[00:00:01] Speaker 00:
Good morning, Your Honors.

[00:00:03] Speaker 00:
Deputy Attorney General Oliver Wu on behalf of Defendant Appellant, and I would like to reserve two minutes for rebuttal.

[00:00:10] Speaker 05:
Sure, just keep an eye on the clock.

[00:00:13] Speaker 00:
The district court incorrectly denied summary judgment to four defendant mental health professionals based on nothing more than a difference of medical opinion.

[00:00:22] Speaker 00:
None of the defendants were deliberately indifferent to Mr. Campbell's mental health needs.

[00:00:26] Speaker 00:
And all of the defendants are entitled to qualified immunity because it is both categorically available and because the law was not clearly established.

[00:00:34] Speaker 00:
I'm going to start with the deliberate indifference claim about Baquera, Dr. Martin, Dr. Kenton before discussing qualified immunity and then ending with Mr. Herrera.

[00:00:45] Speaker 00:
Unless the court has any other issues that it would like me to address first.

[00:00:50] Speaker 00:
Becker, Dr. Martin, and Dr. Kenton made reasoned assessments of Mr. Campbell's suicide risk based on the evidence available to them, the mental health record at the time, and the observations of Mr. Campbell through their one-on-one interviews.

[00:01:04] Speaker 00:
However, the district court denied summary judgment relying only on plaintiff's expert's report.

[00:01:10] Speaker 00:
But that report represents nothing more than a difference of medical opinion.

[00:01:14] Speaker 00:
And a difference of opinion is not enough to defeat summary judgment on a deliberate indifference claim.

[00:01:19] Speaker 05:
So you would agree, wouldn't you, that we take the evidence in the light most favorable to the nonmoving party.

[00:01:27] Speaker 05:
Is that right?

[00:01:27] Speaker 05:
Yes, Your Honor.

[00:01:28] Speaker 05:
However- So don't we have to take all of the allegations that the plaintiff makes here basically is true for purposes of this proceeding?

[00:01:40] Speaker 05:
That is correct.

[00:01:41] Speaker 05:
That's what we have to do, right?

[00:01:43] Speaker 05:
Yes.

[00:01:43] Speaker 05:
Now we have the experts declaration and there wasn't a counter declaration by the state that was submitted at summary judgment.

[00:01:52] Speaker 05:
Is that right?

[00:01:53] Speaker 00:
There were declarations submitted by the defendants.

[00:01:55] Speaker 05:
I should say, I apologize.

[00:01:59] Speaker 05:
a counter-expert declaration.

[00:02:01] Speaker 05:
It was not.

[00:02:02] Speaker 05:
Okay, so we have all that evidence with the expert, and it seems like when you look at the evidence in the light most favorable to the plaintiff, that one could say that a reasonable jury could find a constitutional violation.

[00:02:18] Speaker 00:
I have two responses.

[00:02:20] Speaker 00:
While the court is correct that the evidence must be taken in the light most favorable to Mr. Campbell, the underlying material facts are not in dispute.

[00:02:28] Speaker 00:
There is no dispute over what happened.

[00:02:29] Speaker 00:
The medical records are all the same.

[00:02:32] Speaker 00:
All being used are all the same.

[00:02:34] Speaker 00:
The difference here is that Mr. Campbell's expert has a different interpretation of what happened on that day or interpretation of

[00:02:42] Speaker 00:
how the defendant should have acted.

[00:02:45] Speaker 00:
But a difference of medical opinion in a deliberate indifference case is not enough to overcome that bar, simply pointing out that someone else would have done something.

[00:02:55] Speaker 05:
Can we say that, though, on this record as a matter of law?

[00:02:59] Speaker 00:
Yes, Your Honor.

[00:03:00] Speaker 00:
And looking at the cases that plaintiff and the district court cited to support its ruling demonstrates a difference.

[00:03:07] Speaker 00:
For example, the district court cited a cluthier versus city of Contra Costa

[00:03:11] Speaker 00:
And in that case, the patient's clinician told the defendant mental health worker that the patient was at a high risk of suicide.

[00:03:20] Speaker 00:
The defendant mental health worker also agreed that the patient was at a high risk of suicide, stating that they were not yet out of the woods.

[00:03:28] Speaker 00:
Despite all of those conclusions, the defendant released the patient in Cluthier from suicide watch.

