[00:00:00] Speaker 03:
We'll turn to our next argument today, Blake versus Wallace, 22-3163.

[00:00:20] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:23] Speaker 02:
My name is Selby Brown, and along with my law partner, Hathaway Burden,

[00:00:28] Speaker 02:
I represent Plaintiff Appellant Shidon Blake.

[00:00:33] Speaker 02:
I plan to reserve three minutes for rebuttal.

[00:00:36] Speaker 02:
We'll see how that goes.

[00:00:38] Speaker 02:
This is a case about access to the courts.

[00:00:42] Speaker 02:
In 2020, Mr. Blake was an inmate at the Kansas Department of Corrections in a state facility.

[00:00:50] Speaker 02:
He submitted a complaint that he was forcibly medicated with fentanyl and morphine

[00:00:58] Speaker 02:
and sent to a hospital after refusing medical treatment and even though he was not displaying symptoms.

[00:01:06] Speaker 04:
Well, he was showing symptoms.

[00:01:08] Speaker 04:
He was showing slurred speech, high anxiety, previous stroke, previous heart problems.

[00:01:20] Speaker 04:
That's sort of

[00:01:24] Speaker 04:
other things that it was not just saying I'm perfectly fit.

[00:01:29] Speaker 02:
Respectfully, Your Honor, his complaint specifically says I was not demonstrating stroke symptoms.

[00:01:36] Speaker 04:
Well, he said that, but the facts are that he had a stroke, that he was slurring his words.

[00:01:44] Speaker 04:
There were several different things that

[00:01:46] Speaker 04:
would tip somebody off and if he had dropped dead in the floor and because they didn't take him, you'd be standing there saying that they should have taken him to the hospital.

[00:01:56] Speaker 02:
I do recognize the tension between the general case that is a deliberate indifference medical case and this case and that it is an inmate actually saying I wanted to refuse medical treatment.

[00:02:07] Speaker 02:
The procedural posture here is very important.

[00:02:09] Speaker 02:
We are at a pre-screening stage.

[00:02:12] Speaker 02:
The district court said I'm dismissing this for failure to state a claim.

[00:02:16] Speaker 02:
And the facts that your honor is referencing are from the Martinez report.

[00:02:20] Speaker 02:
And it is very well established in this circuit that you cannot use a Martinez report to contradict the allegations in the plaintiff's complaint.

[00:02:30] Speaker 02:
And I'd like to take you as my first point, and this really is the most important part of this entire appeal, is that his allegations

[00:02:41] Speaker 02:
are that he was not demonstrating stroke symptoms.

[00:02:45] Speaker 02:
Understanding that the defendants dispute that in the Martinez report, they haven't actually made merits arguments in this case until they got before this court.

[00:02:54] Speaker 02:
And the Martinez report does include allegations and unsworn statements from officers saying that they had observed slurred speech.

[00:03:03] Speaker 02:
But if you take a look, first let's start just with the complaint.

[00:03:06] Speaker 02:
So the complaint is a handwritten form

[00:03:09] Speaker 02:
And of course, it could have been clearer.

[00:03:10] Speaker 02:
There's plenty of law explaining why we hold pro se plaintiffs to a lower standard.

[00:03:16] Speaker 02:
There's the Haynes Supreme Court standard.

[00:03:19] Speaker 02:
And when you look at the complaint itself, and that's really mostly on the record at page 12, there's one big page where he really explains his version of events.

[00:03:29] Speaker 02:
So first he says, they said I looked like I was experiencing a stroke, but I was being recorded and spoke clearly, not

[00:03:38] Speaker 02:
demonstrating any symptoms of a stroke.

[00:03:42] Speaker 03:
Let me stop with two things.

[00:03:44] Speaker 03:
Of course.

[00:03:45] Speaker 03:
One, he does allege that the people at the prison, at the jail, thought he was having a stroke.

[00:03:53] Speaker 03:
That's correct, right?

[00:03:55] Speaker 02:
I think reading his allegations fairly, he's not suggesting they thought he had a stroke.

[00:04:02] Speaker 02:
The times that he says things that come close to that, the syntax is kind of weird, and he is

[00:04:08] Speaker 02:
unambiguous that he was not displaying symptoms.

[00:04:11] Speaker 02:
If you're not displaying symptoms, there's nothing to observe.

