[00:00:08] Speaker 02:
All right, our third case this morning is 23-1343, Rowland versus Montevusium.

[00:00:16] Speaker 02:
And Mr. Lippe, you may proceed when you're ready.

[00:00:23] Speaker 03:
Thank you, Your Honor.

[00:00:24] Speaker 03:
May it please the court, Emil Lippe on behalf of the appellant, Dustin Rowland.

[00:00:29] Speaker 03:
Mr. Rowland, while a pretrial detainee was injured in 2019,

[00:00:36] Speaker 03:
He was diagnosed with an umbilical hernia and surgery recommended in November of 19.

[00:00:44] Speaker 03:
His sentencing was delayed by agreement to allow for the surgery, which did not occur.

[00:00:50] Speaker 03:
And at his sentencing in June of 2020, the Chief Judge of the Northern District of Texas ordered that his medical needs be given immediate attention.

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He was transferred multiple times thereafter.

[00:01:05] Speaker 03:
We filed this action.

[00:01:07] Speaker 03:
He didn't get his hernia surgery until 2022 after the district court ordered that a status report be filed detailing the reasons why he had not gotten his surgery.

[00:01:22] Speaker 03:
The surgery happened shortly thereafter.

[00:01:27] Speaker 03:
Overall, I think one of the key things is the procedural status

[00:01:32] Speaker 03:
that resulted in the two basic orders that are at issue.

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These were a 12b6 motion on the Bivens claim and a motion for summary judgment on exhaustion of administrative remedies.

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This court is fully aware, of course, of how the presumptions and inferences are to be drawn on a 12b6 motion.

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As far as the summary judgment issues were concerned,

[00:02:01] Speaker 03:
We requested discovery, filed a proper affidavit.

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No discovery was allowed.

[00:02:08] Speaker 03:
As far as Bivens is concerned, of course, the Court is aware that the Supreme Court has made it clear that extensions are to be disfavored.

[00:02:22] Speaker 03:
And in Ziegler, the Supreme Court stated that new Bivens claims should be allowed

[00:02:32] Speaker 03:
should not be allowed if there was a new context of the claims and there was a meaningful difference.

[00:02:41] Speaker 03:
First of all, Carlson v. Green remains good law, and that is one of the line of cases that the Supreme Court has recognized continues to exist.

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In Carlson, the Supreme Court held that denial of needed medical care to inmates

[00:03:00] Speaker 03:
was a violation of the Eighth Amendment.

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The only real distinction that the district court could draw between Carlson and this case was that in Carlson the inmate died.

[00:03:15] Speaker 01:
Here, of course, Mr. Rowland survived, but experienced... But he also got, Mr. Rowland also got intermediate care before they did the surgery.

[00:03:29] Speaker 03:
He didn't get immediate care.

[00:03:31] Speaker 03:
He got care three years later.

[00:03:34] Speaker 03:
Two years after the sentencing, the judge said, give him his care.

[00:03:40] Speaker 01:
Wasn't he getting medication?

[00:03:42] Speaker 03:
There was medication.

[00:03:44] Speaker 03:
There was attention.

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He was seen by doctors.

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This court has made it clear.

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I think McCowen versus Morales, 945 F-3rd, 1276,

[00:03:59] Speaker 03:
has observed that a delay in care, and in that case it was a two-hour delay, while the inmate is experiencing excruciating pain, can amount to a constitutional violation.

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Of course, the court's aware the Eighth Amendment doesn't prohibit cruel and unusual punishment that results in death.

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It prohibits cruel and unusual punishment.

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And the case law is abundantly clear that

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Infliction, unnecessary infliction of pain and suffering is a violation.

[00:04:34] Speaker 02:
Why would disagreement about a treatment plan though be cruel and unusual punishment?

[00:04:40] Speaker 03:
He was continuing to experience pain.

[00:04:44] Speaker 03:
He was complaining about it.

[00:04:46] Speaker 03:
They gave him medication and it was inadequate.

[00:04:51] Speaker 02:
Sounds like a malpractice claim.

[00:04:53] Speaker 03:
Well, it depends upon, again, I think that's a matter of

[00:04:58] Speaker 03:
of how you interpret the allegations in a 12b6 context.

[00:05:04] Speaker 03:
The allegation was that he needed the care, that he needed the surgery, that he kept requesting the surgery, and that the treatment that they provided was inadequate.

