[00:00:01] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:04] Speaker 02:
My name is Denis Bogatin, and my co-counsel, Madison Ross, and I are Pepperdine students representing the appellant, Mr. Robin Gilliland.

[00:00:12] Speaker 02:
Before I begin, I would like to reserve five minutes for my colleague's rebuttal.

[00:00:17] Speaker 02:
It looks like we've already we've already done that so you you have you have your ten minutes, so thank you all right In this case the district court granted summary judgment to defendants based on an exceptionally deferential acceptance of their version of events in the face of countervailing evidence appearing in gala lands verified complaint Defendants make a twofold concession first that the district court heard in disregarding that verified complaint

[00:00:41] Speaker 02:
as a sworn affidavit sufficient to oppose summary judgment, and second, that plaintiff's allegation of being suffocated by defendant Eason in an ambulance was sufficiently pleaded to raise a genuine dispute of material fact, that legal error by the district court became a faulty prism through which the court viewed and analyzed each of the claims on appeal, starting with the first claim.

[00:01:04] Speaker 02:
Gilliland presented tribal issues of fact

[00:01:07] Speaker 02:
that defendants asserted penological interests do not justify violating his 14th Amendment rights.

[00:01:13] Speaker 02:
To test the reasonableness of those penological interests, courts balanced the four factors identified in Turner v. Safley, and if there is a tribal issue of fact as to any of them, the court in Jones v. Slate stated,

[00:01:25] Speaker 02:
That course need not consider the remaining factors so just as I understand your position are you?

[00:01:31] Speaker 04:
You're you agree with the defendants that turner is the right prism for evaluating these claims.

[00:01:37] Speaker 04:
Yes, sir Okay, I mean because it's it's a little bit of an odd fit because turner seems to be more about you know prison policies rather than

[00:01:46] Speaker 04:
you know, one-off ad hoc actions by individual prison officers.

[00:01:52] Speaker 04:
But I guess you're agreeing that we should look at it through Turner.

[00:01:56] Speaker 02:
Yes.

[00:01:56] Speaker 02:
I mean, I would point to the Supreme Court's opinion in Washington versus Harper, which said that Turner factors apply to all circumstances in which the need of prison administration implicate constitutional rights.

[00:02:07] Speaker 02:
And so the factors are balancing to determine whether the 14th Amendment rights can be outweighed by the prison interests.

[00:02:14] Speaker ?:
OK.

[00:02:15] Speaker 02:
And so because there are trouble issues of fact as to alternate factors summary judgment would be inappropriate so for example under the first factor viewing the facts in light most favorable to plaintiff a jury may conclude that there was no valid connection between the forced medical treatment.

[00:02:31] Speaker 02:
and the proper justification of medical emergency caused by the fact that Gilliland skipped a few meals.

[00:02:38] Speaker 02:
So defendants claim that there was a life and death emergency when Gilliland began to refuse to eat or drink on January 14th and was found passed out in his cell.

[00:02:50] Speaker 02:
On January 21st, the director's hold notes that he was at imminent risk of death and if no medical intervention would have been supplied then

[00:03:00] Speaker 02:
he would basically die within 24 hours.

[00:03:03] Speaker 02:
But the very premise of that argument, the immediacy of the alleged emergency and the scope of danger is disputed in this case, and the resolution of that dispute must be left to a jury.

[00:03:13] Speaker 05:
Mr. Bogotan, who made the decision to use medical force or to impose medical treatment in the first instance?

[00:03:24] Speaker 05:
Was it Deputy Eason and Deputy Lederer or someone else?

[00:03:28] Speaker 02:
Well, they were the ones who transported Gilliland to the hospital

[00:03:30] Speaker 02:
with respect to the person who made the decision on the 21st, it was whoever wrote the director's hold and authorized transportation to the hospital.

[00:03:40] Speaker 02:
But for purposes of section 1983, the persons responsible are the ones who, the persons liable are the ones who actually personally participated in taking the prisoner to the hospital.

[00:03:52] Speaker 02:
And so under this court's decision in Johnson versus Duffy,

[00:03:57] Speaker 02:
liability attaches if person does an affirmative act or participates in another affirmative, another act, causing the constitutional deprivation.

[00:04:06] Speaker 02:
And so in this case, when defendants Eason and Ladair took Gill into the hospital, they said, affirmatively said the hospital trip in motion and should be liable under section 1983.