[00:03:36] Speaker 00:
But in this case, every single mental health professional that actually treated Campbell

[00:03:41] Speaker 01:
agreed that he was

[00:03:58] Speaker 00:
Not quite, Your Honor.

[00:03:59] Speaker 00:
I think it's less about credibility, but more the question of whether they felt he was at an acute risk of suicide, whether they felt that he was going to try to commit a lethal suicide attempt.

[00:04:11] Speaker 00:
And so in this case, based on the evidence available to them, they did not believe that Mr. Campbell presented as suicidal.

[00:04:18] Speaker 00:
And in fact, after the third cell extraction, when Mr. Baccarat interviewed Campbell again, the treatment team concluded that Campbell was likely homicidal.

[00:04:27] Speaker 00:
that he was trying to pick a fight with the correctional officers because he wanted to hurt them.

[00:04:31] Speaker 00:
And so they eventually moved him into a crisis bed based on that violent and unpredictable behavior.

[00:04:37] Speaker 00:
But ultimately, during this period of time, the defendants all agreed, every mental health professional agreed that Mr. Campbell had a low acute risk of suicide.

[00:04:47] Speaker 00:
And they didn't make these conclusions in isolation.

[00:04:51] Speaker 01:
But at least for Officer Becerra, it seems like he might be in a different bucket because he was told repeatedly that there might be tried committing suicide by cutting, by hanging.

[00:05:08] Speaker 01:
He had a lot more interactions here.

[00:05:11] Speaker 01:
And maybe he was put on more notice, really.

[00:05:13] Speaker 01:
And when he was transcribing,

[00:05:15] Speaker 01:
the forms and putting information in the forms, it seems like he minimized it every single time.

[00:05:20] Speaker 01:
So in some ways, he's in a different position than someone, the Kenton, who maybe had just very minimal contact.

[00:05:26] Speaker 00:
Not exactly, Your Honor.

[00:05:27] Speaker 00:
So to clarify, the expert report mentions prior suicide attempts.

[00:05:32] Speaker 00:
In the June 17 treatment plan, they actually noted that attempt, and it was a hunger strike that occurred many months earlier.

[00:05:39] Speaker 00:
And so the expert disagreed with the defendants on how to characterize that hunger strike.

[00:05:44] Speaker 00:
But again, that's a difference of medical opinion, not

[00:05:47] Speaker 00:
Disputed material fact precluding some of the judgment and in any case the way this is the plaintiff probably couldn't Prove his case without an expert right?

[00:05:58] Speaker 00:
That might be true your honor, but at the same be pretty hard.

[00:06:02] Speaker 05:
I mean I you know it's kind of You know as late as a somebody who's not skilled or knowledgeable in the psychological area of

[00:06:15] Speaker 05:
suicide.

[00:06:18] Speaker 05:
Seems like one would need an expert to offer an opinion.

[00:06:23] Speaker 00:
That's true, Your Honor, but the record still has to reflect that a reasonable mental health professional, that the actions they took were medically unacceptable.

[00:06:31] Speaker 00:
And deliberate indifference is a high bar.

[00:06:34] Speaker 00:
It is much higher than negligence, and it requires something more.

[00:06:37] Speaker 05:
Your time is clicking down.

[00:06:39] Speaker 05:
Why don't you turn to, okay, let's assume, let's just assume for a moment that

[00:06:44] Speaker 05:
There's a claim, there's a constitutional claim here.

[00:06:47] Speaker 05:
You argue that each individual defendant is entitled to qualified immunity.

[00:06:54] Speaker 05:
So why is that so in light of culture?

[00:06:59] Speaker 00:
Yes, so the district court relied only on Clutha to deny qualified immunity.

[00:07:03] Speaker 00:
But the court framed the question as whether reasonable mental health professionals would not have removed key suicide prevention measures put in place by other mental health staff.

[00:07:14] Speaker 00:
But that framing of the question demonstrates why qualified immunity is.

[00:07:19] Speaker 00:
My defendants are entitled to qualified immunity.

[00:07:21] Speaker 00:
There were no suicide prevention measures put in place by any mental health staff.

[00:07:26] Speaker 00:
And so the framing of the constitutional issue simply doesn't match the facts of this case.

