[00:00:01] Speaker 01: We'll start with 22-1325. [00:00:02] Speaker 01: I'm not going to... Bakoti or Bakot? [00:00:12] Speaker 01: Bakot. [00:00:12] Speaker 01: Bakot versus the Federal Bureau of Prisons. [00:00:17] Speaker 01: You may proceed, Mr. Tui. [00:00:25] Speaker 00: Good morning, and may it please the court. [00:00:27] Speaker 00: My name is Katie Toohey, and I am a student attorney representing Mr. Michael Baco Jr., the appellant in this case. [00:00:33] Speaker 00: I'm joined today by Laura Rovner, my supervising attorney. [00:00:37] Speaker 00: Throughout Mr. Baco's incarceration, the Bureau of Prisons has held him in prolonged solitary confinement, ignored his well-documented history of serious mental illness and his intellectual disability, and denied him reasonable disability accommodations. [00:00:50] Speaker 00: The district court's errors in this case stem from its misinterpretation of the legal release and the Cunningham v. Bureau of Prison Settlement Agreement. [00:00:58] Speaker 00: The district court erroneously found Mr. Baco's Section 504 and solitary confinement claims to be barred by the release and erroneously limited Mr. Baco's Eighth Amendment diagnosis claim to a judicial determination of a mental health diagnosis. [00:01:12] Speaker 00: The district court left Mr. Baco with no redress for BOP's daily ongoing violation of his rights. [00:01:18] Speaker 00: Today we ask that this court find that Mr. Baco's claims are not moot nor barred by the Cunningham agreement and allow his claims to proceed in full on remand at the district court. [00:01:27] Speaker 02: So counsel, even if we agree with your interpretation of the Cunningham agreement, aren't his claims as pled right now moot because he's been moved? [00:01:39] Speaker 00: Transfer out of ADS is not the only relief that Mr. Baco is seeking. [00:01:43] Speaker 00: He is still seeking relief from solitary confinement as an individual with a serious mental illness and intellectual disability, as well as reasonable disability accommodations under section 504. [00:01:53] Speaker 02: Okay. [00:01:53] Speaker 02: So tell me on the, uh, on the allegations in the complaint though, they're all directed and reference ADX. [00:02:03] Speaker 00: Mr. Vacote's complaint necessarily discusses the conditions at ADX, as that is where he is housed. [00:02:08] Speaker 00: However, we are seeking injunctive relief and alleged ongoing harm. [00:02:11] Speaker 00: And it is the BOP's heavy burden to demonstrate that there is, quote, absolute no relief that this court can grant, as discussed in Rezac Benelli. [00:02:19] Speaker 00: BOP has not met that burden here today and has not demonstrated, based on the information, the record, that the harm is not ongoing. [00:02:26] Speaker 04: Well, we have his declaration, Mr. Baycoat's declaration, as far as how he's being treated it. [00:02:32] Speaker 04: USP Allentown, why is it not better for him to simply file a lawsuit there and start over? [00:02:41] Speaker 04: Because we don't know and we may not be the right forum. [00:02:45] Speaker 00: Requiring Mr. Bacow to start this case over again would be unjust and prudence ways in favor of allowing Mr. Bacow to continue litigating this case. [00:02:55] Speaker 00: Mr. Bacow's case is against the BOP as an entity and he is still being housed at BOP. [00:03:00] Speaker 00: While he has been transferred to Allenwood and is out of ADS, the walls might be different, but the harm is still the same to him as seen in his declaration. [00:03:08] Speaker 02: Well, why would it be harder for him? [00:03:11] Speaker 02: Because as it stands right now, your active complaint, or at least the one that was active at the time of dismissal, doesn't have any references to his current confinement. [00:03:24] Speaker 02: Your proposed amended complaint doesn't have any references to his current confinement. [00:03:28] Speaker 02: So you're going to have to file a new complaint anyway. [00:03:31] Speaker 02: So why is it burdensome on him just to file a new case? [00:03:35] Speaker 00: This litigation has been ongoing for nearly seven years, and Mr. Baker has been waiting for relief from BNP for nearly seven years. [00:03:42] Speaker 00: Requiring him to start all the way back at square one would be unjust. [00:03:46] Speaker 02: I mean, that's where he's starting, though. [00:03:47] Speaker 02: He's going to file an amended complaint. [00:03:49] Speaker 02: That starts everything over, doesn't it? [00:03:51] Speaker 00: There still would be information in the record. [00:03:53] Speaker 00: The record is extensive in this case already. [00:03:55] Speaker 00: And on remand, Mr. Baker would request that his claims proceed, pass the motion to this stage. [00:04:04] Speaker ?: Yeah. [00:04:05] Speaker 01: One of my concerns is if the case continues in this court and we reach a decision regarding some of the relief he's entitled to, and then I think he's within, is it Indiana? [00:04:21] Speaker 00: Pennsylvania. [00:04:21] Speaker 01: Okay. [00:04:22] Speaker 01: So the third circuit may have a different view of the law. [00:04:26] Speaker 01: And then we've got a real problem. [00:04:29] Speaker 01: Shouldn't it be in that court, in that circuit? [00:04:33] Speaker 01: And I guess I don't see all the great prejudice to him. [00:04:38] Speaker 01: If he were sufficiently prejudiced, that would be an important consideration. [00:04:42] Speaker 01: I don't think this is Article III mutinous we're talking about. [00:04:45] Speaker 01: It's, now the word escapes me. [00:04:52] Speaker 01: Prudential? [00:04:52] Speaker 01: Prudential mutinous, yes. [00:04:55] Speaker 01: And that