[00:04:16] Speaker 05:
And so even if there was a medical director who makes a decision that's unquestionably appropriate, that there needs to be forced treatment,

[00:04:27] Speaker 05:
If a deputy executes essentially the direction of the medical officer.

[00:04:34] Speaker 05:
The deputy who was simply complying is subject to 1983 liability.

[00:04:40] Speaker 02:
Yes, your honor.

[00:04:40] Speaker 02:
There is no following orders defense to Section 1983.

[00:04:43] Speaker 02:
Each person is responsible for their own acts that they perform.

[00:04:47] Speaker 02:
And I would point court's attention to the First Circus decision in Sanchez versus Pereira Castillo.

[00:04:53] Speaker 02:
In that case, while the supervisor authorized transportation of the prisoner to the hospital,

[00:04:57] Speaker 02:
The court found the officers who actually took the prisoner responsible, not the supervisors in that case, because again they were the ones who affirmatively set the hospital trip in motion.

[00:05:08] Speaker 05:
And so the deputies then are duty bound, even if they have no medical training whatsoever.

[00:05:14] Speaker 05:
And even if it is a genuinely life threatening circumstance, the deputies are duty bound to make their own determination as to whether or not forced treatment is necessary.

[00:05:27] Speaker 05:
Yes, I would say so.

[00:05:29] Speaker 04:
There's a question not only of constitutional violation but also of qualified immunity.

[00:05:37] Speaker 04:
So what case clearly establishes the proposition of law underlying the answer you just gave to Judge Blumenfeld?

[00:05:46] Speaker 02:
I would say Reynolds versus Rosendale is the case from this circuit from 1974.

[00:05:51] Speaker 02:
In that case, a medical procedure was conducted and the court noted that prisoners retain their 14th Amendment right to refuse medical treatment unless the case involves a life-threatening emergency or complying with or allowing the prisoner to refuse would endanger the security and safety of the prison.

[00:06:12] Speaker 02:
And so in this case, viewing the facts in light most favorable to Gilliland,

[00:06:16] Speaker 02:
there was no medical emergency in that factual basis.

[00:06:19] Speaker 04:
Right, but if the, if the office, well, I mean, I mean, there's another distinction, which is that there we referred to, I think it was the phrase the court used was major surgical procedures, not diagnostic tests, but setting that aside for a moment.

[00:06:34] Speaker 04:
When the officer is advised by medical personnel that there is a threat to the prisoner's life,

[00:06:44] Speaker 04:
What is the case that clearly establishes that he's supposed to second-guess that?

[00:06:50] Speaker 02:
Well, I would point just not in this context of medical emergencies, but Johnson versus Duffy clarifies that the officers individually are liable for affirmatively setting that trip in motion that will result in non-constitutional violation.

[00:07:05] Speaker 02:
There wouldn't be any liability necessarily for if the officer, for example, thinks that

[00:07:14] Speaker 02:
taking the prisoner to the hospital is warranted, and then the jury assesses that and finds, for example, there was no need to take him to the hospital.

[00:07:22] Speaker 02:
And so in this case, particularly, there is this tribal dispute of fact between those two, and the resolution of that dispute must be left to a jury to assess.

[00:07:30] Speaker 02:
With respect to Ronald's mentioning of a major surgery or some kind of procedure of that sort, this court in Galvan versus Duffy, for example, found the law clearly established in a case of a tooth extraction,

[00:07:44] Speaker 02:
And so there isn't necessarily need for a kind of a major surgery on that point.

[00:07:49] Speaker 04:
I would also point- But Galvin was unpublished, right?

[00:07:52] Speaker 04:
Yes.

[00:07:52] Speaker 04:
Yeah, okay.

[00:07:53] Speaker 04:
So that doesn't clearly establish any principle that applies here, does it?

[00:07:59] Speaker 02:
Yes, but I would say that Ronald's should not be limited to major surgery of that sort.

[00:08:04] Speaker 02:
Any sort of medical treatment would be sufficient for the law to be clearly established under those facts.

[00:08:10] Speaker 02:
And here,

[00:08:12] Speaker 02:
viewed the facts in light most favorable to the plaintiff, the situation is that Gilliland skipped two meals on January 14th, and then he ate dinner, and then skipped the next few meals, and then he was forcefully transported to the hospital against his will.

[00:08:27] Speaker 02:
That is the factual basis on which qualified immunity is assessed, and under those facts, Reynolds is clear that the law is clearly established.

