their own policy to use a muted version of the wand because the wand beeps. [00:25:29] Speaker 06: And we see in multiple complaints, in multiple grievances, [00:25:32] Speaker 06: that the beeping is happening. [00:25:34] Speaker 06: So there's a failure to use these alternative options, again, pointing to intentionality. [00:25:40] Speaker 06: The numerous grievances, of course, there's at least 100 individuals, if not 181 by the district court's count. [00:25:46] Speaker 06: And we can even look to ECF 104 in the district court's record to get at more of that intentionality and retaliation. [00:25:54] Speaker 06: So this all allows a reasonable inference of substantial noise. [00:26:00] Speaker 06: So from there, on deliberate indifference, in Farmer v. Brennan, the Supreme Court stated a prison official can be found liable under the Eighth Amendment if the official knows of and disregards an excessive risk to inmate health or safety, meaning they must be aware of the facts from which the inference could be drawn that there's a substantial risk of serious harm, and they must show that officials had no reasonable justification for the deprivation. [00:26:25] Speaker 06: So the district court stated following Thomas V Ponder that you can establish awareness if the risk posed by the deprivation is obvious. [00:26:32] Speaker 06: Now, the situation here violates four separate fundamental principles in the Eighth Amendment, you know, that wants an infliction of harm, sleep deprivation, excessive noise, and deliberate indifference. [00:26:42] Speaker 06: We argue that that makes it incredibly obvious. [00:26:46] Speaker 06: The district court stated because excessive sleep deprivation and excessive noise can amount to an 8th Amendment violation, it follows that inmates experiencing those problems may face a serious risk of harm. [00:26:56] Speaker 06: And again, I mean, you can find that awareness in numerous complaints, multiple claims of intentionality. [00:27:02] Speaker 06: The substantial risk of serious harm just comes from sleep depriving anyone. [00:27:05] Speaker 05: Can I ask just I should have asked this up front, but this almost seems like an alternative. [00:27:11] Speaker 05: The arguments you're making now almost seem like an alternative basis to affirm the district court because. [00:27:17] Speaker 05: The deficiency that I found in the district court order is it's all focused on RICO. [00:27:21] Speaker 05: To me, that's not the right analysis. [00:27:24] Speaker 05: It might fit within RICO, it might not. [00:27:28] Speaker 05: You're doing a better job than the district court did of walking through the cases. [00:27:32] Speaker 05: I just want to get your response to that. [00:27:34] Speaker 05: Do you think the district court did this work or you're saying, no, this is an alternative basis to affirm? [00:27:40] Speaker 06: Well, we think the district court came to the right conclusion ultimately, but we do think that there was clearly established law that just wasn't addressed by the district court. [00:27:47] Speaker 06: That's correct. [00:27:49] Speaker 05: Okay. [00:27:49] Speaker 05: All right. [00:27:50] Speaker 06: May I briefly conclude? [00:27:51] Speaker 06: Yeah. [00:27:54] Speaker 06: The law was clearly established at the time that prison officials could not legally be deliberately indifferent to intentional and excessive noise and sleep deprivation as they were here. [00:28:02] Speaker 06: Therefore, we ask that you affirm the district court's denial of qualified immunity. [00:28:06] Speaker 06: Thank you very much. [00:28:08] Speaker 00: What law school are you affiliated with, please? [00:28:11] Speaker 06: UC Davis. [00:28:12] Speaker 06: We're a part of the Civil Rights Clinic. [00:28:14] Speaker 00: Very well. [00:28:14] Speaker 00: Thank you. [00:28:15] Speaker 06: Thank you. [00:28:24] Speaker 04: Excuse me. [00:28:25] Speaker 04: Just to address a few points. [00:28:28] Speaker 04: The first was that there's ample evidence of the warden's knowledge. [00:28:34] Speaker 04: That's just simply not true. [00:28:35] Speaker 04: I didn't hear any sight to the record, and there was no complaints that the wardens would have been aware of of retaliation or this type of conduct that Mr. Murillo alleged. [00:28:47] Speaker 04: In terms of the structure of the shoe, I think that the district court's basis or the distinction there is both, I think, [00:28:58] Speaker 04: It's really not, it's not of import because that's not, that wasn't the reason why Rico held, how it held was because of the structure of the Pelican Bay Shoe. [00:29:11] Speaker 04: But even if you wanna