[00:07:31] Speaker 00:
And under the second problem, qualified immunity, the court has to identify a constitutional right that was clearly established and particularized to the facts of the case.

[00:07:41] Speaker 00:
And so for that reason, this court can grant qualified immunity to defendants, even if it finds that there is a disputed fact on the deliberate indifference question.

[00:07:50] Speaker 05:
Well, let me ask you this.

[00:07:51] Speaker 05:
The district court, I read the colloquy that took place

[00:07:57] Speaker 05:
on the motion for summary judgment.

[00:07:59] Speaker 05:
And, you know, the district court seemed to indicate or was of the view that the claim that they raised here just fell right within the parameters of culture.

[00:08:14] Speaker 05:
And, you know, why was he so off base in your view?

[00:08:19] Speaker 00:
Well, the framing of the question simply doesn't match the facts.

[00:08:22] Speaker 00:
Like I mentioned... That's it?

[00:08:24] Speaker 05:
He just framed the question incorrectly?

[00:08:26] Speaker 00:
Yes, Your Honor, and that's critical, because for the law to be clearly established, the question must be particularized to the facts of the case.

[00:08:33] Speaker 00:
And what happened here, the dispute here, is whether Mr. Campbell was entitled to a particular protocol or application of a suicide evaluation.

[00:08:42] Speaker 05:
You know, just as the Supreme Court has told us, we can't frame the question too broadly.

[00:08:47] Speaker 05:
I mean, I particularly singled this out.

[00:08:51] Speaker 05:
to generally, by the same token, if you frame the question to map out exactly all the facts, then what you're saying is you have to have a specific case on all fours before you can say that somebody's not entitled.

[00:09:07] Speaker 05:
It doesn't have to be on all fours.

[00:09:08] Speaker 05:
To have the qualified immunity.

[00:09:10] Speaker 00:
Right.

[00:09:10] Speaker 05:
I mean, the court hasn't gone that far.

[00:09:11] Speaker 05:
The court says, you know, you just can't frame it so broad.

[00:09:16] Speaker 00:
That's correct, Your Honor.

[00:09:16] Speaker 00:
It doesn't have to be on all fours, but there certainly has to be some connection.

[00:09:20] Speaker 00:
And every aspect of the constitutional issue the district court identified is simply inaccurate, does not match the facts.

[00:09:27] Speaker 00:
There were no key suicide prevention measures put in place by any mental health staff.

[00:09:32] Speaker 00:
And so, from that basis alone, this court can be unqualified.

[00:09:35] Speaker 03:
Maybe, maybe just for a while.

[00:09:38] Speaker 03:
I do have a question.

[00:09:39] Speaker 03:
The district court found or held that there is a genuine issue of dispute whether defendants Becerra, Martin, Kenton, and Herrera

[00:09:50] Speaker 03:
purposely failed to respond to plaintiff's serious mental health needs, which resulted in harm.

[00:09:58] Speaker 03:
That's sort of a higher standard than deliberate indifference.

[00:10:02] Speaker 03:
He's saying they knew, he found that they knew he had a problem and they purposely did nothing.

[00:10:11] Speaker 03:
That there's a dispute as to that.

[00:10:14] Speaker 03:
That's a much higher standard than deliberate indifference.

[00:10:18] Speaker 00:
That might be, Your Honor, but the district court relied only on the expert's report, which is just a difference of opinion.

[00:10:24] Speaker 00:
And I noticed that by now.

[00:10:26] Speaker 03:
But why do you say it's just a difference of opinion?

[00:10:27] Speaker 03:
You don't have an expert.

[00:10:30] Speaker 00:
That's correct, Your Honor, but the defendants themselves are also knowledgeable about the mental health process and relied on their expertise in making their declarations.

[00:10:41] Speaker 00:
Thank you, Your Honor.

[00:10:43] Speaker 00:
We'll give you some time for the panel.

[00:10:58] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:11:00] Speaker 04:
My name is Thatcher Hoke, and I represent Mr. Campbell, and I'll be discussing the constitutional violation in my co-counsel, Sin Porian Fong.

[00:11:08] Speaker 04:
We'll be discussing the second prong of qualified immunity.

[00:11:14] Speaker 04:
Go ahead.

[00:11:15] Speaker 04:
So first, I want to address a couple of points that were raised by the other side.