[00:08:35] Speaker 05:
And are all those facts clearly, or were those facts clearly within the knowledge of Deputy Eason?

[00:08:41] Speaker 02:
Of course, yes.

[00:08:42] Speaker 02:
I mean, in the ambulance, for example, Gilliland refused to answer questions.

[00:08:48] Speaker 02:
At various points, he made it clear that he is refusing medical treatment.

[00:08:52] Speaker 05:
No, but I mean, did Deputy Eason know all of the surrounding facts that led to a medical staff determination that hospitalization and forced treatment might be necessary?

[00:09:04] Speaker 02:
Well, he certainly knew from the fact that in the jail locks, for example, it specifies that he was skipping meals and then the emergency services were activated and then he was called to transport him to the hospital.

[00:09:17] Speaker 02:
So it is reasonable to conclude, a reasonable jury may conclude that there was awareness of the fact that he was refusing medical treatment.

[00:09:26] Speaker 02:
And so going back to the Turner factors, viewing the facts in light most favorable to Gilliland, there are tribal issues of fact as to all of them.

[00:09:34] Speaker 02:
which would warrant reversal under those factors.

[00:09:38] Speaker 02:
In the remaining time, moving to the excessive force claim, Gilliland presented tribal issues of fact that defendants Eason and Lidaire used excessive force against him maliciously and sadistically, which was harmful enough to violate the contemporary standards of decency.

[00:09:53] Speaker 02:
And defendants concede that they had the district court consider the evidence in the verified complaint as sufficient to oppose summary judgment.

[00:10:00] Speaker 02:
it would have found tribal issues of fact with respect to essence conduct in the ambulance.

[00:10:05] Speaker 02:
And while that alone requires reversal, the same reasoning should extend to the other claims at hand.

[00:10:10] Speaker 02:
Your Honor, I say that my time is about to expire.

[00:10:12] Speaker 02:
I would just reserve the rest of my time for rebuttal.

[00:10:15] Speaker 04:
So your counsel will have, your co-counsel will have five minutes for rebuttal.

[00:10:19] Speaker 04:
Thank you.

[00:10:19] Speaker 04:
Thank you.

[00:10:28] Speaker 04:
Ms.

[00:10:28] Speaker 04:
Plaza.

[00:10:30] Speaker 01:
Good morning, your honors.

[00:10:32] Speaker 01:
May it please the court and counsel.

[00:10:34] Speaker 01:
My name is Rebecca Plaza, and I am one of the attorneys for the defendant appellees in this matter.

[00:10:39] Speaker 01:
I'd like to clarify that for purposes of appeal, there were a number of individually named defendants in this matter.

[00:10:46] Speaker 01:
The only ones remaining unappealed whose dismissals are being contested are deputies Lederer and Eason and Lieutenant Randall.

[00:10:56] Speaker 01:
The county was never a party to this litigation and is not a party on appeal.

[00:11:00] Speaker 01:
I would like to start out by recognizing as Mr. Bogaton stated for the court that there was a verified complaint.

[00:11:09] Speaker 01:
We do not disagree and that was not considered by the court on summary judgment.

[00:11:14] Speaker 01:
However, we disagree respectfully that the verified complaint impacts anything other than the Eighth Amendment excessive force claim against Deputy Eason in claim one that it does not carry the day as to the reversal or return on remand to the other claims against the other defendants and with regard to Deputy Eason

[00:11:37] Speaker 01:
that the remand would be simply for the allegations that he used excessive force during an ambulance transport to the hospital and claim one, which was on January 16th of 2022.

[00:11:50] Speaker 01:
For purposes of appeal, we believe that both Deputy Easton and Deputy Lederer, for similar reasons, are entitled to qualified immunity.

[00:12:00] Speaker 01:
So I'm focusing primarily on the second prong of the qualified immunity test.

[00:12:04] Speaker 01:
As your honors began to ask questions earlier in the remarks, there was no clearly established law at the time, starting with Deputy Eason, that simply being asked to activate EMS and transport an individual to the hospital at the direction of respected medical providers

[00:12:25] Speaker 01:
that Deputy Eason, in carrying out that transport to the hospital and staying with Mr. Gilliland at the hospital while he received the treatment the medical staff believed was required to medically clear him and return him to the hospital, that is not unconstitutional.