[00:05:17] Speaker 03:
We've cited multiple cases in our brief, of course, where there was some treatment given, but it was inadequate.

[00:05:27] Speaker 03:
The constitutional right at issue was clearly established.

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There's no question about that.

[00:05:33] Speaker 03:
The rank of the officers is basically the same as it was in Carlson versus Green.

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Since Green, the Supreme Court's made it clear that there can also be special factors that militate against a Bivens claim.

[00:05:48] Speaker 02:
I think the district court found there were special factors that made the Bivens remedy

[00:05:58] Speaker 02:
inapplicable here.

[00:05:59] Speaker 02:
What was the Court's mistake in that analysis?

[00:06:02] Speaker 03:
I think the Court was mainly looking at the fact that there was the Tort Claims Act that Congress had passed.

[00:06:13] Speaker 03:
However, in Carlson v. Green, the Supreme Court said that doesn't preclude Bivens liability.

[00:06:20] Speaker 03:
There's also the Prison Litigation Reform Act, which was passed after

[00:06:27] Speaker 03:
Carlson v. Green.

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However, the PLRA doesn't deal with the constitutional liability.

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This court held in Howard v. Wade, 534 F.

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3rd, 1227, that the PLRA sets forth administrative requirements that are to be followed.

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And I quote, it does not, however, change the constitutional mandates

[00:06:56] Speaker 03:
of the Eighth Amendment, and that the limitations of the grievance procedures cannot override constitutional duties.

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That was this Court's holding in 2007 in the Howard case.

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Therefore, there's no meaningful difference between this case and Carlson v. Green.

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The constitutional liability was clear.

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The inadequacy of the treatment was properly alleged.

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And there are no other special factors that warrant the denial of the claim.

[00:07:43] Speaker 01:
Now, what about the fact that the BOP has this administrative remedy process?

[00:07:50] Speaker 01:
Does that distinguish it from Carlson?

[00:07:54] Speaker 03:
I don't see how it does because this court has held that that doesn't deal with the constitutional obligations.

[00:08:04] Speaker 03:
It sets forth administrative requirements, yes, and those are very clearly set forth.

[00:08:10] Speaker 03:
But then in terms of the individual liability, if you go into the Tort Claims Act, you've got the exceptions to the exception for arresting officers, for example,

[00:08:24] Speaker 03:
But essentially, it does not address liability where there is a violation of constitutional rights.

[00:08:34] Speaker 03:
What happened on the administrative claim?

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This is particularly outrageous.

[00:08:43] Speaker 03:
First of all, keep in mind, this is a prisoner who doesn't have his office, he doesn't have a filing cabinet, doesn't have a copy machine.

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Obviously his filing is difficult.

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He has stated in his declaration that I tried multiple times to get the proper forms.

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I tried to get these filed and there was no cooperation from the prison officials.

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This is in a summary judgment context and that testimony was essentially ignored by the court.

[00:09:18] Speaker 03:
But the crowning blow

[00:09:20] Speaker 03:
was when he made his final appeal under the administrative process.

[00:09:26] Speaker 03:
His appeal was sent back dated November 15th, 2021, a rejection notice.

[00:09:34] Speaker 03:
It's in the record saying, you failed to attach the following.

[00:09:40] Speaker 03:
You've got 15 days to correct it.

[00:09:43] Speaker 03:
The very document has a date stamp

[00:09:47] Speaker 03:
showing it was received in the warden's office on November 30th, 15 days later.

[00:09:53] Speaker 03:
There's a notation on that form that the prisoner received it on December 9th.

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He had 15 days and the time expired almost 30 days before he got the document.

[00:10:08] Speaker 01:
Couldn't you have raised an issue with respect to that?

[00:10:14] Speaker 03:
possibly raised an issue, but it's like filing something after the fact.

[00:10:19] Speaker 03:
And to say that the PLRA requires you to file something that you've been told is already late is absurd.

[00:10:29] Speaker 03:
Respectfully, Your Honor, to file something after your deadline has passed and the fact that you didn't file it after the deadline was passed doesn't mean that you're ignoring the rules.

[00:10:42] Speaker 03:
It means you're saying,

[00:10:44] Speaker 03:
I guess I'm out of luck.

[00:10:46] Speaker 03:
And it wasn't his fault.