[00:04:14] Speaker 02:
So the idea that the people thought he was having symptoms, if you accept his allegations that I was not demonstrating any symptoms of a stroke, which he repeats, and I've got some references we can go over.

[00:04:27] Speaker 03:
I see you have another question.

[00:04:31] Speaker 03:
I see your point on that.

[00:04:34] Speaker 03:
I'm not sure I agree with it.

[00:04:36] Speaker 03:
But he references the video in his complaint.

[00:04:41] Speaker 03:
We have cases saying that makes the video part of the complaint.

[00:04:46] Speaker 03:
Yes, Your Honor.

[00:04:47] Speaker 03:
Even if it's used in a Martinez report, it's still part of the record that we can consider on a motion to dismiss.

[00:04:57] Speaker 03:
How do you address that point?

[00:04:59] Speaker 02:
I think the video supports his position.

[00:05:02] Speaker 02:
He's saying he was not demonstrating stroke symptoms.

[00:05:05] Speaker 02:
You see him at the very beginning of the video, they're shackling him.

[00:05:10] Speaker 02:
He's speaking clearly.

[00:05:11] Speaker 02:
He's anxious, and he explains his anxiousness in the record that he was afraid of prison officials.

[00:05:17] Speaker 02:
There's a page, in fact, in the Martinez report that shows how many disciplinary incidents he had in this prison, especially when compared to his long stint in prison.

[00:05:28] Speaker 02:
It's a long list, particularly at this facility.

[00:05:32] Speaker 02:
And he was anxious, but he's not slurring his speech.

[00:05:36] Speaker 02:
His face isn't drooping.

[00:05:37] Speaker 02:
There's no symptomology that we see.

[00:05:39] Speaker 02:
You agree that we can consider that video?

[00:05:42] Speaker 02:
I, because he references the video in his complaint, I would agree that you can consider it.

[00:05:46] Speaker 02:
But I also do not, the one place that defendants latch onto is this, that he offered that he was

[00:05:57] Speaker 02:
that someone asked when did the symptoms start and he starts to offer it, but he gets cut off and he doesn't fully explain what he was seeing.

[00:06:05] Speaker 02:
It's also the fact that the defendants say in the video that they thought he was having a stroke.

[00:06:12] Speaker 02:
Even though you can consider the video, I don't think that it's proper for the district court to make a credibility determination at this stage

[00:06:25] Speaker 02:
that what the officers were saying in that video reflected their true observations and true beliefs.

[00:06:32] Speaker 03:
But if we read the complaint, it's not alleging that they were misrepresenting their thinking.

[00:06:43] Speaker 03:
You've got to challenge the fact before the judge can consider it.

[00:06:50] Speaker 03:
and we read the complaint as saying that the officers thought he was having a stroke, then we would need some evidence.

[00:07:02] Speaker 03:
He would need to challenge that.

[00:07:04] Speaker 03:
And he hasn't done that.

[00:07:05] Speaker 04:
Yeah, I didn't think he challenged the background facts.

[00:07:09] Speaker 02:
Especially, I think he does.

[00:07:11] Speaker 02:
So starting just with the complaint, and then I can go to other places in the record where I think it's a little clearer.

[00:07:16] Speaker 02:
But just in the complaint, first,

[00:07:19] Speaker 02:
Foremost, I'm not demonstrating symptoms of a stroke.

[00:07:21] Speaker 02:
If you're not demonstrating symptoms, there's nothing to observe.

[00:07:24] Speaker 02:
So the rest of it falls apart there.

[00:07:26] Speaker 02:
And he's very explicit.

[00:07:28] Speaker 02:
I mean, there's not really room for interpretation of I'm not demonstrating symptoms of a stroke.

[00:07:33] Speaker 01:
Well, hold on.

[00:07:33] Speaker 01:
But if we can consider the video, because it's part of the complaint, and none of us, I won't speak for my colleagues, but I'm not a physician with a lot of expertise in stroke symptomology.

[00:07:46] Speaker 01:
But not even talking about the credibility of those who are observing him.

[00:07:49] Speaker 01:
But what if I watch the video and I do see trembling and I do see him unable to get off the essentially the bed where he is to sit in the wheelchair.

[00:08:00] Speaker 01:
And also I have no baseline for his behavior because I've never seen Mr. Blake prior to that video.