[00:12:42] Speaker 01:
That he had a convicted prisoner outside of a correctional setting, which is inherently dangerous,

[00:12:47] Speaker 01:
in his care and custody, that he used restraints and reasonable use of force, which I don't think is disputed by the parties, that he held Mr. Gilliland down at times to ensure the safety of Mr. Gilliland and others, while medical treatment was performed by hospital staff, that there would have been any case at the time that would have put Deputy Easton on notice that his conduct was unconstitutional.

[00:13:10] Speaker 01:
We believe whether that is analyzed under the Eighth Amendment, which the district court judge did,

[00:13:14] Speaker 01:
or whether it's analyzed now in appeal under a 14th Amendment, right to refuse medical treatment.

[00:13:20] Speaker 01:
Under either theory, there is no clearly established law.

[00:13:23] Speaker 04:
How important is it to your theory that the deputies thought that they were dealing with a medical emergency, where there was potentially a threat to his life?

[00:13:35] Speaker 01:
I don't believe the record suggests that deputy Eason or deputy letter had the requisite capability of.

[00:13:46] Speaker 01:
Substituting their judgment for that of the medical professionals do the only thing in the record before the court is that deputy Eason was asked to act.

[00:13:53] Speaker 01:
activate EMS and once paramedics responded to the prison or the jail excuse me and were unable to treat him within the jail that he was asked to take him to the hospital I Don't know that either deputy Easton or deputy letter or being non-trained medical professionals are required to determine What is and isn't an emergent medical situation they are and lamir versus?

[00:14:19] Speaker 01:
pardon me lamir versus

[00:14:21] Speaker 01:
California Department of Corrections that cited in our materials.

[00:14:24] Speaker 01:
That's a 9th circuit case from 2013 Indicates that the non medical correctional staff can rely on the medical judgment of those present and so Regardless of whether it constituted a medical emergency and what was meant by that neither deputy Easton or deputy letterer would have been in a position to substitute their judgment and criticize the determinations of the medical staff and

[00:14:49] Speaker 01:
Again, the case that council cites to, Galvin v. Duffy, is an unpublished memorandum disposition.

[00:14:59] Speaker 01:
It does not bind this panel.

[00:15:01] Speaker 01:
They also cite Toronto's v. Rosendale.

[00:15:04] Speaker 01:
and to suggest that that defined the constitutional right.

[00:15:09] Speaker 01:
Neither are analogous facts.

[00:15:10] Speaker 01:
I would point out to the court that we are talking about non-medically trained jail deputies.

[00:15:17] Speaker 01:
These cases, including Galvin v. Duffy and Runnels v. Rosendale, the defendants were medical providers.

[00:15:24] Speaker 01:
They were dentists for Galvin v. Duffy, and they were two physicians for Runnels v. Rosendale.

[00:15:30] Speaker 01:
There is no case on point regarding

[00:15:33] Speaker 01:
a corrections deputy who would have been in similar circumstances being directed to take a prisoner to the hospital for medical treatment at the behest of the medical professionals.

[00:15:46] Speaker 01:
There is no case clearly establishing that.

[00:15:48] Speaker 04:
I take the argument on the other side to be that, you know,

[00:15:53] Speaker 04:
What you have here is somebody who, you know, skipped a couple of meals and this all seems like a pretty massive overreaction to that.

[00:16:00] Speaker 04:
And there is, they say, at least a factual question as to whether, you know, it should have been obvious to somebody that this was all wildly disproportionate to what was going on.

[00:16:11] Speaker 04:
So why are they wrong to say that that's basically a factual question for the jury?

[00:16:17] Speaker 01:
I don't believe their argument stands with the with the didn't individually named defendants present in this case.

[00:16:24] Speaker 01:
The public body is not a defendant.

[00:16:26] Speaker 01:
The individuals charged with making those determinations are not defendants.

[00:16:30] Speaker 01:
The only defendants are the corrections deputies who are directed to take him to the hospital.

[00:16:34] Speaker 01:
There is nothing in the record that shows that deputy Eason.

[00:16:39] Speaker 01:
had a choice in going to the hospital with him.

[00:16:42] Speaker 01:
He was directed to do so.

[00:16:43] Speaker 01:
Additionally, I understand there are factual disputes with the record as replete with concerns that he was found passed out in his cell, that he was acting in a way that was concerning

[00:16:56] Speaker 01:
that the great burden the Eighth Amendment places on not just medical but jail providers to ensure that there is timely and adequate access to medical treatment for those in their care and custody is a concern that is taken very seriously.