talk about the structure of the Pelican Bay Shoe versus CCI, there is evidence in the record of the structure of CCI. [00:29:20] Speaker 04: Mr. Murillo himself testified in his deposition that the sound, he could hear the sounds of the, [00:29:27] Speaker 04: the disks and 20 cells around him, he could hear the footsteps up and down. [00:29:33] Speaker 04: And he testified that even if Guard 1 was done considerably and carefully, he would still be woken up every 30 minutes by the sounds of the pod door opening and closing. [00:29:44] Speaker 04: So you still have that same prison structure here that causes extra noise. [00:29:50] Speaker 05: Because one of the arguments that they made was there were clearly less intrusive, quieter ways of enforcing the court order. [00:30:02] Speaker 05: I guess the argument is, well, the warden didn't do enough investigation to look at those. [00:30:06] Speaker 05: But it seems to be you're sort of making an argument that even if the wand were quieter, even if all these other things were quieter, you had some basic problems that were still going to raise to that level that couldn't have been corrected. [00:30:18] Speaker 04: That's correct. [00:30:18] Speaker 04: And I believe that's why Rico held the way it held, right? [00:30:22] Speaker 04: You could do this, the guard wand in a prison, they're all made of metal, concrete, and steel, and there's still going to be noise. [00:30:30] Speaker 04: And the relevant question then is, is there case law out there that says, [00:30:39] Speaker 04: that beyond debate, that the creation of noise and these Guard 1 checks would clearly violate the inmates' constitutional rights. [00:30:49] Speaker 04: And Rico said no. [00:30:50] Speaker 04: And Rico rejected all of the different cases that my friends on the other side just discussed. [00:30:57] Speaker 04: And that makes sense, because those cases just talk about the general sleep deprivation, and they don't go to the specifics, which Rico says you have to do. [00:31:09] Speaker 04: And so the relevant question here is, again, clearly established law with these specific facts about the guard ones in the prison, not the general law. [00:31:22] Speaker 04: And it was really telling that I think you asked numerous times, can you give me the case? [00:31:27] Speaker 04: Can you tell me? [00:31:29] Speaker 04: My friends on the other side couldn't do it, and the district court wasn't able to do it as well. [00:31:33] Speaker 02: Council, let me take you back to the notice you argued earlier. [00:31:37] Speaker 02: Council suggested that the quality and quantity of the inmate grievances should have put the wardens on notice. [00:31:41] Speaker 02: Did they not see these grievances? [00:31:44] Speaker 04: Well, the one warden did not. [00:31:46] Speaker 04: One warden did. [00:31:48] Speaker 04: But to the number of grievances, this was a new system that was in place. [00:31:53] Speaker 04: And so it's not surprising that there would be [00:31:57] Speaker 04: multiple grievances about an inherently noisy Guard One system. [00:32:01] Speaker 04: And we talk about the number. [00:32:04] Speaker 04: It's a little bit skewed because one of them is a group complaint that had 50 sign on and had the same allegations. [00:32:10] Speaker 04: But that's still 130 unique complaints. [00:32:14] Speaker 04: Well, out of the other maybe 1,500 that were in the shoe at that time. [00:32:19] Speaker 04: But the bottom line is that [00:32:21] Speaker 04: If it was one complaint or 100, that actually wouldn't inform the analysis or the question that we have to ask here, which was a law clearly established. [00:32:32] Speaker 04: And so whether, again, it's one inmate complaining or 100, that's not going to have any bearing on the question that we have to answer here, which was the law clearly established. [00:32:42] Speaker 04: It was not. [00:32:43] Speaker 04: Rico said no. [00:32:44] Speaker 04: The court's framing. [00:32:46] Speaker 04: Reasoning and rationale Enrico apply here and therefore this court should reverse and remand with instruction to the district court for an order granting qualified immunity to wardens Holland and Gutierrez. [00:32:58] Speaker 05: Thank you. [00:32:59] Speaker 05: Thank you to all counsel for your arguments in the case, and obviously we thank professional counsel who's certified in the bar, but to get the kind of arguments we just got from law students, we've got some professors and instructors that are doing a good job, keep it up, and we look forward to welcoming lawyers of your quality into the bar, so thank you. [00:33:21] Speaker 05: The case is now submitted.