[00:11:21] Speaker 04:
First, this does not represent a difference of medical opinion.

[00:11:25] Speaker 04:
I would highlight that not every decision taken by a medical professional is an appropriate exercise of medical opinion.

[00:11:32] Speaker 04:
And for purposes of summary judgment, the defendants do not dispute that Campbell had a serious medical need.

[00:11:38] Speaker 04:
And he suffered physical harm as a result, which was his head wounds from the cell extractions.

[00:11:43] Speaker 04:
And there's a genuine dispute as to whether the defendants were knowledgeable of Campbell's elevated suicide risk at the time that he was under their care.

[00:11:49] Speaker 04:
And here, our experts showed that the course of treatment chosen by each defendant was medically unacceptable under the circumstances.

[00:11:57] Speaker 04:
And they intentionally ignored or mischaracterized several key risk factors, including

[00:12:02] Speaker 04:
Campbell's prior history of suicide attempts his medical history the fact that he subjected himself to multiple cell extractions and his refusal to take his medication and so their decision not to recommend Suicide prevention care could be found by reasonable jury is a

[00:12:19] Speaker 01:
cell suicide by cell extraction.

[00:12:22] Speaker 01:
Is that a common thing?

[00:12:24] Speaker 01:
I know obviously we've heard of things like suicide by cop where someone aggressively approaches an officer who's armed and wants to commit suicide that way, but is suicide by cell extraction a thing because

[00:12:37] Speaker 01:
Cell extraction is common.

[00:12:39] Speaker 01:
A lot of times prisoners, because they want to protest something, they want their property back, they don't like certain things that are happening to them, they'll board up their cells.

[00:12:46] Speaker 01:
They'll put up their mattress, sheets, or whatever it is, and they get extracted.

[00:12:51] Speaker 01:
What I'm trying to get at here is would some of these officers think when he boarded up his cell, think that's not a suicide attempt, but rather he's complaining about something?

[00:13:03] Speaker 04:
Yes, and I believe it is a fairly common thing.

[00:13:07] Speaker 04:
I know that, I mean, Mr. Campbell himself characterized his intention as being to kill himself when he was boarding up his cell.

[00:13:16] Speaker 01:
But we would look at from what a reasonable, you know, officer would do here in this situation and would they view this as, okay, here is a person who doesn't like a certain policy or something that's happening to him, so he's protesting.

[00:13:31] Speaker 01:
this and wouldn't view that as a suicide attempt.

[00:13:37] Speaker 04:
Yes, I take your point and I think we did mention a couple of cases I believe from the northern district in our briefs that address this and the cell extraction being a recognized way of attempting suicide.

[00:13:54] Speaker 04:
And I think also what's important to note here is that Campbell told Kenton and Martin that his intention was to commit suicide by cop,

[00:14:06] Speaker 04:
cell extraction.

[00:14:07] Speaker 03:
And so I don't understand the cell extraction concept.

[00:14:13] Speaker 03:
So how does that end up in his death?

[00:14:17] Speaker 04:
So I think it's comparable to the suicide by cop where he's boarding up his cell.

[00:14:26] Speaker 04:
He knows that a group of officers are going to seek to extract him.

[00:14:33] Speaker 04:
And so he's anticipating a violent reaction to boarding up his cell.

[00:14:41] Speaker 04:
especially with what our expert highlighted as well about the treatment of Campbell, I think that goes to show that at least there's a reasonable inference to be drawn there that the medical professionals would have known that he was attempting suicide by doing so and that he had told them he was suicidal before that happened and after.

[00:15:08] Speaker 05:
Let me ask you this.

[00:15:11] Speaker 05:
How does Herrera fit into this?

[00:15:14] Speaker 05:
He seemed to be just a technician who was delivering meds and had a particular responsibility in the way in which he was to record the delivery of the medications.

[00:15:31] Speaker 05:
He had a form he had to fill out.

[00:15:33] Speaker 05:
What did he do wrong?

[00:15:36] Speaker 04:
What constitutional right did he violate?

[00:15:39] Speaker 04:
There are two distinct issues with Herrera, which are his failure to report Campbell's statement of suicidal intent to the prison health staff and his failure to report

[00:15:49] Speaker 04:
Campbell's refusal to take his medication.