[00:17:13] Speaker 01:
And the argument that we over

[00:17:15] Speaker 01:
protected this individual when we believed when ultimately the the public body was not a defendant believed that The circumstances required immediate medical care We would be standing here for a totally different reason under an eighth amendment claim if we did not provide that care And he became some seriously ill or died so for those reasons we believe that it is not proper to maintain this claim against the individuals they are maintaining it against and

[00:17:43] Speaker 05:
Miss Plaza, could I have you just pivot for a moment to the claim with respect to Deputy Lederer and that Deputy Lederer and his partner used excessive force in dragging Mr. Gilliland into the hospital.

[00:18:02] Speaker 05:
And there we do have to accept, do we not, the verified allegations of Mr. Gilliland?

[00:18:10] Speaker 01:
Your honor, the only verified allegation that Mr. Gilliland has for claim three involving deputy letterer is that he yanked Mr. Gilliland from the transport vehicle and dragged him into the hospital under an involuntary hold.

[00:18:25] Speaker 01:
The other allegations that, pardon me, that Mr. Gilliland's counsel acknowledged in reply that were present in the opening brief regarding slamming Mr. Gilliland's head

[00:18:35] Speaker 01:
We're not directed at deputy letterers, but a different deputy altogether.

[00:18:39] Speaker 05:
I do understand that, but if you would kindly focus, though, on the allegations that are at issue with respect to the actions, which, as alleged, seem fairly brutal, dragging Mr. Gilliland face down and causing substantial injury to him.

[00:18:59] Speaker 01:
So what I would I would direct the court to to er 40 set 247 which is the It is the involuntary hold it was not required it pardon me it was put into place by the county mental health director and it required the involuntary treatment of Mr.. Gilliland again to the

[00:19:27] Speaker 01:
I'm focusing on qualified immunity on prong to recognizing that the court may find that Mr. Gillen has pled or facts that would constitute potentially a constitutional violation of light most favorable to him.

[00:19:41] Speaker 01:
However, under the qualified immunity analysis, particularly for deputy letterer, he was transporting

[00:19:48] Speaker 01:
and directed to transport Mr. Gilliland to the hospital on January 21st of 2022 under a involuntary commitment hold, which while not expressly stated, does imply that there will be some amount of reasonable force in bringing an involuntary individual into the hospital for treatment.

[00:20:11] Speaker 05:
And I am focusing for purposes of my questions on the execution of the order, not the reason for the order being given.

[00:20:20] Speaker 05:
And reasonable force is the key phrase.

[00:20:24] Speaker 05:
Does Gilliland's complaint suggest that the amount of force was reasonable?

[00:20:32] Speaker 01:
Mr. Gilliland's complaint does

[00:20:40] Speaker 01:
I would are I believe he has alleged under the eighth amendment the deputy letter used excessive force and bringing him in the hospital and also in maintaining.

[00:20:52] Speaker 01:
And also a separate 14th Amendment claim against deputy letter for remaining in the hospital ensuring that he received involuntary treatment.

[00:21:00] Speaker 01:
Again, even if the facts were in dispute, there is no clearly established law.

[00:21:05] Speaker 01:
We are unable to find any case in which a deputy or officer or some type of correctional staff was directed by an involuntary hold issued by a

[00:21:16] Speaker 01:
Under statute, it's not a court order, under statute, a statutory hold directing his involuntary treatment at the hospital that the force used in removing him and bringing him into the building where the treatment was required to be performed, that that was unconstitutional.

[00:21:32] Speaker 05:
And what's the upshot of that?

[00:21:34] Speaker 05:
Does that mean that no matter how much force is used, even if it is extraordinary force dragging someone by their legs face down, I'm not suggesting those are the allegations here, but if that were done, would that be sufficient to avoid qualified immunity because there's no specific case on point?

[00:21:58] Speaker 01:
And then I, understanding that

[00:22:02] Speaker 01:
No, we are not advocating for any force in any circumstances would be constitutional in any setting.

[00:22:13] Speaker 01:
We are arguing that the force, the reasonable amount of force here in this setting was appropriate, was not unconstitutional.

[00:22:19] Speaker 01:
And I would like to clarify that the allegation is that he was held by the armpits and dragged into the building.

[00:22:26] Speaker 01:
So in that set of circumstances,

[00:22:29] Speaker 01:
Again, could there have been other ways in which he could have brought a non-compliant individual in on an involuntary hold?

[00:22:38] Speaker 01:
Perhaps.

