[00:00:00] Speaker 03:
with that, we'll take up the only case we have today on the argument calendar, Cardenas, Ornelas versus Johnson, and we have the pleasure of having a law student argue, am I correct?

[00:00:13] Speaker 03:
So that's wonderful.

[00:00:14] Speaker 03:
Welcome to the Ninth Circuit.

[00:00:17] Speaker 03:
You have 15 minutes aside.

[00:00:19] Speaker 03:
You can reserve whatever time you wish for rebuttal, but you have to watch the clock yourself.

[00:00:26] Speaker 03:
And so whenever you are ready, counsel.

[00:00:32] Speaker 03:
Oh, OK.

[00:00:34] Speaker 04:
All right.

[00:00:36] Speaker 04:
Unless you want, I will let her go first.

[00:00:38] Speaker 03:
OK.

[00:00:41] Speaker 03:
Yes, sorry.

[00:00:42] Speaker 03:
Got that wrong.

[00:00:43] Speaker 03:
Sorry.

[00:00:44] Speaker 04:
We've also kind of made a deal that if we ever have this with UCLA law school again, that you will all schedule it in Pasadena.

[00:00:52] Speaker 04:
We've all decided that I love working in the garden and the Rose Garden in Pasadena.

[00:00:56] Speaker 04:
And I'm here in Las Vegas, so it doesn't.

[00:00:59] Speaker 03:
So you prefer Pasadena to Las Vegas?

[00:01:03] Speaker 04:
Well, since I'm here all the time, you know, it's kind of makes sense, you know, especially like I said, I can't, I don't think you could beat Pasadena for prettiness as far as the courthouse.

[00:01:11] Speaker 03:
Well, it is a lovely courthouse and there are many fun stories that I will not bore you with as to how the Ninth Circuit acquired the courthouse.

[00:01:21] Speaker 04:
I guess the other thing you could do is, you know, if it's ever before your honor, you know, we can always do this in Hawaii.

[00:01:29] Speaker 03:
There's a long line.

[00:01:33] Speaker 03:
So again, sorry about mixing up appellant and appellee.

[00:01:36] Speaker 03:
And whenever you are ready, counsel.

[00:01:39] Speaker 03:
Thank you, your honor.

[00:01:41] Speaker 04:
I'd like to thank the court for allowing me to present my arguments on behalf of appellant's defendants.

[00:01:46] Speaker 04:
I'm Chris Davis.

[00:01:48] Speaker 04:
The district court erred when denying Warden Johnson's motion for summary judgment, asserting qualified immunity with respect to

[00:01:54] Speaker 04:
I'm sorry.

[00:01:55] Speaker 04:
I'm sorry.

[00:01:56] Speaker 04:
I'm sorry.

[00:01:58] Speaker 04:
I'm sorry.

[00:01:59] Speaker 04:
I'm sorry.

[00:02:02] Speaker 04:
I'm sorry.

[00:02:07] Speaker 04:
I'm sorry.

[00:02:09] Speaker 04:
by working in training and rehabilitation programs may substitute for any exercise requirement.

[00:02:15] Speaker 04:
And three, held that this court should not second-guess prison officials when combating the unprecedented COVID-19 pandemic emergency, which was an issue in this case.

[00:02:25] Speaker 04:
Also, the district court erred when denying Ward Johnson's motion for summary judgment asserting qualified immunity with respect to Cardenas and Arenas's 14th Amendment

[00:02:34] Speaker 04:
equal protection claim because one, Cardenas and Arenas was not treated differently from other offenders who were in units exposed to COVID-19 as required by this court as set forth in this court's decision in C-plane.

[00:02:46] Speaker 04:
Two, Cardenas and Arenas was not similarly situated in almost critical respects with offenders in non-COVID-19 units who were provided yard time as set forth in the Smile Direct Club, this court's case.

[00:02:58] Speaker 04:
And three, restricting non-essential activities such as yard time

[00:03:05] Speaker 04:
to prevent the spread of COVID-19 clearly satisfies this court's rational basis test.

