[00:00:04] Speaker 04:
The next case on our docket is Briscoe.

[00:00:10] Speaker 03:
Thank you, Your Honor.

[00:00:12] Speaker 03:
William Evans for Antoine Briscoe.

[00:00:13] Speaker 03:
I'd like to reserve two minutes of time, and I'll keep my eye on the clock.

[00:00:20] Speaker 03:
Particularly given the liberal standards that apply to pro se plaintiffs, the District Court's screening dismissal of the ADA claim and its grant of summary judgment against the Eighth Amendment claim were both wrong and should be reversed.

[00:00:34] Speaker 03:
On the ADA claim, there are three important points.

[00:00:37] Speaker 03:
First, this Court has long held that Title II covers virtually any prison service or program, so Mr. Briscoe's allegations that he was denied safe and accessible transportation satisfy the program or service element.

[00:00:51] Speaker 03:
Second, under equally subtle precedent, Mr. Briscoe's allegations that defendants denied him a reasonable accommodation request without any investigation.

[00:01:00] Speaker 03:
in fact, with profanity and force, satisfies the because of and deliberate indifference elements of the claim.

[00:01:07] Speaker 03:
Third, Mr. Briscoe did not need to allege a policy at the prison violating the ADA for his claim.

[00:01:13] Speaker 03:
Duval makes clear that respondent superior liability applies to the prison.

[00:01:18] Speaker 03:
But even if it were required, Mr. Briscoe's allegations of an unwritten policy at the prison violating the statute, combined with detailed allegations of conduct by multiple prison officials consistent with such a policy, is enough to at least require that the claim be answered.

[00:01:34] Speaker 03:
On the Eighth Amendment claim, I'd like to make two points.

[00:01:37] Speaker 03:
First, the District Court found disputes of fact on both the objective and the subjective prongs of the claim that's at year eight to nine, and that should have required denying summary judgment.

[00:01:48] Speaker 03:
and the District Court's findings were compelled by this Court's precedent.

[00:01:52] Speaker 03:
Viewing the record in the light most favorable to Mr. Briscoe, a jury could find that Villa Cana was aware that basic steps could have better guaranteed Mr. Briscoe's safety, but he knowingly refused to take those steps.

[00:02:06] Speaker 01:
Council, I want to make sure that I understand on one point your argument correctly, and that is that the

[00:02:17] Speaker 01:
dropped, thrown part is essentially to you irrelevant, that even if your client had averred that he was dropped or accidentally dropped as opposed to thrown, you'd still, you still, your client still should have been allowed to proceed based on the other facts.

[00:02:42] Speaker 01:
Am I reading that?

[00:02:43] Speaker 01:
You're briefed correctly.

[00:02:45] Speaker 03:
That's correct.

[00:02:46] Speaker 03:
And I think that flows from the Wilk case, for example.

[00:02:50] Speaker 03:
I'd look at Wilk at 1150, which says that even a failure attack can be enough for this kind of deliberate indifference claim.

[00:02:58] Speaker 03:
And if you look, for example, at Fost, too, the idea there was that prison officials were aware that the plaintiff who had mobility issues needed accommodations in the form of rails in the shower facilities that he would otherwise be exposed to danger.

[00:03:13] Speaker 03:
And they did nothing.

[00:03:14] Speaker 03:
So an affirmative act of that kind, an intentional force, isn't required.

[00:03:18] Speaker 03:
What's necessary is knowledge of a significant risk of serious harm and deliberate indifference to that risk.

[00:03:25] Speaker 03:
So the fact that the proximate cause of the harm was accidental isn't material to the claim.

[00:03:30] Speaker 03:
It may make the facts worse.

[00:03:32] Speaker 03:
if it were an intentional threat.

[00:03:34] Speaker 01:
But you've also argued that if I'm remembering your brief correctly, that if there is any type of quote unquote ambiguity in the claim, the word thrown is certainly in there and in the light most favorable to your client, we should read it as thrown.

[00:03:51] Speaker 03:
Absolutely, Your Honor.

[00:03:54] Speaker 02:
Is there any, I mean, the Eighth Amendment claim was decided on summary judgment.