[00:22:39] Speaker 01:
But those are not our facts, and the law does not clarify that Deputy Easton was not entitled to use that reasonable amount of force to get him into the hospital for further evaluation.

[00:22:51] Speaker 01:
I'd like to, with the remaining time, and I would say that because it's- Council.

[00:22:58] Speaker 01:
Yes.

[00:22:59] Speaker 03:
Yes, Judge Gould, if I could interject.

[00:23:02] Speaker 03:
I was interested in the issue raised by Judge Blumenthal.

[00:23:09] Speaker 03:
And my question is, on your motion for summary judgment, don't we have to give all reasonable inferences?

[00:23:21] Speaker 03:
to the plaintiff.

[00:23:26] Speaker 01:
Yes, Your Honor, the standard is in the light most favorable to the non-moving party, which in this case was Mr. Gilliland.

[00:23:34] Speaker 01:
However, I assume taking his factual allegations in the light most favorable to him, which are not that he slammed his head into the car, which was attributed to a different deputy, the fact that he instead removed him from the vehicle

[00:23:50] Speaker 01:
Dragged him into the hospital by his armpits that that was the alleged force that that force in these circumstances Looking at prong to the qualified immunity analysis there was no clearly established law at the time that

[00:24:07] Speaker 01:
put deputy letter on notice that he was required to transport Mr. Gilliland into the hospital on the involuntary hold by some other manner.

[00:24:17] Speaker 01:
And that is, your honor.

[00:24:19] Speaker 03:
Do you counsel, do you have any authority saying that the establishing of what's established law can be, can require

[00:24:37] Speaker 03:
such a particular distinction as you're making here.

[00:24:43] Speaker 03:
I'm asking because it seems to me it's, normally it would be a reasonable inference that if a person is dragged, they dragged it into a hospital rather than carry.

[00:24:59] Speaker 03:
Carried it could cause harm and so the dragging

[00:25:06] Speaker 03:
It seems spatially like excessive force.

[00:25:13] Speaker 01:
And I would generally be relying on Escondido versus Emmons, which is the United States Supreme Court case, which indicated that defining clearly established law at too high a level of generality instead of evaluating the specific circumstances of the case can be problematic.

[00:25:33] Speaker 01:
We don't have any cases on point.

[00:25:35] Speaker 01:
None of the cases that Mr. Gilliland cited in his brief even get close to any sets of circumstance.

[00:25:42] Speaker 01:
They are very focused on the excessive force allegations regarding slamming his head, which, as the record bears out, is not actually an allegation alleged against deputy letterer.

[00:25:53] Speaker 01:
And I see my time is up.

[00:25:54] Speaker 01:
I would like to thank the court and counsel.

[00:25:57] Speaker 04:
Any further questions?

[00:25:59] Speaker 04:
All right, thank you.

[00:26:09] Speaker 00:
Ross morning your honors my name is Madison Ross appearing on behalf of appellant mr. Gilliland I have two main points I would like to address on rebuttal specifically involving the fourth amendment 14th amendment right to refuse medical treatment and the eighth amendment excessive force claim against deputy Ladera

[00:26:28] Speaker 00:
First, I'd like to respond to counsel's argument that recognizing Mr. Gillen's right to refuse medical treatment would give rise to an Eighth Amendment delivered indifference claim.

[00:26:39] Speaker 00:
Courts have consistently rejected the false choice between these two constitutional principles and held that when an inmate knowingly and affirmatively refuses treatment, then that refusal forecloses rather than creates an Eighth Amendment delivered indifference claim.

[00:26:53] Speaker 00:
For example, in the case McCain v. Department of Corrections, this court held there was no deliberate indifference where a disabled inmate brought a claim that he was denied a wheelchair because the court found he repeatedly refused treatment, including refusing to attend appointments to assess his wheelchair needs.

[00:27:10] Speaker 00:
Similarly, in the case Jones v. Smith, the Second Circuit held that an inmate who refused physical therapy for a back injury failed to state a claim under the Eighth Amendment for deliberate indifference.

[00:27:21] Speaker 00:
Here, like the inmates in McCain and Jones, Mr. Gilliland repeatedly and unmistakably refused care, both verbally and physically.

[00:27:28] Speaker 00:
On the 16th, he said no when asked to wear a hospital mask.

[00:27:34] Speaker 00:
He shook his head indicating no.

[00:27:36] Speaker 00:
He refused to exit the patrol vehicle, declined testing.