seems to be a doctrine that would [00:04:59] Speaker 01: apply quite properly here. [00:05:02] Speaker 01: It seems to fit all the requirements for Prudential Mutinous. [00:05:06] Speaker 00: Well, Your Honor, Prudential Mutinous is not appropriate here. [00:05:09] Speaker 00: As is core discussed in Winsler v. Toyota Motor Sales, Prudential Mutinous requires a remedial promise or assurance of relief. [00:05:16] Speaker 00: And in fact, that has not happened here. [00:05:18] Speaker 00: BOP has consistently denied any violations of Mr. Bay coat's rights, and therefore it's impossible for BOP to provide a remedial assurance of relief. [00:05:27] Speaker 00: and therefore require Mr. Baycoat to start over again, would be unjust. [00:05:32] Speaker 04: But starting over again, he'd be in an easier position. [00:05:35] Speaker 04: You wouldn't be going through the underbrush here of what does paragraph 73 say and how does that relate to paragraph 79 and so forth and so on. [00:05:43] Speaker 04: He could just make his claims. [00:05:45] Speaker 04: He could say, I'm being held in solitary confinement still, or he could not say that if he's not. [00:05:51] Speaker 00: Again, Mr. Baycoat's case is against the BOP as a national entity. [00:05:55] Speaker 00: not against specific officials at ADX. [00:05:57] Speaker 04: So what if he had not been incarcerated at ADX? [00:06:00] Speaker 04: Would you contend that you could file suit here because BOP is a national entity? [00:06:06] Speaker 00: Then he was proper at the time to file the initial complaint, and that's why he filed here, Your Honor. [00:06:13] Speaker 00: Further, Mr. Bacow's claims are not barred by the Cunningham agreement for three different reasons. [00:06:18] Speaker 02: Before you go there, let me ask you a question. [00:06:19] Speaker 02: So if [00:06:22] Speaker 02: If venue is proper here at time of initial filings, but the basis for the complaint is undermined by a transfer or release or something like that, where Mr. Baycoat starts residing in a different jurisdiction, does the venue remain [00:06:47] Speaker 02: Even if the underlying premises of the original venue disappear, does the venue remain proper? [00:06:53] Speaker 00: Well, Your Honor, transfer alone cannot move an incarcerated plaintiff's claims, as this court has discussed in Abdulasi. [00:06:59] Speaker 00: In that case, the plaintiff was incarcerated at one Oklahoma facility and then was transferred to another Oklahoma Department of Corrections facility. [00:07:07] Speaker 00: And this court found that the case was not moved because he was still being denied access to a religious diet at the new facility. [00:07:13] Speaker 00: Therefore, Mr. Bako's claims against the BOP as an entity are not moot nor potentially moot because he is alleging ongoing harm at Allenwood by BOP. [00:07:22] Speaker 02: Right. [00:07:22] Speaker 02: I guess I want you to assume that the underpinnings of your current case are gone. [00:07:28] Speaker 02: And let's even say that it's not moot. [00:07:35] Speaker 02: that it's not moot, but that he's not in the jurisdiction anymore, that his current complaint is to confinement in Pennsylvania. [00:07:45] Speaker 02: Even though your venue was proper at the time you filed, is it still proper upon him being transferred to Pennsylvania? [00:07:55] Speaker 00: Yes, Your Honor, my venue remains proper here. [00:07:57] Speaker 02: Tell me your case for that. [00:07:59] Speaker 02: Do you have one? [00:08:00] Speaker 00: For example, [00:08:02] Speaker 00: And I'm due to see if, again, the plaintiff was transferred or, for example, in Chapman v. Bureau of Prisons, the plaintiff was transferred from ADX to another BOP facility. [00:08:11] Speaker 00: However, the case remained in the District of Colorado. [00:08:14] Speaker 00: If BOP could just transfer a plaintiff anytime and then move the case, it would prevent the plaintiffs from seeking their day in court and having their case heard. [00:08:23] Speaker 00: And it's no small thing to deprive the score of its jurisdiction. [00:08:26] Speaker 02: So I guess the problem I have with that argument is that [00:08:32] Speaker 02: That would be true if it was, if your complaint was directed at BOP in general. [00:08:40] Speaker 02: But in this case, your complaint was directed at BOP's treatment of him at ADX specifically. [00:08:50] Speaker 00: Again, Your Honor, the harm that is facing Mr. Baco to Allenwood is the same as seen in his motion to supplement the record. [00:08:56] Speaker 00: In his affidavit, he alleges the same harm that is in the complaint. [00:09:00] Speaker 00: And though he's in a different facility, he is still being held in solitary confinement and being denied reasonable disability accommodations. [00:09:07] Speaker 00: Therefore, the harm is ongoing. [00:09:09] Speaker 00: And because we are seeking injunctive relief, we should be allowed to proceed in this court. [00:09:13] Speaker 01: What relief could you get that would not be directed at a facility prison? [00:09:21] Speaker 01: within another circuit. [00:09:23] Speaker 01: So that facility could be subject to conflicting decisions by this circuit and the circuit that governs it. [00:09:31] Speaker 01: What relief are you seeking that would not present that possibility? [00:09:36] Speaker 00: Well, Your Honor, relief would be tailored and directed at the BOP as an entity, not specific officials. [00:09:41] Speaker 00: This is online Jordan V. Sosa where the plaintiff is suing specific officials at ADS and then his transfer [00:09:48] Speaker 00: the case because this court could not provide relief against those specific ADS officials