[00:03:10] Speaker 04:
The court further erred when denying Warden Johnson's motion for summary judgment with respect to Cardenas-Lorena's state law claims because one, the district court lacked jurisdiction as Nevada has not waived its sovereign immunity protected by the 11th Amendment, and two, Warden Johnson did not violate the Nevada Constitution for the same reasons he did not violate the federal Constitution.

[00:03:30] Speaker 02:
On the issue of the yard time, why wasn't it clearly established by 2020 that inmates have a right to exercise and to outdoor time?

[00:03:45] Speaker 02:
And that, in fact, that's a basic human need.

[00:03:47] Speaker 02:
Because I read our case law, this Greenport case law,

[00:03:51] Speaker 04:
that's what we're dealing with.

[00:03:55] Speaker 04:
We're dealing with the opportunity to exercise outdoor and and in Norbert, the Norbert says there is no categorical requirement for outdoor exercise.

[00:04:05] Speaker 04:
Cardenas Aranis 8th Amendment claim fails because when facing a genuine emergency such as the unprecedented COVID-19 pandemic, the Supreme Court and this court have repeatedly held the decisions made to combat

[00:04:20] Speaker 04:
and not by judges and juries.

[00:04:22] Speaker 04:
Warden-Johnson is shielded by qualified immunity because no authority requires offenders to be released from quarantine for purposes of outdoor exercise when the quarantine was instituted for the safety and security reasons during the midst of an unprecedented global pandemic.

[00:04:35] Speaker 03:
But counsel, I agree with you that at some level we have jurisdiction here to consider the qualified immunity appeal.

[00:04:46] Speaker 03:
But as my colleague said,

[00:04:48] Speaker 03:
I think our cases Thomas V Ponder but other cases establish that out-of-cell exercise is a fundamental right and

[00:05:03] Speaker 03:
You're arguing that something else is good enough, right?

[00:05:09] Speaker 03:
That's correct, Your Honor.

[00:05:10] Speaker 03:
But why wouldn't that really be a fact issue as opposed to whether whatever you're arguing is good enough?

[00:05:22] Speaker 03:
That if there's a clearly established right, why wouldn't that be something that is too granular for us to take up on appeal?

[00:05:30] Speaker 04:
Well, you mean saying that you don't have jurisdiction because there's a sufficiency of the end of an argument?

[00:05:36] Speaker 03:
Is that what you're calling it?

[00:05:39] Speaker 03:
If we're looking at the delta between what they were constitutionally entitled to and what you say they got, why would we have jurisdiction to really look at that as opposed?

[00:05:53] Speaker 03:
Wouldn't that be a disputed type fact?

[00:05:55] Speaker 04:
No, because, Your Honor, because we're in a qualified immunity suspension.

[00:05:58] Speaker 04:
When you're dealing with qualified immunity, you don't deal with issues of fact.

[00:06:01] Speaker 04:
What you deal with is that you take the little facts and construe them literally in favor of the plaintiff, and if, then you have to find a case under those factual scenarios that would notify us that we're validly right.

[00:06:13] Speaker 03:
But aren't the facts in the light most favorable to the plaintiff?

[00:06:17] Speaker 03:
They were denied meaningful exercise and that there was a right that was established for many years that this is a basic human need for prisoners and that what you're saying qualifies just in their view is an exercise.

[00:06:32] Speaker 04:
No, because you've got to go to the Norbert case.

[00:06:36] Speaker 04:
And it says, the Constitution requires jail officials provided outdoor recreational opportunities or otherwise meaningful recreation.

[00:06:44] Speaker 03:
And what's the otherwise meaningful recreation?

[00:06:46] Speaker 03:
Walking to the factory?

[00:06:49] Speaker 04:
Well, not only that, also working in the factory.

[00:06:52] Speaker 04:
Working in the prison industries is a rehabilitation opportunity.

[00:06:56] Speaker 00:
That's especially the type of program that... But that's, I guess, to Judge Bennett's point, why is that not a factual dispute?

[00:07:01] Speaker 00:
Because I take it the other side of saying that's not a meaningful recreational opportunity.

[00:07:05] Speaker 00:
And as you said, we're not here to gauge the merits of factual weighing.