[00:03:59] Speaker 02:
So is there any evidence that

[00:04:01] Speaker 02:
the officers through him as opposed to negligently dropping him?

[00:04:07] Speaker 03:
There's no evidence other than the declarations from both sides in this case, which are, as you know, they're starkly opposed.

[00:04:15] Speaker 03:
If you look at SCR 228-33, that's Bill Connors declaration and statement of facts, and it tells a starkly different story, which I think

[00:04:26] Speaker 03:
just emphasizes the fact that at summary judgment, there's a material dispute of fact about what happened here.

[00:04:31] Speaker 03:
I mean, Villacana said that there was no incident whatsoever.

[00:04:34] Speaker 03:
There was no injury that occurred.

[00:04:36] Speaker 03:
That's hard to believe in light of the medical records that are in there that Mr. Briscoe submitted at summary judgment and that are before the court.

[00:04:44] Speaker 03:
But at the very least, there's a material dispute of fact about what happened.

[00:04:47] Speaker 02:
But Mr. Briscoe never unequivocally says that he was thrown, right?

[00:04:52] Speaker 02:
If he says either thrown or dropped.

[00:04:55] Speaker 03:
He says he says thrown or dropped.

[00:04:57] Speaker 03:
I don't think that there's I mean, even if the question is whether or not that's intentional or accidental conduct, I actually think that being thrown or dropped is both consistent with intentional conduct to the to the to the if one thought that that were material to the claim.

[00:05:12] Speaker 03:
But again, I don't think that that an intentional forcible act is necessary for the claim to succeed.

[00:05:19] Speaker 02:
If it was accidental, I mean, wouldn't it be more negligence than deliberate indifference?

[00:05:25] Speaker 02:
It seems like these two officers, they knew they were violating the policy, but they thought we can transport him.

[00:05:32] Speaker 02:
We can lift him up together, put him in the car.

[00:05:34] Speaker 02:
Yes, we should do, we know better, but we think we can do this.

[00:05:37] Speaker 02:
And in fact, they did do this correctly or at least safely four out of the five times he was shuttled back and forth.

[00:05:43] Speaker 02:
Unfortunately, they didn't.

[00:05:46] Speaker 02:
They dropped him and he got injured.

[00:05:49] Speaker 02:
Doesn't that suggest negligence as opposed to deliberate indifference?

[00:05:54] Speaker 03:
I don't think so because, again, the focus of the claim here is on being aware of the risk of not using the wheelchair lift and, nevertheless, deliberately going straight into that risk.

[00:06:06] Speaker 03:
So the fact that the injury then manifests because of an accident rather than adding on to the risk by intentionally throwing him doesn't, I think, preclude the Eighth Amendment claim.

[00:06:15] Speaker 03:
Again, think about the scenario in Frost.

[00:06:18] Speaker 03:
The prison officials there didn't do anything.

[00:06:20] Speaker 03:
and there was still a viable Eighth Amendment claim.

[00:06:22] Speaker 03:
The fact that they did not take the precautions necessary to ensure that he wouldn't slip is enough for an Eighth Amendment claim.

[00:06:29] Speaker 03:
So clearly, the difference between accidentally dropping him and throwing him, I don't think that that's actually material to the basics of the claim.

[00:06:39] Speaker 04:
Council, if I may interject a quick question.

[00:06:43] Speaker 04:
Council, as I understand your argument, you were saying that

[00:06:49] Speaker 04:
whether they dropped him or threw him, they're at least reckless in not giving him the proper equipment, not using the proper equipment to move him.

[00:07:08] Speaker 03:
That's absolutely right, Judge Gold.

[00:07:10] Speaker 03:
And again, I mean, thinking of it temporally, I think where the focus of the claim is before the dropping or the throwing occurs, it's the fact that they were told

[00:07:19] Speaker 03:
that they needed to use an accessible van as the prison policy requires.

[00:07:24] Speaker 03:
They were told multiple times by Mr. Briscoe, and they responded by cursing him out and dragging him out of.