[00:08:04] Speaker 01:
So I don't know what his normal sort of

[00:08:07] Speaker 01:
mental state is.

[00:08:08] Speaker 01:
He seems very agitated.

[00:08:10] Speaker 01:
So why can't I watch the video and say, well, I'm not sure that's a well-pleaded fact?

[00:08:14] Speaker 01:
He says I have no symptoms because even as a lay person, I feel like I'm observing symptoms.

[00:08:20] Speaker 02:
I think there is one piece in the video where the EMT looks at this guy who's presenting all the things that you're describing.

[00:08:26] Speaker 01:
Yeah, but this is before the EMT gets there.

[00:08:28] Speaker 01:
This is while the CSOs are trying to put him into the wheelchair.

[00:08:32] Speaker 02:
And he explains that he's anxious because he's afraid in that moment.

[00:08:36] Speaker 02:
So any trembling, I think it's equally plausible that he's trembling.

[00:08:39] Speaker 02:
He has said, I want to refuse medical treatment.

[00:08:42] Speaker 02:
Who is requiring me to be restrained here?

[00:08:45] Speaker 02:
There is a real inconsistency between being put in a restraint, which the department policies, which are part of the record, I think at 180, specifically say that a nurse after a restraint is supposed to go check to see if circulation has been hindered.

[00:09:02] Speaker 02:
So there is a disconnect between saying, I think you're having a stroke, but I'm going to put you in a restraint chair.

[00:09:07] Speaker 02:
And you hear Mr. Blake say that to fellow inmates as they're wheeling him out.

[00:09:11] Speaker 02:
You know, they think I'm having a stroke, but they're treating me like this.

[00:09:14] Speaker 02:
You already know this.

[00:09:16] Speaker 02:
He explains that this treatment is inconsistent with the way he had been treated before.

[00:09:21] Speaker 02:
And I do think it's compelling that when he is wheeled into the triage unit, the first, like what are the first things that the EMT say it says is you're not experienced.

[00:09:30] Speaker 02:
I don't, I don't see any symptoms of a stroke.

[00:09:32] Speaker 02:
When he gets to the hospital, the doctor doesn't even run any tests.

[00:09:35] Speaker 02:
In triage, he alleges, not in the complaint, but in later record materials, that his blood pressure was normal.

[00:09:41] Speaker 02:
There were all these signs showing that there are a lot of inconsistencies with the way that the officers are behaving, the way they're departing from norms, not offering him a refusal.

[00:09:53] Speaker 02:
The EMT is not saying, oh man, we really gotta get you to the hospital right this minute.

[00:09:58] Speaker 02:
And more to the point, it is not a case where it's, here's a diabetic, and we need to give them insulin, and there's an obvious connection even to a lay person.

[00:10:07] Speaker 04:
They say they give him fentanyl and morphine for pain, not for stroke symptoms, and he- Excuse me, before you run out of time, you're seeking injunctive relief.

[00:10:17] Speaker 04:
He is no longer in Kansas, he's in Maryland.

[00:10:21] Speaker 04:
Doesn't that moot the injunctive relief without showing that he may be coming back to Kansas more than just speculation?

[00:10:32] Speaker 02:
In Washington v. Harper, they actually address a similar thing at the very beginning of the opinion.

[00:10:39] Speaker 02:
And because of the transfers, they said that the mootness was capable of repetition.

[00:10:48] Speaker 02:
Mr. Blake has been transferred twice since we've been representing him in the last year.

[00:10:52] Speaker 02:
I don't think that it is outside the realm of possibility that he gets returned to the Kansas.

[00:10:58] Speaker 04:
Well, it's speculation, though, that he might be returned.

[00:11:00] Speaker 04:
He might go to Ohio, too.

[00:11:02] Speaker 02:
Right now, he's in Illinois.

[00:11:04] Speaker 02:
So he's gone from Maryland to Kansas, to Maryland, to Kansas, to Maryland, to Illinois over the course of his treatment.

[00:11:14] Speaker 03:
How would a chance for relief work?

[00:11:16] Speaker 03:
Sorry?

[00:11:17] Speaker 03:
How would injunction relief work if he's in a different circuit, much less a different district?

[00:11:22] Speaker 03:
I'm not sure what happens if we had a ruling and then there's an issue raised in the state where he's moved to, and a district court rules differently and a circuit court rules differently.