where he was no longer housed. [00:09:54] Speaker 00: Here we are seeking relief from BOP as an entity and therefore the transfer does not move Mr. Bancote's case and we can still seek relief from BOP. [00:10:05] Speaker 01: Ultimately, there'd be an order saying, BOP has to do this with respect to your client at this facility in Pennsylvania. [00:10:16] Speaker 01: And somebody, another prisoner at that facility could seek relief through the courts and get decision after, say, appeal to the Third Circuit that would contradict our direction. [00:10:32] Speaker 01: comfort me that that can't happen because that's one reason why we may not want to be the court where this is ultimately decided. [00:10:43] Speaker 00: Well, Your Honor, again, we're seeking relief against BOP as an entity and therefore this relief would not be binding extracurricular officials, it would be binding BOP as a national entity. [00:10:54] Speaker 01: But the prison would be given directives with respect to two different prisoners that are inconsistent with one another. [00:11:01] Speaker 01: That doesn't seem like a very good way to run a prison. [00:11:06] Speaker 00: Well, respectfully, BOP would be giving those directions to the officials at that facility, and therefore it wouldn't be this court directing the facility to do something different. [00:11:15] Speaker 00: It would be a BOP when this court has jurisdiction over the BOP. [00:11:19] Speaker 04: What if Mr. Baycoat lost here? [00:11:21] Speaker 04: Would he still be able to bring action in Pennsylvania against BOP? [00:11:27] Speaker 00: It would be unjust to require Mr. Baycoat to litigate, start over. [00:11:31] Speaker 04: No, no, I'm not asking if he, if it would be unjust. [00:11:34] Speaker 04: I'm asking if he even can. [00:11:37] Speaker 04: If, if he loses in this court, does he have the ability to continue to litigate elsewhere based on your statement that [00:11:46] Speaker 04: Your suit is against BOP right now and across the board. [00:11:51] Speaker 00: And it's my understanding that yes, he would be able to file a suit in Pennsylvania. [00:11:55] Speaker 00: However, again, requiring Mr. Baco to start over as an illiterate plaintiff who's incarcerated in the District of Pennsylvania would be unjust. [00:12:02] Speaker 02: Well, he's represented by counsel, so the fact that he's illiterate doesn't really work an injustice on him, does it? [00:12:08] Speaker 02: Because we're not forcing him to file his own pleadings and presumably use a jailhouse lawyer, that type of thing. [00:12:15] Speaker 00: That is true. [00:12:18] Speaker 00: Again, I would like to briefly turn to the Cunningham Agreement and discuss why Mr. Baco explained you're not barred. [00:12:24] Speaker 00: First, Mr. Baco properly exercised his right not to be bound under the Class Action Fairness Act, as the BOP entirely defaulted on the notice requirements. [00:12:33] Speaker 00: Second, the legal release found in paragraph 73 of the Cunningham Agreement expired in December of 2019 at the end of the compliance period, and therefore Mr. Baco explained that you alleged ongoing daily harm [00:12:45] Speaker 00: are no longer barred, and even the plain language of the release, common paragraph 73, does not bar Mr. Baco's claims as he is seeking individualized relief. [00:12:54] Speaker 00: That does not pertain to the treatment of ADX and made mental health. [00:12:59] Speaker 02: Were his claims barred at the time he filed his lawsuit? [00:13:02] Speaker 02: That's too broad. [00:13:06] Speaker 02: You can answer that one too quickly. [00:13:09] Speaker 02: Insofar as the time for him being bound by the settlement agreement had passed, was that true when he first filed his complaint? [00:13:21] Speaker 00: Mr. Baker was not bound by the agreement when he filed his complaint and therefore was not barred. [00:13:26] Speaker 02: No, I understand that. [00:13:27] Speaker 02: I'm talking about your timing point. [00:13:31] Speaker 02: Because you said the timing only lasted for three years, right? [00:13:36] Speaker 02: And so my question is, did he file his initial complaint within the three-year period, or did he file the initial complaint after the three-year period had passed? [00:13:47] Speaker 00: His initial complaint was filed during the compliance period. [00:13:50] Speaker 00: However, the plain language of the legal release does not bar Mr. Bacote's claims. [00:13:54] Speaker 00: He's seeking relief that is individualized to him. [00:13:56] Speaker 00: He's not seeking systemic relief. [00:13:59] Speaker 00: And none of the relief he seeks pertains to the treatment of ADS inmate mental health. [00:14:04] Speaker 04: On that point, as far as paragraph 73 and systemic versus individual relief, your position is that paragraph 73 only bars [00:14:14] Speaker 04: systemic relief, is that right? [00:14:16] Speaker 00: Yes, Your Honor. [00:14:16] Speaker 00: Reading the contract as a whole, paragraph 79. [00:14:19] Speaker 04: Well, let's stick with 73 for just a moment, because there are three exceptions there, one of which is any claim by any inmate or a judicial determination concerning the inmate singular inmate's personal mental health diagnosis. [00:14:34] Speaker 04: And so if the rest of it, if the main body of paragraph 73 is only systemic, why would we have an exception for an individual claim? [00:14:45] Speaker 00: Even reading paragraph 73 in isolation from the rest of the agreement, Mr. Bay Coast Plains are not barred because none of the relief he seeks. [00:14:52] Speaker 04: Okay, are you conceding my point then that on paragraph 73 it doesn't apply solely to systemic and now we're