[00:07:30] Speaker 01:
Well, you've also added, I mean, your client also alleged not just that they knew he was in a wheelchair, somebody can be in a wheelchair for many reasons, but that, as I read it, your client averred that he told them he was in a wheelchair because he had a spinal cord injury.

[00:07:50] Speaker 03:
That's right.

[00:07:50] Speaker 03:
And if you look at FPR 33, for example, there are medical records verifying that allegation says that he is incomplete paraplegia and he is unable to ambulate.

[00:08:00] Speaker 03:
So it isn't simply an allegation.

[00:08:03] Speaker 03:
There is documentary evidence supporting that aspect of the claim.

[00:08:09] Speaker 03:
And again, I think the focus is knowing the serious risk of harm that would come from not using accessible transportation and going straight into the risk.

[00:08:18] Speaker 03:
And whether or not the risk ends up manifesting because of an accident or because of intentional conduct may go to the amount of damages.

[00:08:26] Speaker 03:
It may go to how egregious the conduct is.

[00:08:27] Speaker 03:
But for the threshold Eighth Amendment standard, I don't think that it's material.

[00:08:32] Speaker 02:
You're referring more to the objective basis of, well, they should have known the risk, but you also have to show they subjectively were reckless.

[00:08:40] Speaker 02:
And here, I mean, you can think these two officers, they're not medical professionals.

[00:08:45] Speaker 02:
They may, I don't know if they're big guys or not.

[00:08:47] Speaker 02:
They think, look,

[00:08:48] Speaker 02:
we're two big guys.

[00:08:49] Speaker 02:
We can lift them up carefully, put them in the car, put the seatbelt on, and we can do this.

[00:08:56] Speaker 02:
You know, we're big guys.

[00:08:57] Speaker 02:
This isn't too tough.

[00:08:59] Speaker 02:
Obviously, they were wrong.

[00:09:01] Speaker 02:
But, you know, that doesn't suggest, again, more negligence.

[00:09:06] Speaker 02:
Subjectively, you know, reckless and thinking that mistake.

[00:09:10] Speaker 03:
If the record viewed in light most favorable to

[00:09:12] Speaker 03:
that that was their response, then it may be a closer case.

[00:09:18] Speaker 03:
But in fact, the record shows that there was a policy directly on point directing them to use accessible transportation.

[00:09:25] Speaker 03:
They were asked several times and told by Mr Briscoe that he was afraid of injury, and they responded with profanity and dragging him out of the wheelchair without even a moment's reflection about whether or not it might be possible to accommodate him.

[00:09:38] Speaker 03:
And I think under this Court's cases, there's a lot of evidence

[00:09:41] Speaker 03:
That is a classic deliberate indifference plane.

[00:09:46] Speaker 03:
I see that I have about a half minute left.

[00:09:48] Speaker 03:
I'm happy to continue asking questions, but otherwise I would reserve the time for rebuttal.

[00:09:56] Speaker 04:
Okay.

[00:10:21] Speaker 00:
Good morning, Your Honor.

[00:10:23] Speaker 00:
This is Dan Torrens.

[00:10:24] Speaker 00:
I'm ready to proceed.

[00:10:26] Speaker 00:
May it please the court, I represent defendants, appellants, appellees, shin and via Kana.

[00:10:36] Speaker 00:
We submit that the trial court granted summary judgment in this case and dismissed Mr. Briscoe's claims under both the Americans with Disabilities Act and with the Eighth Amendment.

[00:10:49] Speaker 00:
As the court is aware, this is a case where Mr. Briscoe alleges that as a result of a failure to provide an accommodation that he was injured.

[00:11:02] Speaker 00:
First off, I would like to point out one of counsel's arguments

[00:11:06] Speaker 00:
in our argument today was with respect to interpretations under Duvall case.

[00:11:12] Speaker 00:
A careful reading of the briefing in this case, Your Honors, will show that Duvall's for the first time presented with arguments of respondent superior liability that did not appear in the answering brief.

[00:11:27] Speaker 00:
And those types of arguments are impermissible to be presented in the reply brief.

[00:11:33] Speaker 00:
In addition, the arguments provided by Mr. Briscoe with respect to Duval essentially misstates some of Duval's holdings.