[00:11:38] Speaker 03:
It's pretty unwieldy to handle that.

[00:11:42] Speaker 02:
Well, I think the injunctive relief would be applied specifically to these defendants.

[00:11:46] Speaker 02:
There is another issue.

[00:11:47] Speaker 02:
There is another issue that he, I mean, it's equitable relief at least.

[00:11:54] Speaker 02:
Because of events following this, you know, he goes to the hospital, he gets a fake write-up that the officer admits was fake.

[00:12:00] Speaker 02:
This seems to be part of an overall course of events and it has impeded his ability to get parole.

[00:12:05] Speaker 02:
And so I think part of it is literally clearing his record so that he can use that.

[00:12:09] Speaker 04:
There's another problem I see that he's sued the officers in their official capacity.

[00:12:18] Speaker 04:
You don't sue them in their official capacity.

[00:12:22] Speaker 02:
Yes, Your Honor.

[00:12:23] Speaker 02:
And I think that's one of the grounds on which the court could remand for amendment.

[00:12:28] Speaker 02:
It is a pro se litigant, and even though he sues them in their official capacity.

[00:12:32] Speaker 04:
And he hasn't alleged individual involvement.

[00:12:37] Speaker 04:
It's all very general.

[00:12:38] Speaker 04:
And that's sufficient to dismiss for failure to state a claim.

[00:12:43] Speaker 02:
Again, respectfully, this isn't a case where we're talking about a unit supervisor who wasn't present.

[00:12:49] Speaker 02:
Every one of these defendants was in the room.

[00:12:51] Speaker 04:
But they haven't named them specifically and said how they harm this individual.

[00:12:57] Speaker 04:
You can't just say everybody there did it.

[00:13:00] Speaker 02:
He does have a specific allegation on R196 that nurse Christian is who suggested that Mr. Blake should be medicated.

[00:13:08] Speaker 02:
He also has an allegation, and I think taking our arguments and

[00:13:13] Speaker 02:
the defendants together, they say Gorman observed him having symptoms.

[00:13:17] Speaker 04:
If you accept Mr. Blake... Well, aside from that, you have no... He has not alleged specific harm from specific individuals.

[00:13:28] Speaker 04:
He hasn't done it.

[00:13:30] Speaker 04:
He hasn't named them and what they did to him.

[00:13:33] Speaker 04:
Well, what they did to him was they... I know what they ultimately did, but that's not sufficient.

[00:13:40] Speaker 02:
If they, if they lied and they were, this is the Buck case, if they lied and they were the catalyst for an event that led to a violation of his constitutional rights, they lied about him having... You still have to name the individuals and say to claim against them, not in their official capacity.

[00:13:58] Speaker 04:
And have you proposed an amended complaint?

[00:14:01] Speaker 04:
I didn't see any indication that you had.

[00:14:05] Speaker 02:
Correct, he has not submitted an amended complaint.

[00:14:07] Speaker 02:
This is a screening dismissal, and he has not had the opportunity.

[00:14:13] Speaker 02:
There's substantial case law in this circuit that... You have represented him for a year.

[00:14:18] Speaker 04:
Did you seek to file an amended complaint in the district court?

[00:14:22] Speaker 02:
I've been representing him for a year in this court.

[00:14:25] Speaker 02:
I was appointed by this circuit to represent him here.

[00:14:30] Speaker 02:
I'll reserve my remaining 40 seconds for rebuttal, if I may.

[00:14:34] Speaker 03:
One factual question.

[00:14:35] Speaker 03:
I thought he had amended the complaint already once.

[00:14:38] Speaker 02:
No, he sought to amend the complaint.

[00:14:39] Speaker 02:
I believe it was after the district court had ordered the Martinez report and said, I'm not going to consider anything else.

[00:14:46] Speaker 02:
When he did, as a pro se litigant, he didn't understand the process.

[00:14:50] Speaker 02:
And it was before, I think later on, we see there are more allegations that we can piece together that this narrative that he has is that he wasn't experiencing symptoms, that he wasn't demonstrating symptoms.

[00:15:03] Speaker 02:
The officers were departing from a normal course of conduct.

[00:15:06] Speaker 02:
And as a result, we can infer that no one actually believed he was having a stroke.

[00:15:14] Speaker 02:
So we would ask for the case to be reversed and remanded.