[00:10:49] Speaker 03:
And this court has held, again, Howard versus Wade, that you look at the Little versus Jones at 607 at 3rd, 1245, where prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself an administrative remedy, they render that remedy unavailable.

[00:11:13] Speaker 03:
And the court will excuse the failure to follow that.

[00:11:17] Speaker 03:
The court held also, in Hart v. Wade, following a Fifth Circuit case, Johnson v. Johnson, that you don't need to keep complaining about the same problem.

[00:11:28] Speaker 03:
He filed numerous complaints.

[00:11:32] Speaker 03:
The sentencing court was aware of it.

[00:11:33] Speaker 01:
Are they all in the record?

[00:11:34] Speaker 03:
Yes, they are in the record.

[00:11:36] Speaker 03:
And in terms of pursuing the final step to the central office,

[00:11:43] Speaker 03:
That's where this document, where he got it 24 days after the deadline, after the deadline had passed to file his supplement.

[00:11:56] Speaker 03:
And yes, it's true.

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He didn't take that fruitless, unnecessary, forbidden step.

[00:12:04] Speaker 03:
Basically, the situation is that the appellant suffered

[00:12:12] Speaker 03:
considerable pain, excruciating pain.

[00:12:15] Speaker 03:
He repeatedly complained about it.

[00:12:17] Speaker 03:
This was something that the officials were fully aware of.

[00:12:22] Speaker 03:
They kept delaying things.

[00:12:24] Speaker 03:
They had internal administrative manuals that they cited to the district court, which we complained about, and we asked for discovery because we wanted the entire jail file.

[00:12:37] Speaker 03:
We were not given that opportunity, and therefore,

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All that we're left with is the simple fact that he attempted to evade himself of the remedies and was not given a proper response.

[00:12:54] Speaker 03:
With the court's permission, we reserve the remainder of our time.

[00:13:32] Speaker 00:
Good morning, Your Honors.

[00:13:34] Speaker 00:
Janie Lilly representing the Atholese.

[00:13:37] Speaker 00:
Your Honor, plaintiff's claim would hold three individual Bureau of Prisons employees liable for damages for systemic decisions made by a number of administrators, both within the prison and outside of the prison, in making a conservative course of treatment that ultimately resulted in the surgery that plaintiff requested.

[00:14:02] Speaker 00:
In any event, the individual defendants would be entitled to qualify an immunity.

[00:14:08] Speaker 00:
And finally, plaintiff has not exhausted his claims under the Prison Litigation Reform Act or the Federal Tort Claims Act.

[00:14:14] Speaker 00:
If I may talk about the Bivens claims and specifically the new context analysis.

[00:14:20] Speaker 00:
This claim, which challenges and implicates systemic decisions made by the Bureau of Prisons in how to treat and manage a condition like plaintiffs,

[00:14:32] Speaker 00:
is vastly different from the context presented in Carlson versus Green, which targeted individual acts of malfeasance.

[00:14:42] Speaker 00:
Here, the allegations are, of course, that these three individual administrators followed medical guidance, pursued a conservative course of treatment for the umbilical hernia, and ultimately, when deemed appropriate under Bureau of Prisons protocols, and after decisions by the prisons

[00:15:01] Speaker 00:
Utilization Review Committee referred him for outside consultation and ultimately surgery.

[00:15:10] Speaker 00:
Those present vastly different contexts from Carlson versus Green.

[00:15:15] Speaker 00:
In particular, the nature of the judicial intrusion that would be involved in judicial superintending of these types of medical management decisions by the Bureau of Prisons that are wildly different from Carlson versus Green.

[00:15:27] Speaker 00:
the nature of the judicial guidance and the specificity of judicial guidance.

[00:15:32] Speaker 00:
Again, another factor in the new context analysis that the Supreme Court has said a court must undertake before expanding Bivens liability is vastly different here.

[00:15:42] Speaker 00:
As Your Honor has pointed out, and under this court's precedence, the availability of the administrative remedy program, which plaintiff used in this case successfully, is a special factor that would preclude expansion.

[00:15:56] Speaker 00:
of this type of liability.

[00:15:58] Speaker 01:
How do you respond to his claim that he made numerous requests for help and didn't get it for a long period of time?

[00:16:08] Speaker 00:
Your Honor, I have two responses.