[00:07:11] Speaker 04:
Right.

[00:07:11] Speaker 04:
Okay.

[00:07:12] Speaker 04:
But the thing is, is what you'd have to then have is a case that says, that tells us that that's not, you'd have to have it say, well, working in prison industries is not an otherwise meaningful recreational opportunity.

[00:07:23] Speaker 02:
I'm not sure that's true.

[00:07:24] Speaker 02:
I mean, we held in Hampton that case law doesn't have to catalog every single way in which conditions are constitutionally

[00:07:32] Speaker 02:
inadequate so I mean it kind of goes back to the question that I asked you at the outside which is whether there isn't enough in case law to establish the principle.

[00:07:41] Speaker 04:
Well the thing is that you've told us that we can what you're saying is you're putting us in a bad situation because what you're telling us is hey

[00:07:50] Speaker 04:
you can give meaningful recreational opportunities to substitute for outdoor exercise or for exercise because you've said that you don't require outdoor exercise in Norbert but it can substitute for exercise and then tell us hey but guess what you got it wrong.

[00:08:03] Speaker 03:
But council let me give you what you might view as a reductio ad absurdum type hypothetical.

[00:08:09] Speaker 03:
What if your argument to me was, well, they got to walk around in their cell.

[00:08:16] Speaker 03:
You know, it's 20 feet around.

[00:08:18] Speaker 03:
They get to walk around in their cell, circle their cell as much as they want.

[00:08:23] Speaker 03:
That's exercise so they don't get anything else.

[00:08:25] Speaker 03:
Would the argument be the same?

[00:08:27] Speaker 04:
Well, the thing is it would be the same in that you actually have cases that say exercising your cell alone is enough to satisfy the exercise requirement.

[00:08:36] Speaker 03:
What if you could, so then that would be the case for virtually any prisoner, right?

[00:08:42] Speaker 03:
Any prisoner could walk around their cell as opposed to outdoor in the yard.

[00:08:47] Speaker 04:
Well, it depends on the level of confinement there is.

[00:08:53] Speaker 04:
I mean, there's been certain instances where they say, hey, if you can't get out of your cell at all.

[00:08:58] Speaker 04:
I mean, there are cases that say, if you can't get out of your cell at all, and you're stuck in your cell 24 hours a day, and you're there all the time, I would say that may be the line where you don't have it.

[00:09:09] Speaker 04:
But that's not what we have in this case.

[00:09:11] Speaker 04:
This case, he was out of his cell 16 hours a day.

[00:09:14] Speaker 04:
I mean, it's not the same type of scenario at all.

[00:09:17] Speaker 04:
In fact, there's not one case where you can say, there's not any case where you can point us to, where a prisoner was out of his cell for 16 hours a day doing meaningful recreational opportunities and then found an instrument of violation.

[00:09:32] Speaker 03:
So I should know the answer to this question, and I apologize for not, but in any of the grievance denials, did the warden or the warden's agent say working in the factory is exercise?

[00:09:46] Speaker 04:
Your Honor, I don't think that was an issue even raised one way or the other.

[00:09:50] Speaker 04:
Well, I mean, I don't know about whether it was raised or... I think that they were focusing on when they were doing the grievances, they were focusing on that, hey, we're in the COVID pandemic.

[00:09:57] Speaker 04:
And that gets us to the other case that... And in fact, before I get there, I want to talk about the Eighth Circuit in Henderson, because Henderson actually dealt with this issue, which is and held that an eight-minute rights were not violated by equating an inmate's work assignment and assault opportunities with a three-hour-per-week exercise requirement.

[00:10:16] Speaker 04:
And as Your Honor said, he could undisputably exercise in his cell.

[00:10:21] Speaker 04:
He had 16 hours of meaningful outside training.

[00:10:24] Speaker 04:
He could walk to and from outdoors, so he wasn't like he wasn't getting outside at all.

[00:10:28] Speaker 04:
He could walk to and from prison.

[00:10:31] Speaker 04:
twice a week one way, twice a week the other way.

[00:10:34] Speaker 04:
And therefore, he doesn't meet the minimal, and that's a standard you've got to remember.