[00:15:18] Speaker 02:
I see I'm out of time, so I'll.

[00:15:25] Speaker 05:
Good morning, your honors.

[00:15:27] Speaker 05:
I may please the court.

[00:15:28] Speaker 05:
Assistant Solicitor General Ryan Ott on behalf of the correctional officers Wallace, Gorman, and Chastain.

[00:15:34] Speaker 05:
Before I get into my argument, I just want to make

[00:15:36] Speaker 05:
I want to clarify one fact that an appellant said.

[00:15:39] Speaker 05:
None of the defendants prepared the Martinez report.

[00:15:43] Speaker 05:
It was prepared by the Kansas Department of Corrections, who's not a party here.

[00:15:47] Speaker 05:
Additionally, there's good reason why this is the first time the defense has made any arguments on the merit.

[00:15:55] Speaker 05:
As the appellant noted, this was on screening.

[00:15:58] Speaker 05:
We haven't filed an answer yet or a motion dismissed, so we have had no opportunity in the district court to address the merits.

[00:16:10] Speaker 05:
The district court ordered a Martinez report because it sought to clarify the issues as well and fill in the factual gaps of Mr. Blake's complaint.

[00:16:19] Speaker 05:
After reviewing... You know, they can't fill in the gaps in such ways to contradict the complaint.

[00:16:24] Speaker 05:
No.

[00:16:26] Speaker 05:
What I meant by filling the gaps is Mr. Blake made several allegations but didn't allege a lot of actual facts.

[00:16:36] Speaker 05:
The district court used the Martinez report to fill in the facts.

[00:16:41] Speaker 05:
For instance, as your honors noted, the symptoms that were discussed in the video, he states in his complaint

[00:16:50] Speaker 05:
that he did not suffer any stroke symptoms.

[00:16:54] Speaker 05:
It doesn't say he suffered no symptoms at all.

[00:16:57] Speaker 05:
When you watch the video, it's, excuse me, Gorman, I believe, and then the nurse do discuss symptoms with the EMT.

[00:17:07] Speaker 05:
But what Defendants Primary Rhyme are words from Mr. Blake is Blake himself, who indicated, showed his hand was shaking and told,

[00:17:18] Speaker 05:
the EMTs that this happened this morning, that he said, this shit happens all the time, I know how to deal with it.

[00:17:26] Speaker 05:
Blake was the one who told them that he was having chest pain.

[00:17:30] Speaker 05:
And while Gorman was the first one who told the EMTs that he was starting a speech,

[00:17:35] Speaker 05:
It was Blake who was when they were trying to determine the time frame that Blake offered that it was I think he was referencing a show or a program maybe at what time is usually on and suggested around 650 in the morning So these are all things that that came from Blake himself his words himself These were things that were found in the video that are not contradictory of his complaint his his statement in

[00:18:01] Speaker 05:
His complaint that he was not suffering stroke symptoms is frankly an opinion.

[00:18:07] Speaker 05:
He's not a medical doctor any more than I am or your honors are.

[00:18:11] Speaker 05:
It is his opinion that it wasn't stroke symptoms, but those are all symptoms that can easily be viewed as a stroke by somebody observing him.

[00:18:17] Speaker 05:
And given his past history, that was a reasonable determination to it.

[00:18:22] Speaker 03:
Sorry.

[00:18:23] Speaker 03:
Well, when he got to the emergency room, they didn't think he had any stroke symptoms.

[00:18:27] Speaker 03:
Is that correct?

[00:18:28] Speaker 05:
That's what he alleged.

[00:18:31] Speaker 05:
Take that factors through, so yes.

[00:18:33] Speaker 03:
What about the EMTs when they arrived?

[00:18:37] Speaker 03:
Did they observe any symptoms of a stroke?

[00:18:41] Speaker 05:
The EMTs did not, on the video there's no, they do not say they observed symptoms of the stroke.

[00:18:47] Speaker 05:
They said he looked okay.

[00:18:50] Speaker 05:
But they also, they talked with the correctional officers as well as the nurse, but then they also talked directly with Blake and after talking with Blake and then finding out from some of the correctional officers there that they're going to have to wait a bit to get the proper restraints to take in the hospital.

[00:19:05] Speaker 05:
The male EMT made a decision on his own that he was going to provide him with fentanyl for Blake's pain.