moving to paragraph 79? [00:15:00] Speaker 00: No, Your Honor, I would read it to only bar systemic relief. [00:15:04] Speaker 04: Okay. [00:15:05] Speaker 04: And can you address my point, which is the exception speaks about an individual claim. [00:15:11] Speaker 04: Why would you need to have an exception marking out an individual claim if the body only bars systemic claims? [00:15:18] Speaker 04: That's what I don't understand about that argument. [00:15:22] Speaker 00: Even looking to, for example, the fairness hearing, Judge Mates's reading of the agreement sees it as barring only release [00:15:30] Speaker 00: that was systemic. [00:15:32] Speaker 00: At the fairness hearing, Judge Mage said, quote, I understand if any particular event should occur which an inmate considers himself deemed to have been mistreated and in violation of the Eighth Amendment, I don't see the settlement agreement excuse as possible misconduct. [00:15:45] Speaker 00: Therefore, even looking at Judge Mage's understanding of the agreement does not bar individualized claims. [00:15:52] Speaker 00: And I see I'm out of time. [00:15:54] Speaker 01: Don't worry about that. [00:16:00] Speaker 01: Did you have another argument on the merits that you had planned to present to us? [00:16:09] Speaker 00: We would just request that this court on remand instruct the district court to find that there is a private right of action under Section 504 to sue federal executive agencies for injunctive relief as seen in the plain language of the statute, Your Honor. [00:16:23] Speaker 01: Thank you, Counselor. [00:16:24] Speaker 00: Thank you. [00:16:29] Speaker 03: May it please the court, Kyle Brenton for the Federal Bureau of Prisons. [00:16:34] Speaker 04: And I don't want to hijack your argument, but I don't want to forget the last point that was raised there, which is the 504 on the private right of action. [00:16:42] Speaker 04: Does the government concede at this point that the district court was mistaken in that regard? [00:16:47] Speaker 04: Just so I'm clear. [00:16:48] Speaker 03: Your Honor, the government has waived reliance on that portion of the district court's order. [00:16:55] Speaker 03: Obviously that claim is barred under both the Cunningham agreement [00:16:58] Speaker 03: And it's also based on his transfer. [00:17:01] Speaker 03: Um, but we have waived reliance on that portion of the district court's opinion. [00:17:04] Speaker 03: That's correct. [00:17:08] Speaker 03: Presented with expert psychologist reports based on new testing of Mr. Baker. [00:17:13] Speaker 02: So just so we're clear on that one, you don't agree. [00:17:16] Speaker 02: You're not agreeing with that. [00:17:18] Speaker 02: If there's a private right of action, but you're not contesting it. [00:17:23] Speaker 03: Uh, essentially that's correct. [00:17:24] Speaker 03: Okay. [00:17:25] Speaker 02: Fair enough. [00:17:25] Speaker 03: That's correct. [00:17:27] Speaker 04: Well, what if we were to rule that there's not a private right of action? [00:17:32] Speaker 04: Would you feel like we'd overstepped your concession? [00:17:36] Speaker 04: In other words, I understand why you want to keep that powder dry for another day, but we may not want to. [00:17:42] Speaker 04: And so when you come in and you say, we're not contesting it, but we're not admitting it, you stand to lose on that ground. [00:17:51] Speaker 03: I appreciate that, Your Honor. [00:17:53] Speaker 03: Certainly the court in its discretion can do what it feels is appropriate. [00:17:58] Speaker 03: We are not relying on that portion of the district court's order, and that's about as far as I'm able to get without getting over my skis, Your Honor. [00:18:07] Speaker 03: So I'll cut right to the heart of it. [00:18:11] Speaker 03: This case is mooted by the transfer. [00:18:14] Speaker 03: And we've obviously presented our arguments on Article 3 mootness in the brief, and we stand on those arguments, happy to answer any questions. [00:18:22] Speaker 03: But I think that Judge Hart's question about prudential mootness really goes right to the heart of why the claims are mooted. [00:18:29] Speaker 01: Well, let me ask you something beforehand. [00:18:31] Speaker 01: Absolutely. [00:18:32] Speaker 01: Are you familiar with our decision, United States versus Winter Rose Old Rock from last year? [00:18:38] Speaker 03: I don't have that one at the tip of my tongue here. [00:18:41] Speaker 01: Did you file a motion to dismiss on mootness or prudential mootness? [00:18:48] Speaker 03: We did not file a freestanding motion. [00:18:49] Speaker 03: No, we argued mootness in our opening brief. [00:18:52] Speaker 01: Well, the Winter Rose Old Rock decision interpreted our local rule 27.3 to say if you don't file a motion to dismiss under our rule before filing your briefs, then you've waived that right. [00:19:11] Speaker 03: As I say, Your Honor, I'm not familiar with that opinion, happy to address it in a supplemental brief or supplemental submission to the court. [00:19:19] Speaker 01: But it may be that we're barred from even considering mootness or prudential mootness. [00:19:24] Speaker 01: So that's not an issue that you've noted. [00:19:27] Speaker 03: I mean, I think that, Your Honor, that mootness goes to the subject matter jurisdiction of the court. [00:19:32] Speaker 01: Not prudential mootness. [00:19:33] Speaker 01: Does prudential mootness? [00:19:35] Speaker 03: Prudential mootness does not go to the subject matter jurisdiction of the court. [00:19:37] Speaker 03: That's correct, Your Honor. [00:19:38] Speaker 01: And that's your better argument. [00:19:40] Speaker 03: It may appear so