[00:27:40] Speaker 00:
And at 2ER 279, we have a medical report from Lebanon Community Hospital, the first hospital he was taken to.

[00:27:46] Speaker 00:
which said, patient refuses to answer screening questions and repeatedly states to deputy that he refuses all care.

[00:27:53] Speaker 05:
Ms.

[00:27:54] Speaker 05:
Ross, isn't the problem here that to the extent that there was a wrongful decision to require care, the decision maker is not before us.

[00:28:08] Speaker 05:
Rather, a deputy who is being asked to execute the requirement, who has no medical training,

[00:28:16] Speaker 05:
and no ability, reasonably, to assess and make the type of balancing that would be required, that person is not before us.

[00:28:30] Speaker 00:
Yes, your honor, I would like to reiterate what my co council said that there's no just following orders defense in the Constitution.

[00:28:37] Speaker 00:
Under the case Sanchez, the court rejected arguments that would insulate individuals from liability simply because they were acting under the direction or encouragement of others, emphasizing that each actor's conduct must be evaluated for its causal role in the constitutional violation.

[00:28:53] Speaker 00:
Each actor must independently assess the constitutionality of their

[00:28:56] Speaker 05:
I understand the point, but isn't it reasonable for a deputy who has no training, who is being told that medically necessary treatment is required, that it is an urgent circumstance, and sees someone who is not complying, and in his mind it is necessary for there to be compliance and treatment,

[00:29:23] Speaker 05:
to impose a certain level of force necessary to make sure the treatment is carried out.

[00:29:30] Speaker 00:
Potentially, Your Honor, but this hinges on the fact that whether or not the deputies believed this force must have been effectuated, they believed there is a medical emergency, is a dispute in this case requiring reversal because there is a tribal issue of fact.

[00:29:45] Speaker 04:
Can I ask you to turn to the claim again?

[00:29:48] Speaker 04:
I guess this is claim three against deputy letterer relating to the dragging into the hospital.

[00:29:55] Speaker 04:
So we have a declaration from deputy letterer and then we have the verified complaint and we're on summary judgment.

[00:30:03] Speaker 04:
And so because the complaint is verified, we can look at that.

[00:30:07] Speaker 04:
And I guess my question is when you read what he actually says about deputy letterer

[00:30:12] Speaker 04:
It is very brief and rather conclusory.

[00:30:18] Speaker 04:
And so my question is, why is that enough to create a genuine dispute of fact as to whether there was actually excessive force used?

[00:30:27] Speaker 00:
Your honor, we would respectfully disagree that the language is conclusory in the complaint.

[00:30:32] Speaker 00:
It states that Deputy Ladera grabbed his left shoulder slash arm and he was drugged face down into Good Samaritan Hospital, ripping his left armpit with him stating, if you want the pain to stop, then walk.

[00:30:43] Speaker 00:
That is a firsthand account with personal knowledge, efficient details in order to sustain a claim against him for the dragging.

[00:30:51] Speaker 00:
And honor related.

[00:30:53] Speaker 04:
And so you think that

[00:30:55] Speaker 04:
Mean I are not sure what do you understand the face down part of that to mean?

[00:31:00] Speaker 04:
that his face was in contact with the ground because it I Understand how you could grab someone by the shoulder unless you yourself were like almost on the ground So what's what's your understanding of what he's alleging there?

[00:31:14] Speaker ?:
I?

[00:31:14] Speaker 00:
I believe the record is somewhat unclear, but from my understanding, his legs were dragging and he was facing the ground.

[00:31:21] Speaker 00:
I don't believe that his face was actually making any contact with the pavement.

[00:31:25] Speaker 04:
And so is it your view that holding someone by the armpit and moving them such that their feet are dragging on the ground is just per se excessive force?

[00:31:37] Speaker 00:
Not per se excessive force, Your Honor, but it is excessive force in this case because the Hudson factors hinge on proportionality.

[00:31:44] Speaker 00:
The case Belle v Williams is instructive here.

[00:31:47] Speaker 00:
There they had a disabled inmate who was amputated from the lake down, and they had to move him from one jail cell to another.

[00:31:55] Speaker 00:
The officer carried him over his head in a way where he suffered a similar injury to his armpit, to his shoulder.

[00:32:02] Speaker 00:
And the court found that that was clearly excessive based on what was warranted to move him.

[00:32:06] Speaker 00:
because they could have used a wheelchair.

[00:32:09] Speaker 00:
Here there's no better place to find a wheelchair than directly in front of a hospital and that would have been a less intrusive way, less excessive way to transfer Gill and into the hospital.