[00:19:14] Speaker 01:
Council, can I ask, in the context of trying to determine whether Mr. Blake has

[00:19:19] Speaker 01:
set forth well-pleaded facts in his complaint.

[00:19:22] Speaker 01:
We've been talking about the incorporation of the video into that complaint, and there are two things that I would ask for your help on in terms of observance from the video.

[00:19:31] Speaker 01:
The first is when they put him into the wheelchair to restrain him, and there's a lot of agitation, and he wants to know who the captain is that ordered it.

[00:19:40] Speaker 01:
But what was the medical or penological interest in putting him in that chair and restraining him at that time?

[00:19:47] Speaker 05:
So the interest, I do want to make clear that the excessive force claim for putting him in the restraint chair has been waived in his reply brief.

[00:19:55] Speaker 05:
But the reason was that he's being argumentative, combative.

[00:20:01] Speaker 05:
I don't remember which officer, but in one of the reports they state that he essentially said he would resist, he would fight.

[00:20:07] Speaker 05:
And another report stated, and these reports are in the Martinez report, stated that he tried to get off the table several times and they had to put him back on the table.

[00:20:18] Speaker 05:
And then if you watched the video after they put him in the chair,

[00:20:21] Speaker 05:
When it comes to putting on the arm and leg restraints, he resists that.

[00:20:26] Speaker 05:
He tells them repeatedly he doesn't want that.

[00:20:28] Speaker 05:
He's got his handcuffs and his restraints on that he thinks that's good enough he didn't want restrained.

[00:20:33] Speaker 05:
And they had to essentially force his arm into position to finish the restraint.

[00:20:39] Speaker 01:
So the restraining into the wheelchair was for a penological interest only, not for medical interest?

[00:20:45] Speaker 05:
Yes.

[00:20:45] Speaker 05:
I would argue that it was for penological interest and it was due to his resistance to being transported to the EMTs.

[00:20:52] Speaker 01:
OK.

[00:20:52] Speaker 01:
Well, let's turn to the second one, which is the administration of the fentanyl and the morphine.

[00:20:59] Speaker 01:
Now, there's a separate issue about who's responsible for doing that.

[00:21:02] Speaker 01:
And obviously, we see the EMTs do it.

[00:21:04] Speaker 01:
But what's the argument for the medical

[00:21:08] Speaker 01:
or a penological interest in giving him those specific drugs under those circumstances?

[00:21:13] Speaker 05:
Well, as Your Honor noted, there's a debate on, or an issue for giving to him, and that does make it a little hard to answer when it was the EMTs who made the ultimate decision to give him the pain medication.

[00:21:24] Speaker 05:
They're not parties, and I can't speak to what their mental decision was.

[00:21:28] Speaker 04:
Well, the EMTs administered the medication.

[00:21:32] Speaker 04:
They're not parties.

[00:21:33] Speaker 05:
Right, that was correct.

[00:21:34] Speaker 05:
They're not parties, so I can't speculate into what their belief was.

[00:21:39] Speaker 05:
But I can say the medical interest, I mean, the EMT did state that he was doing it for the pain.

[00:21:46] Speaker 05:
Well, Mr. Blake, I suppose, appeared to be better at that moment.

[00:21:50] Speaker 05:
He'd be more apt to calm him down a little bit, wouldn't it?

[00:21:54] Speaker 04:
It could calm him down, yes, but... And the fentanyl is not the fentanyl that we see in the court all the time.

[00:22:02] Speaker 04:
It's a synthetic morphine.

[00:22:04] Speaker 05:
You don't do both morphine and fentanyl.

[00:22:13] Speaker 05:
What could calm him down?

[00:22:15] Speaker 05:
Is there a narcotic that does that?

[00:22:17] Speaker 05:
The EMTs specify that they were doing it for the pain, not to calm him down.

[00:22:22] Speaker 05:
And in fact, I think if you watch the video, by the time he gets to the EMTs, he's not as agitated with them.

[00:22:29] Speaker 05:
In fact, you can hear him talk to Nurse Christian, like tell her he's not mad at her.

[00:22:35] Speaker 05:
So I don't think the evidence from watching the video shows that they were doing it to calm him down.

[00:22:41] Speaker 05:
They were doing it because he discussed having chest tightness.

[00:22:45] Speaker 05:
He showed his handshaking.

[00:22:47] Speaker 03:
How do we know that?