to the court. [00:19:43] Speaker 03: Yes, I think both arguments are strong. [00:19:45] Speaker 01: But go ahead with your argument on prudential mootness and mootness, but you may have waived. [00:19:53] Speaker 01: Absolutely. [00:19:54] Speaker 01: And thank you for that, Your Honor. [00:19:55] Speaker 01: I'll give you the site. [00:19:57] Speaker 01: Let's see. [00:20:01] Speaker 01: 76, Federal Reporter 4, 1314. [00:20:04] Speaker 01: Decided on August 11th of last year. [00:20:07] Speaker 03: Thank you, and we will certainly address that via supplemental submission. [00:20:12] Speaker 03: The aspects of this case that render it particularly appropriate for prudential mootness are, as Judge Carson recognized, [00:20:20] Speaker 03: in the complaint that relate to Mr. Bako's confinement and treatment relates specifically to ADX. [00:20:25] Speaker 03: He is no longer an ADX. [00:20:28] Speaker 03: He is now in a different circuit where the individuals with custody over him may be subject to conflicting rulings from the Third Circuit versus this court. [00:20:38] Speaker 03: And any facts related to his incarceration at Allenwood would be subject to the PLRA's exhaustion requirement. [00:20:44] Speaker 03: These are all [00:20:45] Speaker 03: very good reasons why, even if the court finds that some piece of his claims survive the Article III mootness analysis, they should still be dismissed under Prudential Mootness. [00:20:58] Speaker 01: That's interesting about the exhaustion of administrative remedies requirement. [00:21:05] Speaker 01: That could be used to [00:21:10] Speaker 01: play games against a prisoner who's got a legitimate claim and they just keep transferring. [00:21:16] Speaker 01: So the next violation has to restart a new litigation. [00:21:22] Speaker 01: How do you address the unfairness, at least the possibility of unfairness there? [00:21:28] Speaker 03: Well, I don't think that that's the case, Your Honor. [00:21:30] Speaker 03: I think, and I think it goes back to where a prisoner is seeking only prospective relief [00:21:37] Speaker 03: and they are transferred. [00:21:38] Speaker 03: What do they need in order to escape a mootness finding? [00:21:41] Speaker 03: And I think based looking at Jordan, looking at Abdul Hasib, I think they really need two things. [00:21:46] Speaker 03: One thing is some policy that applies at a level higher than the institution that they are at that shows that they are likely to be subject to the same conditions in their new facility. [00:21:58] Speaker 03: And the other is to have sued the appropriate defendants. [00:22:00] Speaker 03: Now, obviously that second part is not an issue in this case, but the first part is, [00:22:04] Speaker 03: The only nationwide policy that Mr. Beto relied on in his complaint is the treatment and care of inmates with mental illness. [00:22:11] Speaker 03: But the violation of that policy was keeping him at ADX, regardless of his severe mental illness. [00:22:17] Speaker 03: That's no longer the case. [00:22:19] Speaker 03: So I think, in your honor's hypothetical, I think that if a prisoner has pleaded truly a system-wide violation, as the prisoner in Abdul-Hassid did, [00:22:31] Speaker 03: then I think transfer does not move the claims as long as they've sued the appropriate defendants as well. [00:22:36] Speaker 03: So I don't think that where the violation truly is at a higher level, I don't think that there would be a further exhaustion requirement. [00:22:44] Speaker 03: But where the facts of the claim are necessarily specific to the institution, I think that there is an exhaustion requirement at a new facility because, and again, [00:22:57] Speaker 03: The purpose of exhaustion is not to throw up hurdles before a litigant. [00:23:01] Speaker 03: The purpose of exhaustion is to give the agency a chance to address the alleged violation first. [00:23:07] Speaker 03: So requiring exhaustion where the new violation truly is specific to the new institution, it only makes sense. [00:23:15] Speaker 02: So in your opinion, if the allegation was, I'm not receiving the proper treatment and conditions of confinement, [00:23:26] Speaker 02: at ADX and the BOP has no facility capable of providing them, then that might not be moot just because you moved him. [00:23:41] Speaker 03: I think that might not be Moot, Your Honor. [00:23:43] Speaker 03: I don't think that that's our case here. [00:23:45] Speaker 03: I don't think that further allegation is in this case. [00:23:49] Speaker 03: So I think that question could have waited another day, but I think that case certainly might not be Moot. [00:23:53] Speaker 02: Okay. [00:23:53] Speaker 02: I'm just trying to explain, because I take Judge Hartz's point as one that is worth exploring because if you have somebody with a claim about a certain prison, the [00:24:10] Speaker 02: inclination might be, let's move them, then they're not complaining about this prison anymore. [00:24:19] Speaker 02: And at some point, it's an evasive move to not deal with the problem, but to deal with a lawsuit. [00:24:27] Speaker 03: And I understand that concern, Your Honor, but I think in this case specifically, [00:24:32] Speaker 03: I think it is entirely inconsistent with what occurred on the ground to suggest that Mr. Baco was moved strategically to deprive this court of jurisdiction. [00:24:43] Speaker 03: Mr. Baco was moved because the BOP agreed with his experts that his diagnosis needed to be changed. [00:24:50] Speaker 03: Once his diagnosis was elevated to a severe mental illness diagnosis, under the BOP's standing procedures that apply to every single inmate in this country, [00:25:01] Speaker 