[00:10:38] Speaker 04:
He doesn't meet the minimal civilized measures of life necessities, which was sufficiently grave to form the basis of any kind of violation.

[00:10:46] Speaker 04:
That's the standard we have to violate.

[00:10:48] Speaker 04:
And he was given the minimal civilized necessities.

[00:10:51] Speaker 04:
I mean, you just really can't say that, you know, the prison, the warden has discretion, he's got to be able to choose between these two different,

[00:11:01] Speaker 04:
things and he says we decided we did the warden in his discretion which is allowed under Norwood and you got to remember Norwood because it says if there's an emergency situation we've got almost unlimited discretion on how to have that emergency.

[00:11:15] Speaker 00:
But one of the difficulties that I have with your argument there is

[00:11:19] Speaker 00:
the same emergency situation and there were other units that were allowed exercise time but not unit nine as it's been alleged.

[00:11:27] Speaker 00:
So what is it, you know, if we're getting into factual details about this, why is it that the emergency situation only applied to this unit and not to the others?

[00:11:37] Speaker 04:
Because it was his unit, not just unit nine, but his unit and other units that had inmates that came in contact with COVID-19.

[00:11:42] Speaker 04:
Those were the units that weren't allowed to go to the yard.

[00:11:45] Speaker 04:
And the reason why they couldn't go to the yard was because the yard,

[00:11:49] Speaker 00:
I'm disputing the record.

[00:11:50] Speaker 00:
But there was an inmate that was, I guess, tested positive in, what, late April or May.

[00:11:56] Speaker 00:
But they were not allowed yard access throughout the entire year.

[00:12:00] Speaker 00:
So what is it?

[00:12:02] Speaker 00:
I mean,

[00:12:02] Speaker 00:
I don't understand the record to be that there were inmates testing positive in succeeding months throughout the year.

[00:12:11] Speaker 04:
Well, first of all, the evidence in the record is that any unit that had an inmate that tested positive for COVID-19 was not going to the yard.

[00:12:19] Speaker 00:
For how long?

[00:12:20] Speaker 04:
Well, it was... Six months?

[00:12:23] Speaker 04:
It was true.

[00:12:24] Speaker 04:
It was true.

[00:12:25] Speaker 04:
Actually, there were times that where it was a one 40 day period and then a seven month period in Cardenas.

[00:12:30] Speaker 00:
And so is there was there a prison policy that said that if someone tested positive for covid no one in that unit could go to the yard for six months or 90 days or.

[00:12:40] Speaker 04:
No, it was because we were doing an ever-evolving emergency.

[00:12:44] Speaker 04:
You've got to remember what COVID-19 was.

[00:12:45] Speaker 04:
It was a unique situation.

[00:12:47] Speaker 04:
Nobody's ever dealt with something like COVID-19.

[00:12:50] Speaker 04:
The prison was trying to do the best they could do to protect the inmates and make them safe.

[00:12:55] Speaker 03:
Well, I mean, counsel, one of the things that we're dealing with here is

[00:13:02] Speaker 03:
this what to me is a disconnect and I think for me it only comes up on the 8th Amendment claim not the equal protection claim but a disconnect between all of this terrible stuff which the pandemic is is going around and we have to protect everybody

[00:13:23] Speaker 03:
but it's okay to send them to work with all the other inmates from their unit in the factory.

[00:13:29] Speaker 03:
So, I mean, there is a significant, to me, inconsistency there.

[00:13:37] Speaker 03:
Not necessarily an irrational inconsistency for equal protection purposes, but a significant factual inconsistency between

[00:13:48] Speaker 03:
all this horrible stuff is going on, but we have to keep the factory going.

[00:13:53] Speaker 03:
So we're going to send the inmates to the factory even when they have COVID.

[00:13:57] Speaker 04:
It's not that we've had to keep the factory going.

[00:13:59] Speaker 04:
It's that we were trying to provide prisoners with the maximum amount of recreational opportunities that we could provide.

[00:14:05] Speaker 04:
And we could provide it in prison industries because we had a fogger that could defog it.

[00:14:11] Speaker 04:
We had one unit at a time.