[00:22:50] Speaker 03:
That he was complaining about chest tightness?

[00:22:52] Speaker 03:
Was that his complaint?

[00:22:54] Speaker 05:
No, in the video he tells the EMT that he had chest tightness.

[00:23:01] Speaker 05:
He didn't use the word pain.

[00:23:03] Speaker 05:
I believe he said he felt pressure in his chest.

[00:23:15] Speaker 01:
And on that point, I think I recall at some point in the briefing that his counsel argued that even though the EMTs administered the medication, it was the correction officers that essentially encouraged it.

[00:23:27] Speaker 01:
Do you think that's been preserved so that we could, if we're looking at what he's alleged in his complaint about they forcibly medicated him,

[00:23:33] Speaker 01:
to even attach that at all to the corrections officers who are individually named.

[00:23:38] Speaker 05:
No, I don't think that's been preserved.

[00:23:41] Speaker 05:
And I don't think there's anything in the video that shows them talking to the EMTs about that.

[00:23:49] Speaker 05:
But when you mention preservation, I think it's important to note that two of the correctional officers, Gorman and Chastain, the district court found that he failed to leg their personal participation and dismissed his claims against them for failure to stay claim because of that.

[00:24:06] Speaker 05:
As I argued in my brief, Blake does not address that argument.

[00:24:11] Speaker 05:
It's been waived.

[00:24:11] Speaker 05:
But I think there's also, on the merits of the waiver, there's been a development since the correctional officer's briefs and the reply brief.

[00:24:22] Speaker 05:
Blake waives his excessive force killing.

[00:24:24] Speaker 05:
And in the show cause order, the only time he mentions both Gorman and Chastain is to say they forced him into the restraining chair.

[00:24:33] Speaker 05:
So even if the court were to incline to disagree with the district court about whether a claim was actually stated against them, the only claim that could have been stated against them and their personal participation has now been waived by Blake.

[00:24:47] Speaker 05:
And so it's now a moot issue.

[00:24:50] Speaker 03:
When you say there's nothing on the video showing the officers telling the EMTs about plaintiff's condition, they had communications with the EMTs before to get them to come, did they not?

[00:25:06] Speaker 05:
Presumably, I don't know what said or if it was one of the correctional officers who did so or if it was Christian or another person who's not a party.

[00:25:19] Speaker 03:
Is there anything in the complaint that alleges what the officers told the EMTs?

[00:25:27] Speaker 05:
I don't believe there's any, like specifically what they said, but he does allege that, he alleges that collectively the defendants told the EMTs that he was suffering a stroke.

[00:25:39] Speaker 05:
And then I believe at one point in time he specifies that Nurse Christian discussed it with them, but at no point did he say it was the correctional officers

[00:25:48] Speaker 05:
This is what they told me.

[00:25:50] Speaker 05:
You watched the video and it's Gorman who discussed it.

[00:25:54] Speaker 05:
He's the one who found him in a cell and told the UMT what he observed, but that is the extent of any allegations of the Correctional Office of Communication.

[00:26:03] Speaker 01:
It's either... Counsel, can you address Judge Kelly's question to Ms.

[00:26:09] Speaker 01:
Brown about him now being in Maryland?

[00:26:13] Speaker 01:
And I think we just heard it represented that he now currently may be in Illinois, so he's being moved around to different states.

[00:26:20] Speaker 01:
Is he still serving a Kansas State sentence?

[00:26:23] Speaker 05:
He was never serving a Kansas State sentence.

[00:26:25] Speaker 05:
He was sentenced in Maryland.

[00:26:27] Speaker 05:
So why was he at El Dorado?

[00:26:29] Speaker 05:
From his past cases when I was in the unit, when he was incarcerated in Maryland, he

[00:26:38] Speaker 05:
approached the warden or some employees at the prison and essentially offered to mediate any disputes between correctional staff and inmates and some members of I believe he's part of a gang thought he was offering to snitch and So Kansas agreed to take him for his protective purposes.

[00:27:00] Speaker 05:
Kansas agreed to take him and that's why he's been in Kansas

[00:27:03] Speaker 01:
But if we go on to Casper, for example, it will not show him as a Kansas senator that he has a Kansas sentence outstanding?

[00:27:10] Speaker 05:
No.