03: He could no longer be placed at ADX, Absent Extraordinary Security Concerns, which were not present. [00:25:06] Speaker 03: So he was simply moved by operation of those ordinary policies. [00:25:12] Speaker 03: And again, I think, you know, when we're talking about lewdness, we talk, there's arguments in the briefs about voluntary cessation. [00:25:17] Speaker 03: You know, is he likely to be moved back? [00:25:19] Speaker 03: Well, even if his diagnosis were changed, [00:25:28] Speaker 03: And there would be an ability for him to challenge those things in Pennsylvania in the Third Circuit. [00:25:33] Speaker 01: Well, the diagnosis changed or some finding of great national security interest or something like that. [00:25:39] Speaker 01: Didn't you say with his diagnosis he couldn't stay at ADX absent? [00:25:44] Speaker 03: Extraordinary securities and concerns that cannot be managed elsewhere is the term from the policy, Your Honor. [00:25:52] Speaker 03: Yes. [00:25:52] Speaker 03: stipulated in this case that no such concerns were present as of his transfer. [00:25:56] Speaker 03: So any such concerns would need to be based on new and frankly unforeseeable events. [00:26:02] Speaker 03: Mr. Baker was not transferred as a litigation tactic. [00:26:06] Speaker 03: And I end, you know, I just think that to suggest otherwise, it completely misconstrues what happens in this case. [00:26:14] Speaker 02: I guess nobody here has suggested that you did it for litigation purposes, but that the rule you're advocating for [00:26:22] Speaker 02: could lead to that, and that is something that should be considered. [00:26:27] Speaker 03: Well, I think that we are simply advocating for application of the law as it stands, Your Honor, and so that would be where I would come out on that. [00:26:35] Speaker 04: Now, regarding mootness, does it matter who the defendant is? [00:26:40] Speaker 04: Jordan case individuals, defendants are sued and accordingly the transfer mooted it. [00:26:46] Speaker 04: But here it's the BLP that's sued, which is, of course, goes much further than an individual does. [00:26:54] Speaker 03: I think it matters, Your Honor. [00:26:56] Speaker 03: Absolutely. [00:26:56] Speaker 03: As I said, I think that an inmate has to have two things. [00:26:59] Speaker 03: They have to have a policy that applies at above the level of their own institution. [00:27:03] Speaker 03: And I think they have to have sued the correct defendants. [00:27:05] Speaker 04: And so you concede the second one. [00:27:07] Speaker 03: Yes, absolutely. [00:27:08] Speaker 03: The appropriate defendants or not point that was disposed of in Jordan is not present here, no. [00:27:15] Speaker 03: I'd like to move on and discuss the Cunningham release, if I could, because I think that's really, once we're past the question of mootness, I think that's the beating heart of this case. [00:27:25] Speaker 03: Mr. Baycoat obviously is a class member in Cunningham. [00:27:28] Speaker 03: He was the original named plaintiff in Cunningham. [00:27:31] Speaker 03: So he is bound by the release Cunningham was a 23B2 class action, so there's no right to opt out under the federal rules. [00:27:39] Speaker 03: The release, which is contained in its entirety in paragraph 73 of the agreement, bars claims, quote, that have been asserted in this litigation or that pertain to the treatment of ADX inmates' mental health. [00:27:53] Speaker 03: Now, all of Baycote's claims that are on appeal here fall within the scope of this release. [00:28:00] Speaker 03: And I think the clearest way to see that is to look at paragraph 76 of the complaint. [00:28:07] Speaker 04: How does a solitary confinement claim fit within this language? [00:28:12] Speaker 03: Absolutely, Your Honor. [00:28:12] Speaker 03: I think there are a couple of different ways that arguments that show that the solitary confinement claim falls within this language. [00:28:20] Speaker 03: The first is what I was just discussing, which is paragraph 76 of the complaint. [00:28:24] Speaker 03: Paragraph 76 is his prayer for relief. [00:28:27] Speaker 03: It applies on its face to all four claims, three of which are on appeal. [00:28:32] Speaker 03: It's got several subparagraphs, and two of those subparagraphs, C and E, specifically talk about retaliation. [00:28:39] Speaker 03: He didn't appeal retaliation. [00:28:40] Speaker 03: But every single one of the other subparagraphs, A, B, D, and F, use the word treatment and seek relief related to his treatment. [00:28:50] Speaker 03: Specifically seek declarations that he's been inadequately treated, [00:28:54] Speaker 03: that his treatment violates the Eighth Amendment, that he needs to be transferred to a facility that can treat him, and seeking a specific kind of treatment. [00:29:01] Speaker 03: So I think as to all the claims, the relief that he's seeking, the thing he's actually asking the court to give him is pertains to treatment. [00:29:11] Speaker 04: Solitary confinement pertains to treatment how? [00:29:14] Speaker 04: I'm still searching for that. [00:29:16] Speaker 03: Well, I think yes, Your Honor. [00:29:17] Speaker 03: So I think the first argument is on that solitary confinement claim, he has only asked for relief based on the [00:29:22] Speaker 03: So I think that that's my first response. [00:29:25] Speaker 03: The second response is that the release bars claims brought in Cunningham and claims that pertain to mental health treatment. [00:29:34] Speaker 03: Now, the claims in Cunningham were that housing inmates with serious mental illness at ADX violates the Eighth Amendment. [00:29:40] Speaker 03: That is essentially