[00:15:51] Speaker 04:
And to answer your question, we believe that both of those give rise to a reasonable inference that he was deliberately indifferent in providing care to Campbell.

[00:16:02] Speaker 05:
So first, our expert for your reporting... Is there any sort of policy statement or protocol that he's supposed to follow that he didn't follow?

[00:16:14] Speaker 04:
Yes, so for reporting the suicidal statement, our expert noted that he directly violated the CDCR policy that requires all employees to immediately notify health staff if they become aware of an inmate's suicidal ideation, and that's in the record at ER 167.

[00:16:30] Speaker 04:
And so he himself confirmed that he reports to custody staff every time an inmate tells him that he feels suicidal.

[00:16:36] Speaker 04:
And so beyond the specific policy, I think also a primary goal of the mental health practice is preventing suicide.

[00:16:43] Speaker 04:
So the fact that there was no follow-up at all to his statement gives rise to a reasonable inference that he was deliberately indifferent.

[00:16:50] Speaker 04:
And I'll yield the rest of my time to Michael.

[00:17:02] Speaker 02:
Good morning, Your Honors.

[00:17:03] Speaker 02:
My name is Symporian Fong, and I, too, represent Mr. Campbell.

[00:17:07] Speaker 02:
Your Honors, the right issue in this case is that when a mental health professional knows that their patient has a substantial risk of committing suicide, they cannot be deliberately indifferent in providing adequate suicide prevention measures.

[00:17:21] Speaker 02:
This right was clearly established in 2010 in this court's case, Clotier v. County of Contra Costa.

[00:17:27] Speaker 02:
Your Honors, the defendants had noted that or suggested that

[00:17:30] Speaker 02:
This case doesn't stand on all fours with the defendants here, but we believe it specifically stands on all fours when it relates to Kenton and Martin, who did remove suicide prevention measures that were put in place after Mr. Campbell had the cell extractions take place.

[00:17:47] Speaker 02:
However, Clottier was crucial to the holding of Clottier was that the clinician there had substantial knowledge that Clottier was suicidal based off of his medical records, as well as the direct encounters with

[00:18:00] Speaker 02:
past positions related to how he was suicidal.

[00:18:03] Speaker 02:
But here, there is substantial knowledge by all defendants that Mr. Campbell was suicidal, as my co-counselor previously discussed.

[00:18:11] Speaker 02:
So we believe that clause here is most applicable here in suggesting that to the defendants that their actions were clearly unlawful.

[00:18:21] Speaker 05:
So let me ask you this.

[00:18:22] Speaker 05:
What should a reasonable

[00:18:25] Speaker 02:
mental health worker in a prison situation take from culture that if there is a subset if they have knowledge that there's a substantial risk of that the patients committing suicide issue provide adequate suicide prevention measures so in the case of cancer in the morning you should have continued those suicide prevention measures that were already existing in the case of her he should have immediately notified a health staff member that couple had noted that he was suicidal and for the Sarah he should have done elevated care a lot sooner

[00:18:55] Speaker 02:
However, he continually ignored it.

[00:18:57] Speaker 05:
Now, when you look at what they did, they did interview him, correct?

[00:19:02] Speaker 05:
Kenton and, what was the other fellow's name?

[00:19:04] Speaker 05:
Martin.

[00:19:05] Speaker 05:
Martin.

[00:19:05] Speaker 05:
They're both psychologists, right?

[00:19:08] Speaker 02:
Yes, Your Honor.

[00:19:09] Speaker 05:
They did, each one of them interviewed him or met with him.

[00:19:13] Speaker 02:
For a brief period of time, yes.

[00:19:15] Speaker 05:
And I gather they looked at his records, is that, or do we know?

[00:19:19] Speaker 05:
Yes.

[00:19:20] Speaker 05:
He did.

[00:19:22] Speaker 05:
Okay, so then they formed an opinion about what care he should receive, right?

[00:19:28] Speaker 05:
Yes.

[00:19:30] Speaker 02:
But it is our opinion that they were being deliberately indifferent in the care that they provided because they ignored the symptoms that he was provided.

[00:19:38] Speaker 02:
Specifically, he had those recent cell extractions the night before and his medical records suggest that he was at risk of committing suicide continuing.

[00:19:47] Speaker 05:
Right.