[00:27:10] Speaker 05:
In fact, when I took this case and I started researching, that was one of the first things I did.

[00:27:16] Speaker 05:
And I couldn't find him and led to a lot of confusion on my part until I could figure out.

[00:27:21] Speaker 05:
Until I found a District of Kansas case stating that he was in Maryland, and that's how I was able to figure out he was no longer here.

[00:27:28] Speaker 05:
I do want to leave some time for my colleague who's representing the nurse to make sure that she can present her arguments.

[00:27:35] Speaker 05:
So if there's no further questions, I would ask this court to affirm.

[00:27:43] Speaker 00:
Thank you.

[00:27:44] Speaker 00:
May it please the court?

[00:27:45] Speaker 00:
Katrina Smelter.

[00:27:46] Speaker 00:
I represent the party's name, just Centurion Health Services and Nurse Christian.

[00:27:51] Speaker 00:
Obviously, I don't have a lot of time, but I do want to hit a couple central points to those parties.

[00:27:56] Speaker 00:
Mr. Blake has actually waived his claims against Centurion Health Services.

[00:28:01] Speaker 00:
So we don't need to consider those claims.

[00:28:04] Speaker 00:
As to the claims against Nurse Christian, I do want to point out that some of the allegations against her were different and distinct from the allegations against correctional officers.

[00:28:13] Speaker 00:
First, there were no allegations against her that she had anything to do with the use of the restraint chair or any kind of force.

[00:28:21] Speaker 00:
Obviously, she made a medical recommendation, and that led to that.

[00:28:25] Speaker 00:
but she was not physically involved with doing that or making the decision.

[00:28:29] Speaker 00:
Secondly, there were some allegations, especially in the briefing for this appeal from Mr. Blake, about allegations of retaliation and that that was a motive for Ms.

[00:28:40] Speaker 00:
Christian to make the decision she did.

[00:28:43] Speaker 00:
However, I do want to point out to this court that if we actually look at the allegations that Mr. Blake made, they are very sparse, they are very skeptical, or speculative, my apologies.

[00:28:54] Speaker 00:
He made allegations as to filing various grievances and lawsuits against correctional officers.

[00:29:00] Speaker 00:
There is no allegation that he filed any kind of a grievance or a lawsuit against Ms.

[00:29:05] Speaker 00:
Christian.

[00:29:07] Speaker 00:
So it is speculative to say that him filing grievances against correctional officers somehow led to her having a retaliation motive to decide the decisions that she did in the medical setting.

[00:29:21] Speaker 00:
I think the district court had the correct ruling here in finding that his complaint was too sparse, it was too speculative.

[00:29:30] Speaker 00:
It did not nudge things into the realm of plausibility, which we know is the standard he must do, especially as to Nurse Christian.

[00:29:38] Speaker 00:
And so we asked this court that it affirmed that decision.

[00:29:41] Speaker 03:
Thank you.

[00:29:47] Speaker 03:
If you have a correction, but 30 seconds is the most you'll get.

[00:29:52] Speaker 02:
Okay, just a couple of very discreet points.

[00:29:57] Speaker 02:
One is Mr. Blake's response to the Martinez report does dispute that he tried to get off the table before being restrained, before the restraints were called for.

[00:30:07] Speaker 02:
And he also points to discrepancies in the defendant correctional officers, different articulations of what was happening, that Gorman says one thing, Wallace says another.

[00:30:18] Speaker 02:
The Martinez report does not have any medical records, but at R99 there is an internal email where nurse Christian says that Mr. Blake was treated with fentanyl for pain.

[00:30:31] Speaker 02:
I think it's with fentanyl may just be treated for pain.

[00:30:35] Speaker 02:
And the video does show the corrections officers explaining to the EMT, when the EMT says, I don't see you experiencing any stroke symptoms.

[00:30:45] Speaker 02:
And the corrections officer say, oh, no, no.

[00:30:47] Speaker 02:
He was doing that before, just before we got here.

[00:30:50] Speaker 02:
So those are my three points.

[00:30:52] Speaker 02:
And respectfully, Mr. Blake requests that you reverse the remand at minimum to allow him an opportunity to amend his complaint and make his articulation of the allegations more plain.

[00:31:09] Speaker 03:
Thank you, Council.

[00:31:10] Speaker 03:
Case is submitted.

[00:31:11] Speaker 03:
Council are excused.