[00:11:43] Speaker 00:
Duval did hold that ADA claims can't be brought against municipalities and institutions in several different ways, but the briefing provided by Mr. Briscoe here is misleading because the specific claim essentially has two separate legs.

[00:12:03] Speaker 00:
One is that the person citing the discrimination was discriminated against based on the nature of his disability status.

[00:12:12] Speaker 00:
And two, that resulting denial of a program or benefit directly led to injuries that are sustained.

[00:12:20] Speaker 00:
So what they're essentially arguing is trying to combine these two elements when trying to put forth this argument that the simple denial of a request was a

[00:12:33] Speaker 00:
denial of the policy.

[00:12:35] Speaker 00:
It's not.

[00:12:35] Speaker 00:
What we're simply dealing here is with the denial of an accommodation.

[00:12:40] Speaker 00:
And as some of the court's questions were direct about in this case, there's no evidence in this case to support a direct need for the correctional officers here to

[00:12:55] Speaker 00:
you know, providing a wheelchair access vehicle.

[00:12:58] Speaker 00:
Yes, as the district court found, there was a policy in place, but the evidence that's on record here indicates that a wheelchair access vehicle was not available at the time.

[00:13:14] Speaker 00:
So it's just too simply broad a step.

[00:13:17] Speaker 04:
Council, I have a question for you.

[00:13:20] Speaker 04:
Yes, Your Honor.

[00:13:20] Speaker 04:
You're saying a wheelchair access vehicle wasn't available.

[00:13:24] Speaker 00:
Yes, Your Honor, that's the evidence in the record.

[00:13:27] Speaker 04:
Does the record show whether the prison had the capability to rent a wheelchair access vehicle?

[00:13:40] Speaker 00:
Your Honor, the record does not indicate that, but certainly I think if we're

[00:13:48] Speaker 00:
If we're giving every benefit to Mr. Briscoe as we are at the briefing stage, that that that common sense would dictate that something would have been possible.

[00:13:59] Speaker 00:
But the issue here isn't whether something was possible, but whether the correctional correctional officers in this case showed a deliberate indifference with the deliberate indifference being that they were

[00:14:14] Speaker 00:
knowledgeable that there was a substantial risk of serious harm to Mr. Briscoe.

[00:14:24] Speaker 01:
Do you concede that if there were admissible evidence

[00:14:32] Speaker 01:
that the correction officers deliberately threw Mr. Briscoe that on the eighth amendment claim that would that would get him past summary judgment.

[00:14:48] Speaker 00:
Under the hypothetical that you posed here your honor my answer would I'm compelled to answer yes.

[00:14:54] Speaker 01:
Okay so then let me let me ask you a question.

[00:14:58] Speaker 01:
Rule eight

[00:14:59] Speaker 01:
of the federal rules of civil procedure allows claims to be asserted in the alternative and certainly Mr. Briscoe is pro se with regard to in a variety of places where he avers what happens he says thrown or dropped

[00:15:23] Speaker 01:
Rule eight allows claims to be asserted in the alternative.

[00:15:31] Speaker 01:
And if a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

[00:15:38] Speaker 01:
And then he averred that.

[00:15:40] Speaker 01:
And so part of the difference between dropped and thrown might be someone's cienter that only they're aware of.

[00:15:49] Speaker 01:
Why isn't it enough that he continually used the word thrown, but allowed for the possibility that it might have been dropped?

[00:15:58] Speaker 01:
Why doesn't that get him past summary judgment, given that alternative means of asserting a claim are specifically allowed by the rules?

[00:16:07] Speaker 00:
Your Honor, I believe that the district court judge

[00:16:16] Speaker 00:
internal inconsistencies with respect to the record.

[00:16:23] Speaker 01:
How does internal consistency help you at summary judgment?

[00:16:27] Speaker 01:
This is not a case where somebody is deposed, gives an answer in a deposition, and then later tries to avoid summary judgment by later doing a declaration that's inconsistent with his deposition.

[00:16:42] Speaker 01:
that's called, I think, the sham affidavit rule.