the same claim that he brought here. [00:29:43] Speaker 03: So the solitary confinement claim [00:29:48] Speaker 03: is substantially the same as the claims brought in. [00:29:51] Speaker 04: You're saying it's the way he pleaded it. [00:29:53] Speaker 03: Yes. [00:29:54] Speaker 04: And that the way he pleaded it was that with his conditions, that made solitary confinement particularly bad. [00:30:00] Speaker 03: That's exactly right. [00:30:01] Speaker 03: You're right. [00:30:01] Speaker 03: His untreated mental illness harms him. [00:30:05] Speaker 03: Because of his untreated mental illness, and this is right out of the district court's order, the solitary confinement treatments at ADX harms him in a particular way that it does not harm other inmates. [00:30:16] Speaker 03: And so that is a claim [00:30:18] Speaker 03: that pertains to treatment, particularly in light of the fact that the relief that he's seeking on that claim is all declarations and injunctions about his treatment. [00:30:29] Speaker 04: So it comes down to the elasticity it pertains to. [00:30:33] Speaker 03: Absolutely, Your Honor. [00:30:34] Speaker 03: And I think the law is absolutely clear, particularly in Colorado, pertains to is a very broad term. [00:30:39] Speaker 03: And I think it's appropriate to apply it broadly. [00:30:43] Speaker 03: Now, I think we've got a couple of contracts. [00:30:46] Speaker 03: We've got the class action fairness [00:30:48] Speaker 03: Act argument, and we've got a couple of contract interpretation arguments. [00:30:52] Speaker 03: I know I say I have very little time left. [00:30:54] Speaker 03: I would like whatever, whichever of those points the court is concerned about, I'm happy to address. [00:30:58] Speaker 03: I think that the release is contained entirely in paragraph 73. [00:31:02] Speaker 03: Paragraph 79 does something entirely different, which is dictating how the release can be used in evidence in other cases with other parties. [00:31:11] Speaker 03: I think Judge Phillips's question about individual versus systemic [00:31:16] Speaker 03: in light of the three exceptions in 73 is right on the money. [00:31:20] Speaker 03: The point about the duration of the release is absolutely waived. [00:31:24] Speaker 03: They made that argument in their response to the motion to dismiss. [00:31:28] Speaker 03: The magistrate judge rejected it in the recommendation. [00:31:31] Speaker 03: They did not make that argument in their objection to the recommendation. [00:31:35] Speaker 03: And the district court noted that failure. [00:31:38] Speaker 03: So that is an open and shut. [00:31:40] Speaker 03: in a firm waiver situation with regard to paragraph 82 in the duration of the release. [00:31:46] Speaker 03: I see my time is up. [00:31:47] Speaker 01: Let me ask you a couple of questions. [00:31:48] Speaker 03: Absolutely. [00:31:50] Speaker 01: The district court, as I understood it, said that one of the requests made for relief that wasn't barred by the settlement was the request for assistance with filing administrative grievances. [00:32:07] Speaker 01: Why do you think that was barred by the release? [00:32:09] Speaker 03: Absolutely, Your Honor. [00:32:10] Speaker 03: I think for a couple of reasons. [00:32:12] Speaker 03: First, if you read the complaint carefully, that request is in paragraph 65 of the complaint. [00:32:18] Speaker 03: If you read the complaint carefully, he's not asking the court to order that he get any particular assistance with the agreements process. [00:32:25] Speaker 03: He's saying, I asked BOP for this. [00:32:28] Speaker 03: They didn't give it to me. [00:32:30] Speaker 03: That violated the Rehabilitation Act. [00:32:32] Speaker 03: But when you get to the relief you requested, he didn't ask for that injunction. [00:32:36] Speaker 03: So I think that that [00:32:38] Speaker 03: So I think that that list of denied accommodations from the past is not something that he's asking the court to grant him relief on now. [00:32:46] Speaker 01: But the district court thought he was seeking that relief. [00:32:49] Speaker 03: The district court did think that, yes. [00:32:50] Speaker 01: Shouldn't we defer to that? [00:32:52] Speaker 03: Well, no, because I don't think that, I mean, this is on a motion to dismiss, so I don't think that the court defers in particular to any aspect of the district court's finding. [00:33:01] Speaker 03: But I also would say, I would point the court to the discussion of this issue in the opening brief around page 47. [00:33:07] Speaker 03: If the court can separate out what he wants in terms of access to programming, access to the grievance process from changes to his mental health treatment, then I think you're able to read it a lot more carefully than I can, because the way that I see it, it has been pleaded those two things are identical. [00:33:28] Speaker 03: They even say in the brief that here the programming constitutes the treatment. [00:33:35] Speaker 03: That's from page 47 of the brief. [00:33:37] Speaker 03: The access to programming that he wants is simply improved mental health treatment. [00:33:42] Speaker 03: Those things are absolutely intertwined and I think the breadth of the term pertains too. [00:33:49] Speaker 03: shows that all the aspects of his Rehabilitation Act claim were barred by the release. [00:33:53] Speaker 01: And I suspect you'd say the same thing with the district court's statement that he was requesting that he not be punished for behaviors that are manifestations of his mental illness. [00:34:05] Speaker 03: Absolutely, Your Honor. [00:34:07] Speaker 01: How does that pertain to mental health