[00:14:13] Speaker 03:
Again, counsel, is there anything in the record

[00:14:17] Speaker 03:
where any declaration from any prisoner, prison officer said the factory work was recreation.

[00:14:27] Speaker 04:
Well, no, Your Honor, there's not a declaration, but that's what it is.

[00:14:32] Speaker 04:
This is a recreational opportunity.

[00:14:34] Speaker 04:
I mean, that's what it is.

[00:14:35] Speaker 04:
I mean, that's how it's how it's described in Nevada statutes.

[00:14:38] Speaker 04:
That's how it's described.

[00:14:39] Speaker 04:
And it's a privilege.

[00:14:41] Speaker 00:
Can we switch to the equal protection argument?

[00:14:44] Speaker 00:
And I wanted to ask you this.

[00:14:46] Speaker 00:
What standard should we apply to that claim?

[00:14:50] Speaker 00:
Should we apply Turner versus Safley or rational basis review and why?

[00:14:55] Speaker 04:
It's clearly a rational basis review.

[00:14:57] Speaker 04:
When in the cases they cited, they were dealt with religious

[00:15:01] Speaker 04:
religious classification, here we don't have a specific classification or a fundamental right, and therefore, it can only be rational basis to view under the Bottnall case.

[00:15:13] Speaker 00:
Was rational basis review applied in other non-First Amendment cases?

[00:15:17] Speaker 00:
I mean, sorry, was Turner applied in other non-First Amendment cases?

[00:15:23] Speaker 00:
The Turner standard for prison conditions, is it applied only, as you understand it, in the context of First Amendment type claims?

[00:15:31] Speaker 04:
I think it's applied in not only First Amendment, but other similar types of constitutional law where it's not strict scrutiny.

[00:15:36] Speaker 04:
If it's, for example,

[00:15:38] Speaker 04:
If it's a racial classification, for example, you would be applying scrutiny.

[00:15:43] Speaker 04:
But I think there's other suspect classifications.

[00:15:46] Speaker 04:
I also want to get back to the Eighth Amendment, because the other reason why you can grant summary judgment for it, because there's no way that Warden Dunson could have known anything about that this was harming Cardinal Serenis at all.

[00:15:59] Speaker 04:
He knew he was going out to prison industries.

[00:16:01] Speaker 04:
He knew he was doing this.

[00:16:02] Speaker 04:
And his thing that he says that he's got muscle catastrophe and things like this, there's no medical evidence in the record of that.

[00:16:08] Speaker 04:
He can't do it.

[00:16:08] Speaker 04:
And under Norwood, Norwood says, hey, when you're fighting an emergency situation like this, you're required to defer to the prison.

[00:16:19] Speaker 04:
I mean, if you decide against Warden Johnson, what you're saying is you're going to be turning this over to not to warden and to prison authorities, who this court and the Supreme Court has always said needs to be the one that makes these decisions.

[00:16:32] Speaker 04:
But you'll be turning it over to judges and juries,

[00:16:35] Speaker 00:
I'm trying to understand your argument.

[00:16:38] Speaker 00:
Warden Johnson was the one that signed the denial of the first appeal, the first formal grievance in which Mr. Curtis Ornelas said, you're violating my constitutional rights to exercise.

[00:16:54] Speaker 00:
So why wasn't he subjectively aware of those conditions?

[00:17:00] Speaker 04:
Because it's not enough that he's just deprived of outdoor exercise.

[00:17:03] Speaker 04:
He's got to show that there's something happens to him because of it.

[00:17:06] Speaker 04:
He's suffered some adverse effect.

[00:17:09] Speaker 00:
It's not a... Didn't he say that he's been locked in his cell for 23 hours a day for many months at a time when other units have been out?

[00:17:17] Speaker 04:
But he couldn't say that because he wasn't.

[00:17:20] Speaker 04:
He was there for... He was going out... But did he say that?

[00:17:25] Speaker 00:
So then why isn't that enough for the warden to have been subjectively aware of the conditions that were complained of?

[00:17:33] Speaker 04:
Because being deprived of exercise is not enough.