[00:19:48] Speaker 05:
At least, though, for the constitutional violation, it seems like your expert witness is critical.

[00:19:57] Speaker 02:
Yes, Your Honor.

[00:19:59] Speaker 05:
You'd agree with that, right?

[00:20:00] Speaker 02:
We agree.

[00:20:00] Speaker 02:
But at this stage of the case, when read the facts most favorably to our side, a reasonable jury could find that they were being deliberately indifferent.

[00:20:09] Speaker 05:
How about with respect to the technician Herrera?

[00:20:14] Speaker 02:
So as previously mentioned by my co-counsel, there's two issues that we see with Herrera.

[00:20:19] Speaker 02:
The one issue is that when Mr. Campbell refused to take the lithium carbonate seven times in the month of October, he did not find out the reason as to why, which was direct violation of CDCR policy.

[00:20:30] Speaker 02:
And the second issue we have with Herrera is that when Mr. Campbell directly told Herrera that he was suicidal, he did not notify any mental health worker, also in violation of CDCR policy.

[00:20:44] Speaker 02:
As noted on this court's case in Vasquez versus County of Kern, this court can look at other non-legal issues to determine whether a reasonable officer would have figured out that their actions were unlawful.

[00:20:55] Speaker 02:
And here we believe that knowing that they violated CDCR policy gives rise to the notion that they knew that Herrera's acts were unlawful.

[00:21:05] Speaker 02:
And I see that my time is almost up.

[00:21:07] Speaker 02:
We just want to emphasize that with here, Claude's here does stand on all fours because it really does suggest

[00:21:14] Speaker 02:
when looking at the facts of that case, that it really applies to a mental health provider who knows that their patient has a substantial risk of COA decidality.

[00:21:22] Speaker 02:
And here, that applies to all four defendants here in this case.

[00:21:26] Speaker 02:
And if there's no other questions, we ask this court to affirm the district court's denial summary judgment and allow this case to continue.

[00:21:32] Speaker 02:
Thank you.

[00:21:33] Speaker 05:
Thank you.

[00:21:34] Speaker 05:
We'll hear from the state.

[00:21:35] Speaker 05:
Why don't we put just two minutes on the clock for them.

[00:21:47] Speaker 00:
If the court has any questions, I'm happy to answer them.

[00:21:50] Speaker 00:
Otherwise, I just have two points to make.

[00:21:51] Speaker 00:
Okay.

[00:21:52] Speaker 00:
First, for Dr. Becerra, Mr. Becerra, Dr. Martin, and Dr. Kenton, they didn't just interview Mr. Campbell and ignore him and do nothing.

[00:22:01] Speaker 00:
Dr. Martin and Dr. Kenton both ordered five-day follow-ups, meaning that for every single day for the next five days,

[00:22:07] Speaker 00:
A mental health connection had to follow up with Mr. Campbell, interview, and assess him.

[00:22:12] Speaker 00:
And Baquera, after the third cell extraction, Mr. Baquera placed Mr. Campbell into a crisis bed considering his recent pattern of violent and unpredictable behavior.

[00:22:22] Speaker 00:
So this is not a case where they simply listened to him and brushed him off.

[00:22:26] Speaker 00:
My second point is to Mr. Herrera.

[00:22:29] Speaker 00:
The district court lumped Mr. Herrera in with Becerra, Dr. Martin, and Dr. Kenton when discussing qualified immunity.

[00:22:35] Speaker 00:
The court didn't bother to make a factual analysis of the claim against Herrera.

[00:22:40] Speaker 00:
And that was critical, because the factual basis for the deliberate indifference claim against Herrera is entirely different than a claim against Becerra, Dr. Martin, and Dr. Kenton.

[00:22:50] Speaker 00:
And so for that reason, the district court's order should be reversed.

[00:22:55] Speaker 05:
Thank you, Council, and thank you.

[00:22:57] Speaker 05:
Thank you to the law school and the clinic.

[00:22:59] Speaker 05:
We appreciate the willingness to take on a case.

[00:23:02] Speaker 05:
Thank you very much.

[00:23:03] Speaker 03:
Excellent job, students, and the clinic.

[00:23:08] Speaker 03:
And for the state.

[00:23:10] Speaker 03:
And for the state, too.

[00:23:16] Speaker 05:
Thank you.