treatment? [00:34:11] Speaker 03: Well, I think because, again, look to paragraph 76, look to the relief he's requesting on that claim, [00:34:17] Speaker 03: He's requesting changes to his treatment. [00:34:19] Speaker 03: And I think that the reason that he alleges he is acting out in a way that results in punishment is because he's not getting the treatment that he needs and that he claims to need. [00:34:36] Speaker 03: So if he gets the treatment that he claims to need, he won't be punished for those things. [00:34:40] Speaker 03: But again, we are, the treatment, [00:34:44] Speaker 03: and the accommodations are so tightly tied up together that there's no way that the term pertains to, does not sweep them both up. [00:34:52] Speaker 01: If we disagree with you on that, how does that affect your prudential mootness argument? [00:34:59] Speaker 03: Well, I think if you disagree that the Cunningham release barred the Section 504 claim altogether, that claim is still moot based on the transfer. [00:35:08] Speaker 03: All of the arguments we make with regard to the transfer [00:35:11] Speaker 03: applied with full force to all aspects of the Section 504 claim. [00:35:15] Speaker 03: So I think it's moot under Article 3. [00:35:19] Speaker 03: To the extent the court disagrees with that, I think it's prudentially moot. [00:35:25] Speaker 01: Thank you, counsel. [00:35:26] Speaker 01: Thank you. [00:35:29] Speaker 01: Your time expired. [00:35:29] Speaker 01: We went over a little bit with him. [00:35:31] Speaker 01: So I'll give you three minutes, Max. [00:35:39] Speaker 00: I'd like to give this court comfort that the district court does have the ability to hear this case, even though the Bureau of Prisons has transferred Mr. Baco. [00:35:46] Speaker 00: First, venue is assessed at the time of filing, and venue is proper at the time of filing. [00:35:51] Speaker 00: For example, in Chapman v. Bureau of Prisons, that plaintiff was transferred from ADS to, sorry, Terrejo in Indiana, and the District Court of Indiana actually transferred the case back to the District of Colorado because it found venue improper in Indiana. [00:36:07] Speaker 00: Second, the district court can hear this case and to hold otherwise would mean that he would have nowhere to have his case heard as the BOP could transfer Mr. Baycoat again and then again deprive another federal court of its jurisdiction. [00:36:19] Speaker 00: Therefore, no plaintiff that is incarcerated could have their case heard on the merits as the BOP has unilateral control over their location. [00:36:28] Speaker 00: Additionally, I'd like to briefly address the fact that Mr. Baycoat's solitary confinement claim does not seek mental health treatment. [00:36:35] Speaker 00: He is seeking relief [00:36:36] Speaker 00: from the conditions of confinement as a seriously mentally ill and intellectually disabled incarcerated plaintiff. [00:36:43] Speaker 02: Is his solitary confinement claim intertwined with him being mentally ill? [00:36:49] Speaker 00: The Eighth Amendment treats different groups of people differently. [00:36:52] Speaker 00: For example, it's unconstitutional to execute someone with a serious mental illness. [00:36:57] Speaker 00: Similarly, it's unconstitutional to hold a seriously mentally ill plaintiff in solitary confinement because of the unique harms it has on people with serious mental illness. [00:37:07] Speaker 02: Okay, sounds like that's yes. [00:37:08] Speaker 02: Yes, Your Honor. [00:37:09] Speaker 02: Okay. [00:37:10] Speaker 00: Additionally, I would like to address the accommodations that Mr. Baker was seeking under Section 504. [00:37:16] Speaker 00: As this Court noted, they are not intertwined with treatment. [00:37:21] Speaker 00: As discussed in Bagator, an accommodation is an exception to or a change in a rule that unduly burdens a disabled individual. [00:37:29] Speaker 00: For example, assistance with grievances and programming would allow Mr. Baco to successfully participate in programming and prepare for life post incarceration, which is the relief that he really is seeking here today. [00:37:40] Speaker 00: Allowing Mr. Baco to access programming that other incarcerated people have would do so, and this accommodation would allow him to participate as he is unable to read, and most of the programming is in workbooks. [00:37:57] Speaker 01: Thank you. [00:38:00] Speaker 01: Cases submitted. [00:38:00] Speaker 01: Counselor excused. [00:38:02] Speaker 01: Excellent arguments. [00:38:04] Speaker 01: I'd like to tell you a little story, if I could, involving Steve McAllister as a professor at University of Kansas and taught appellate [00:38:18] Speaker 01: And I heard this from a professor at another university, but Callister confirmed this to me. [00:38:26] Speaker 01: He had a student arguing the case against him in the US Supreme Court. [00:38:33] Speaker 01: The former student was the petitioner's attorney. [00:38:38] Speaker 01: And after she spoke for a moment, a minute or so, he scribbled a note. [00:38:44] Speaker 01: which you wouldn't expect. [00:38:47] Speaker 01: That would be proper decorum of the Supreme Court. [00:38:50] Speaker 01: And what is going on here? [00:38:51] Speaker 01: And what he had written, still the professor talking to a student said, slow down. [00:39:00] Speaker 01: So you do have to worry about the slow speed of the minds of the court at times. [00:39:05] Speaker 01: So that's something to keep in mind. [00:39:07] Speaker 01: But that was excellent. [00:39:09] Speaker 01: You should be very proud. [00:39:10] Speaker 01: Your teachers should be very proud. [00:39:15] Speaker 01: You may now depart.