[00:17:37] Speaker 04:
He's got some adverse effects on top of that.

[00:17:42] Speaker 00:
And so your argument is he was not aware of any adverse effects from the complaints.

[00:17:47] Speaker 04:
And not only that, he was not aware that he was harming him because he was trying to protect him from a much more serious danger, which was COVID-19.

[00:17:55] Speaker 04:
I think the thing that's telling is there's nothing in the record that says that

[00:17:59] Speaker 04:
that Cardenas Hernandez contracted COVID-19.

[00:18:02] Speaker 04:
And I think that's because of the protections that Warden Johnson instituted based on the directives that he was required to follow that he could not change from the Nevada medical director.

[00:18:18] Speaker 03:
All right, thank you, counsel.

[00:18:19] Speaker 03:
You're out of time, but we'll give you some time for rebuttal.

[00:18:26] Speaker 03:
Now it really is your turn.

[00:18:28] Speaker 01:
Good morning, Your Honors.

[00:18:30] Speaker 01:
Ali Zenworth, certified law student, on behalf of Mr. Kartanis and L.S.

[00:18:33] Speaker 01:
I want to respond to the Norbert argument.

[00:18:36] Speaker 01:
Norbert needs to be taken in context of the cases that came before it.

[00:18:39] Speaker 01:
For instance, in short of Ibaka, the plaintiff was given access to a recreation room where she could participate in group activities, watch television.

[00:18:47] Speaker 01:
This court held it was insufficient.

[00:18:49] Speaker 01:
In Keenan v. Hall, the plaintiff was given access to an indoor space with access to sunlight.

[00:18:54] Speaker 01:
That was insufficient.

[00:18:56] Speaker 01:
So Norbert in context means

[00:18:58] Speaker 01:
there's a presumption for outdoor exercise.

[00:19:00] Speaker 01:
And when that is not given, it needs to be a space equipped for exercise, which is not what Mr. Cardenas-Nittles was given.

[00:19:08] Speaker 01:
And finally, as to the deference requirement, this court has been clear, again, in short of Ibaka, Thomas V. Ponder, and the cases that came before it, then when there's substantial evidence in the records showing that the justification given is not warranted or unjustified, this court is not required to give deference to prison officials.

[00:19:28] Speaker 02:
I'd like to ask a question about the 14th Amendment claim.

[00:19:31] Speaker 02:
What evidence do we have before us other than the allegations and the complaint, unsworn allegations of the warden's supposed dislike of inmates in protective segregation?

[00:19:43] Speaker 01:
What is clear is that other units were getting exercise and Unit 9 was not.

[00:19:50] Speaker 01:
And there was no legitimate justification for that.

[00:19:53] Speaker 01:
And especially given it involved a constitutional right, that is enough.

[00:19:58] Speaker 03:
Oh, the people in Ward 9 had COVID, right?

[00:20:03] Speaker 03:
The record does not substantiate that.

[00:20:05] Speaker 03:
The record does substantiate that.

[00:20:07] Speaker 03:
I mean, for example, I'm looking at your client's declaration of Trenton Paul Harris, which specifically talks about COVID.

[00:20:23] Speaker 01:
Yes.

[00:20:23] Speaker 01:
But between the end of June to the end of December, there were no known COVID infections in Unit 9.

[00:20:31] Speaker 01:
And further starting in October 17th, the Warden Institute of Policy where units will no longer lock down the entire unit when someone in that unit had an infection or tested positive.

[00:20:42] Speaker 01:
Therefore, at least from that period onward.

[00:20:44] Speaker 01:
And the only evidence in the record showing that they were.

[00:20:49] Speaker 03:
But to get to my colleague's question, that may be so, but how does that show a personal animus toward the people in this unit?

[00:21:01] Speaker 03:
Yeah, that's a question.

[00:21:03] Speaker 02:
Do I have that question right?

[00:21:04] Speaker 02:
Yes.

[00:21:05] Speaker 02:
Yes, there.

[00:21:05] Speaker 01:
Thank you.

[00:21:07] Speaker 01:
There's Shakur v. Srivam, make clear there's no animus directly required to be shown.