[00:16:46] Speaker 01:
But why would that be applicable here where we're not looking at a deposition later contradicted by a statement under oath?

[00:16:57] Speaker 00:
And again, I think the district court addressed this point in her ruling where she references that internal inconsistencies and a party's own testimony can create issues of material fact.

[00:17:11] Speaker 00:
between two conflicting versions of a material fact does not defeat the standard for summary judgment.

[00:17:18] Speaker 00:
So even given counsel's argument that Mr. Briscoe, as a prisoner in this case, is allowed broad latitude with respect to his allegations of facts, it's not carte blanche.

[00:17:31] Speaker 01:
But, counsel, couldn't the difference between thrown and dropped depend on the state of mind of the actor?

[00:17:42] Speaker 01:
Well, yes, Your Honor, and I think that's one of the issues here with respect to... And, you know, back in the days when I used to try cases, I have a recollection of jury instructions that told the jury, you often don't have direct evidence of a person's intent, and that's why you have to look at all the surrounding circumstances, et cetera, for you to determine, as a matter of fact, what the person's intent was when they acted.

[00:18:06] Speaker 01:
And isn't this just a variant of that?

[00:18:10] Speaker 01:
They were told about the spinal cord injury.

[00:18:13] Speaker 01:
They swore at him.

[00:18:14] Speaker 01:
They said, we're at the end of the shift.

[00:18:16] Speaker 01:
We don't want to stay on overtime.

[00:18:18] Speaker 01:
And then they did an act, which, depending on their intent, could have been thrown or dropped.

[00:18:23] Speaker 01:
And why wouldn't that be up to the trier of fact?

[00:18:25] Speaker 01:
Why isn't this sufficient to get past summary judgment on thrown?

[00:18:31] Speaker 00:
Well, because on its face, Your Honor, and what we haven't talked about yet is the original allegations

[00:18:42] Speaker 00:
relating to you know whether this is what we're talking about really here is negligence and this is not a negligence case you know these or with respect to the ADA or eighth amendment there are fairly high standards here we haven't talked about the farmer case but in a meeting of the farmer case what we're really talking about is that we're really approaching the threshold of whether a a

[00:19:11] Speaker 00:
Defendant Correctional Officer in a case like this is leading up to some sort of criminal type culpability.

[00:19:18] Speaker 00:
And that's not really here.

[00:19:20] Speaker 00:
And I want to just address that subjective element briefly, because it hasn't been addressed yet.

[00:19:27] Speaker 00:
But in the record that we have with the materials provided by Defendant Villacana, as it has been accurately stated, there wasn't an incident

[00:19:38] Speaker 00:
that occurred, but that's not the summary judgment element that we're talking about here.

[00:19:42] Speaker 00:
What we're talking about here is for deliberate indifference and the fact that although it's disputed, the economist, the statement that, you know, he wasn't aware that there were going to be issues, didn't intend for anything happened, didn't observe anything happen for the

[00:20:01] Speaker 00:
high burden that we have under deliberate indifference, even at the summary judgment stage, Your Honor, it does defeat that.

[00:20:09] Speaker 00:
I do hope I have answered the question.

[00:20:12] Speaker 04:
Counsel, I have a question for you.

[00:20:14] Speaker 04:
Yes, Your Honor.

[00:20:16] Speaker 04:
First of all, why aren't the guards, the prison personnel, why aren't they deliberately indifferent about not getting him a

[00:20:31] Speaker 04:
a wheelchair van or a van with a lift because they seem to have intentionally said, well, we're not going to do that.

[00:20:42] Speaker 04:
We don't have the time.

[00:20:46] Speaker 00:
Well, Your Honor, we obviously disagree with that recitation of facts, but for purposes of our argument today with respect to what we're analyzing, what goes back to the position that we raised originally

[00:21:01] Speaker 00:
which was the denial of an accommodation does not rise to the level of being a discriminatory status against someone who is in a wheelchair.

[00:21:18] Speaker 04:
Also, I had a question on your statement earlier that his statements were conflicting.

[00:21:28] Speaker 04:
I wonder how a person in

[00:21:31] Speaker 04:
his position was being carried by these two officers.