[00:16:09] Speaker 00:
First, with respect to the new context analysis for expansion of Bivens liability, the question the Supreme Court has asked this court to look at is whether the administrative remedy program was an available alternative remedy that would prevent courts from intruding into this domain.

[00:16:28] Speaker 00:
And this court has answered very clearly in Silva that that's the type of special factor that would prohibit expansion of liability.

[00:16:34] Speaker 00:
With respect to his claims on exhaustion,

[00:16:38] Speaker 00:
I think as we've explained in our brief, plaintiff did not exhaust at that final stage his claims, his requests for surgery.

[00:16:47] Speaker 00:
He never exhausted claims for post-surgical care or some of the other conditions he mentioned.

[00:16:53] Speaker 00:
His claim was for surgery and he failed to exhaust at that final stage as the district court held while he

[00:17:03] Speaker 00:
complained that he did not have access to the proper forms.

[00:17:06] Speaker 00:
That is belied in the record by his earlier appeals in which he submitted administrative requests on the proper forms.

[00:17:15] Speaker 01:
What about the confusion resulting from the way they handled the administrative complaint?

[00:17:29] Speaker 00:
Your Honor, I think the confusion that plaintiff was pointing to was that raised in his 60B motion.

[00:17:35] Speaker 00:
Initially, he presented an argument to the district court that he could not have complied with the 15-day deadline because he didn't have the warden's written response.

[00:17:46] Speaker 00:
And the district court properly denied that because he could have tried to cure by providing his own complaint that was an additional deficiency.

[00:17:54] Speaker 00:
Is there any policy that covers that?

[00:17:58] Speaker 00:
The Bureau of Prisons administrative remedy program provides for a prisoner who can't comply with a deadline to, through no fault of his own, provides for extensions of those deadlines.

[00:18:11] Speaker 00:
So the Bureau of Prisons can extend deadlines where the prisoner has made a showing that he couldn't comply through no fault of his own.

[00:18:19] Speaker 00:
He often, he or she often would recruit or seek to verify that it wasn't his fault with a BOP staff member.

[00:18:28] Speaker 00:
can't be the case, is that the failure to comply at all somehow satisfies exhaustion.

[00:18:34] Speaker 00:
And this court has made that clear.

[00:18:36] Speaker 01:
You're talking about failure to do anything after the 15 day?

[00:18:41] Speaker 00:
Yes, Your Honor.

[00:18:42] Speaker 01:
Confusing dates that ended up on what he got.

[00:18:46] Speaker 01:
Is there any explanation as to why it took so long?

[00:18:51] Speaker 00:
No, Your Honor.

[00:18:51] Speaker 00:
At this stage in the case development,

[00:18:56] Speaker 00:
there's no explanation precisely because he didn't attempt to comply with the deadline and explain what might have gone wrong.

[00:19:03] Speaker 00:
If he had explained at the time he received the deficiency notice, I don't have the prison warden's response and I need additional time to get that, I can't comply with that portion of the deficiency notice, but here's my complaint, then we might have a record that's precisely.

[00:19:23] Speaker 01:
So I'm talking about his failure to

[00:19:27] Speaker 01:
exhaust his administrative remedies after he gets this confusing piece of paper with, you know, the 15-day thing and the date, the time has already expired.

[00:19:40] Speaker 00:
Right.

[00:19:40] Speaker 00:
And so, as is contemplated by the administrative remedy program, program statement, if he were to get a deadline to which he could not comply,

[00:19:50] Speaker 00:
he could explain that in trying to correct the deficiency notice.

[00:19:54] Speaker 00:
The Administrative Remedy Program and the Prison Litigation Reform Act doesn't contemplate that a prisoner just give up and make no effort to perfect the process.

[00:20:05] Speaker 00:
And indeed, this court has held so in similar circumstances that if he had made some sort of effort to show an attempt to compliance, an extension of the deadline, a request for an additional 15 days,

[00:20:21] Speaker 00:
then he would have perfected his claim.

[00:20:24] Speaker 02:
Could you assume, though, that that would have been futile?

[00:20:27] Speaker 00:
No, Your Honor, precisely for the reasons discussed in the policy, that if a prisoner can't comply with a deadline, for instance, he was ill, incapacitated, or in transit somewhere, that he can request an extension of that deadline and explain why he couldn't comply with it.