[00:32:18] Speaker 04:
And you said causing a similar injury to his shoulder but is there any allegation that this resulted in any injury to his shoulder or even that it was painful to his shoulder?

[00:32:28] Speaker 00:
I believe my time may be up.

[00:32:30] Speaker 00:
You can answer the question.

[00:32:32] Speaker 00:
There is evidence that he did suffer bruising and

[00:32:35] Speaker 00:
He alleges that his armpit was ripped.

[00:32:38] Speaker 00:
We have medical grievances from him stating that he was still suffering pain within his shoulder for several months afterwards.

[00:32:46] Speaker 00:
And he did show the bruising to his criminal defense attorney, Tyler Reed.

[00:32:50] Speaker 00:
And we see that in claim four in his verified complaint.

[00:32:53] Speaker 00:
So there is evidence that he suffered injury.

[00:32:56] Speaker 00:
And the standard is that injury need only be more than de minimis.

[00:33:02] Speaker 00:
Thank you, barring any further questions, we respectfully ask this court to reverse and remit.

[00:33:06] Speaker 04:
We thank both counsels.

[00:33:08] Speaker 04:
Oh, I'm sorry, Judge Gould, please.

[00:33:10] Speaker 03:
I have one question.

[00:33:15] Speaker 03:
A number of hospitals I've been familiar with at the entranceway to the hospital have lots of wheelchairs so people can be taken in by wheelchair.

[00:33:32] Speaker 03:
In this case, were the officials, Mr. Officer Letter and anyone else able to lift your client?

[00:33:53] Speaker 03:
into the wheelchair?

[00:33:57] Speaker 03:
And does the record show us anything about availability of wheelchairs at the hospital?

[00:34:08] Speaker 00:
To the last point we do not have anything in the record that Suggest there was availability, but I believe it would be a reasonable inference that there would be a wheelchair that could be available and While we view the evidence in the light most favorable to Gilliland and accept his allegations if we look at Ladera's declaration He states that he carried Gilliland Into the hospital in a way where Gilliland's knees were at a 90-degree angle so yes, he if we were to accept his allegations then

[00:34:36] Speaker 00:
he would have the sufficient strength in order to lift Gilland into a wheelchair.

[00:34:43] Speaker 05:
If I may just follow up.

[00:34:47] Speaker 05:
You would acknowledge, would you not, Ms.

[00:34:49] Speaker 05:
Ross, that the panel should consider all of the surrounding circumstances, including some of the circumstances that we're to some extent speculating about at this point, correct?

[00:35:01] Speaker 05:
I'm sorry, could you clarify what you mean by... So in other words, we should consider all of the surrounding circumstances, not simply the act itself of moving your client from point A to point B. We're talking now about alternatives that might have been required, and you're saying we should consider those, correct?

[00:35:23] Speaker 00:
Yes.

[00:35:24] Speaker 05:
We should also consider the surrounding circumstances, including the fact that Deputy Lederer was in an emergency bay, as I understand it, and there was another ambulance that was, or an ambulance that was coming up, and he had to make a fairly quick decision about transporting your client into the hospital.

[00:35:45] Speaker 05:
Am I recalling the record correctly?

[00:35:48] Speaker 00:
You are, Your Honor.

[00:35:49] Speaker 00:
And we agree that there may have been some time constraints there, which necessitated getting Gillen into the hospital in a rather quick manner.

[00:35:57] Speaker 00:
However, that would only affect the second Hudson factor, which says that the need for the force, the reason that the force needed to be effectuated.

[00:36:05] Speaker 00:
However, the Hudson factors hinge on proportionality.

[00:36:07] Speaker 00:
So we understand there was a time constraint, but that does not mean that in the process they had to inflict force on Mr. Gillen when they had available and readily available options.

[00:36:18] Speaker 04:
Thank you.

[00:36:19] Speaker 00:
Thank you, Your Honor.

[00:36:19] Speaker 00:
We respectfully ask this court to reverse her amendment.

[00:36:23] Speaker 04:
Thank you, Ms.

[00:36:23] Speaker 04:
Ross and Mr. Bogaton.

[00:36:24] Speaker 04:
You're representing your client pro bono, and the court thanks you for your service.

[00:36:29] Speaker 04:
We thank all counsel for their helpful arguments.

[00:36:31] Speaker 04:
The case is submitted, and we are adjourned.