[00:21:37] Speaker 04:
Couldn't know when they dropped, when they threw him or dropped him.

[00:21:43] Speaker 04:
How could he ever know if he was being thrown or dropped?

[00:21:47] Speaker 04:
And all he can know is they were holding him and moving him and then they, then their hands let go of him and he fell.

[00:22:00] Speaker 04:
How could a claimant like that ever be able to say definitively they threw me or they dropped me?

[00:22:12] Speaker 00:
Well, in this case, Your Honor, the point is that in the original complaint filed by Mr. Briscoe, he alleged that the correctional officers

[00:22:29] Speaker 00:
that there was quotes, loss of balance causing him to fall.

[00:22:34] Speaker 00:
To answer your question directly, I think the reality is the only people who are going to know whether those correctional officers intended to drop or throw Mr. Briscoe are the correctional officers and the record is that they have denied doing so.

[00:23:01] Speaker 00:
And I see, I'm sorry.

[00:23:05] Speaker 04:
I said thank you.

[00:23:07] Speaker 00:
Thank you and I do see that I'm out of time.

[00:23:10] Speaker 00:
So I do thank the panel and I do ask that this court affirm the district court's granting of the summary judgment.

[00:23:18] Speaker 00:
Thank you.

[00:23:19] Speaker 04:
Okay.

[00:23:21] Speaker 04:
Let's see.

[00:23:22] Speaker 04:
Do we have Roboto?

[00:23:25] Speaker 03:
If I may briefly, Your Honor, I just want to make

[00:23:30] Speaker 03:
three quick points.

[00:23:30] Speaker 03:
First, I think I heard my friend say that there's no duty to provide an accommodation from someone in a wheelchair in the circumstance making the request.

[00:23:39] Speaker 03:
If you look at Gorman, for example, which this court, the ASEC case that this court has relied on in McGarry and Lee, it's directly on all fours.

[00:23:49] Speaker 03:
It explains in detail why denial of a reasonable accommodation request for wheelchair accessible transportation to someone who's been arrested is a classic

[00:23:59] Speaker 03:
ADA claim.

[00:24:01] Speaker 03:
It's indistinguishable from this case, and this court has cited it repeatedly.

[00:24:06] Speaker 03:
I heard a suggestion that we had somehow waived arguments about respondeat superior.

[00:24:11] Speaker 03:
That's not correct.

[00:24:12] Speaker 03:
If you look at the blue brief at 33 to 35, we squarely made the argument that an ADA claim is not like a Monell claim in this respect, that respondeat superior liability applies

[00:24:24] Speaker 03:
So the prison, we expanded on that by honing in on Duvall in the reply brief, but we clearly preserved the argument in our opening brief.

[00:24:31] Speaker 03:
And then finally, I would just to respond to Judge Bennett's remarks, I think it's absolutely correct that it's reasonable to wonder whether someone can know in the circumstance whether they've been intentionally thrown or dropped.

[00:24:44] Speaker 03:
I mean, presumably Mr. Briscoe couldn't even see Duran and Villa-Conan.

[00:24:48] Speaker 03:
They were dragging him.

[00:24:49] Speaker 03:
into the van, they were probably behind him.

[00:24:52] Speaker 03:
It's difficult to know whether or not the force that he experienced was intentional or not.

[00:24:56] Speaker 03:
I think, you know, especially given the medical records at FER 42 and 45 that show the extended, that's the MRI results and the record of his surgeries, I think

[00:25:09] Speaker 03:
that record of injury combined with the allegations is certainly enough to create a jury issue about Mr. Villacana's mental state and whether or not this conduct were deliberate.

[00:25:19] Speaker 03:
To the extent that's even material to the claim, as we've said, we think that there could be a viable Eighth Amendment claim here, even if he were accidentally dropped in this circumstance.

[00:25:30] Speaker 03:
With that, we'd ask that the decision as to both the ADA claim and the Eighth Amendment claim be reversed.

[00:25:36] Speaker 03:
Thank you, Your Honor.

[00:25:37] Speaker 04:
Thank you, Counsel.

[00:25:40] Speaker 04:
This case will be submitted.