[00:20:45] Speaker 00:
And that's very similar to the circumstances here.

[00:20:48] Speaker 00:
In any event,

[00:20:50] Speaker 00:
his claims were moot.

[00:20:55] Speaker 00:
His claim for surgery at this point, which was the only claim presented in the administrative process, is moot because of course now he has received the surgery.

[00:21:06] Speaker 00:
Finally, plaintiff makes no attempt to resuscitate his Federal Tort Claim Act claim.

[00:21:14] Speaker 00:
he did not properly exhaust that claim and therefore that the district court properly dismissed the claim.

[00:21:25] Speaker 00:
If the court has no further questions, then we ask the court to affirm the judgment of the district court.

[00:21:31] Speaker 00:
Thank you, counsel.

[00:21:34] Speaker 02:
Mr. Lippe, you have some rebuttal time still.

[00:21:44] Speaker 03:
It pleased the court.

[00:21:56] Speaker 03:
You just heard about, well, gee, there's all this stuff in the administrative manual, no showing that that manual was ever made available to Mr. Rowland, no showing that he was ever told that he could request extensions.

[00:22:12] Speaker 03:
The actual document that he had

[00:22:14] Speaker 03:
didn't provide, didn't tell him about that.

[00:22:19] Speaker 02:
Hadn't he made previous complaints and hadn't he been through the process several times before?

[00:22:27] Speaker 03:
There had been times when he had not completed the full level of appeals, that's correct.

[00:22:34] Speaker 03:
This was the intent.

[00:22:36] Speaker 02:
Does that suggest that he knew how the process worked?

[00:22:39] Speaker 03:
Well, he had filed

[00:22:42] Speaker 03:
grievances.

[00:22:43] Speaker 03:
He had filed complaints and he had gone to the warden.

[00:22:46] Speaker 03:
He had not taken that last step.

[00:22:48] Speaker 03:
That doesn't indicate that he knew about the administrative procedures.

[00:22:52] Speaker 03:
The district court, I think there's been a misrepresentation of what the district court ruled.

[00:22:58] Speaker 03:
At footnote 11 on page 21 of the district court ruling, it says the BOP administrative remedy program provides an avenue to request and obtain copies of responses

[00:23:11] Speaker 03:
by remedy ID number.

[00:23:14] Speaker 03:
It doesn't quote any section of the administrative manual where he could have requested an extension of time.

[00:23:21] Speaker 03:
And, you know, this was a summary judgment issue.

[00:23:25] Speaker 03:
This was an issue where there should have been an opportunity to flesh out the discovery, to flesh out what he knew, what happened, to look at the complete file.

[00:23:38] Speaker 03:
What we were given in the trial court was their submission of what they said was from the record.

[00:23:47] Speaker 03:
We made a proper request to have permission for discovery, which the trial court ignored and proceeded to summary judgment.

[00:23:58] Speaker 03:
In Aguilar Alveada versus Terrell, from this court at 478 F.

[00:24:02] Speaker 03:
3rd, 1223, a distinction was drawn

[00:24:07] Speaker 03:
between determining failure to exhaust administrative remedies on a 12b6 motion and doing that under summary judgment.

[00:24:18] Speaker 03:
And it was said that only rarely should you make that ruling based upon the allegations of the complaint.

[00:24:26] Speaker 03:
So what did we have?

[00:24:26] Speaker 03:
We had the plaintiff's allegations and we had their evidence and we had no opportunity to conduct discovery into the full extent of the jail file.

[00:24:37] Speaker 03:
There's no indication that he was given a disclosure of all these illusory possible remedies to request an extension of time.

[00:24:49] Speaker 03:
The face of the document that they rely upon shows that he didn't have a sufficient time because the time expired and the time expired through no fault of his own.

[00:25:05] Speaker 03:
erred in granting both the motions to dismiss and the summary judgment.

[00:25:12] Speaker 03:
The intrusion by the judicial process, I think, was dealt with and discussed in this McCowen decision, where there was just a two-hour delay.

[00:25:26] Speaker 03:
Here there was a three-year delay.

[00:25:29] Speaker 02:
Thank you, Counselor.

[00:25:30] Speaker 02:
Your time has expired.

[00:25:31] Speaker 02:
We appreciate it.

[00:25:32] Speaker 02:
Counselor excused and the case is submitted.