[00:21:12] Speaker 01:
It just needs to be that people were treated differently.

[00:21:15] Speaker 01:
And that is what we have here without justification.

[00:21:17] Speaker 01:
And there is no justification for why Unit 9 was denied exercise.

[00:21:21] Speaker 01:
There's no legitimate justification.

[00:21:24] Speaker 03:
Well, when I'm looking, for example, at then

[00:21:30] Speaker 03:
associate warden beans declaration at the are 56 he said, for example, inmates in units who did not have persons suspected of contracting covid were permitted to resume yard time and permitted phone time unit 9.

[00:21:47] Speaker 03:
Cardenas Analysis Unit, however, remained in quarantine based on inmates in that unit having tested positive for COVID.

[00:21:54] Speaker 03:
While quarantined units were not given yard time, they were able to exercise in the yard.

[00:22:00] Speaker 03:
Despite being quarantined, inmates were able to continue working because only inmates in Unit 9 worked in prison industries.

[00:22:09] Speaker 03:
So, I mean, that may not be a great reason,

[00:22:13] Speaker 03:
But it's a reason, and we have to judge the equal protection, I think, on a rational basis.

[00:22:22] Speaker 01:
Well, Shakur v. Shreve more generally held that Turner applies the equal protection claims.

[00:22:25] Speaker 01:
But regardless, that is a factual dispute, which this court must assume at this stage, in my most favorable to the plaintiff, which outside of that declaration is not substantiated by the record.

[00:22:39] Speaker 01:
The data provided with the prison release to the public shows that there's a 91 day in the prison where then no one in that entire prison had COVID.

[00:22:48] Speaker 00:
Can I ask you the same question I asked your friend on the other side?

[00:22:51] Speaker 00:
You've cited to Turner versus Safley as the basis for the equal protection review.

[00:22:57] Speaker 00:
And normally we'd review equal protection for non, you know, for non suspect classifications under rational basis.

[00:23:07] Speaker 00:
So why in your view should Turner apply here?

[00:23:11] Speaker 01:
First, the law may be odd, but that's what Shakur Bishvira more generally held, that Turner applies.

[00:23:17] Speaker 01:
And the Fourth Circuit and King V. Rubenstein applied Turner to a class of one claim.

[00:23:22] Speaker 01:
And especially, there may be some political, like some policy motivations, given where people are particularly vulnerable in a prison, some heightened scrutiny should apply.

[00:23:32] Speaker 01:
But regardless, this court is bound by Shakur Bishvira.

[00:23:35] Speaker 00:
And was that a, but Shakur was a First Amendment religious discrimination claim, right?

[00:23:42] Speaker 00:
And we're not dealing with a religious discrimination or race-based discrimination or something else that might suggest heightened scrutiny.

[00:23:49] Speaker 00:
And so I think the argument on the other side is it's not Turner when you don't have those kind of particular claims.

[00:23:56] Speaker 00:
So tell me why Turner should apply to all prison cases.

[00:24:00] Speaker 01:
Especially here where there's a constitutional violation.

[00:24:05] Speaker 01:
I'm not sure.

[00:24:07] Speaker 01:
I'm not sure.

[00:24:10] Speaker 01:
I'm not sure.

[00:24:11] Speaker 01:
I'm not sure.

[00:24:13] Speaker 00:
I'm not sure.

[00:24:19] Speaker 00:
If you were to be required to argue equal protection under rational basis scrutiny, does your claim fail, do you think?

[00:24:26] Speaker 01:
No, because sending inmates to work is not a valid justification.

[00:24:33] Speaker 03:
But again, if we're looking under rational basis, we look at any possible justification, right?

[00:24:42] Speaker 03:
correct and In addition to any possible justification We have two declarations one from associate warden being and one that your client Thank you put in from Trenton Paul Harris, which says that Taken together people in nineteen

[00:25:06] Speaker 03:
in 9 rather had COVID and people who would be in the yard didn't and the only people working in the factory were from units with COVID.

[00:25:20] Speaker 03:
So again,

[00:25:21] Speaker 03:
That may not be a great reason, but it doesn't strike me as irrational.

[00:25:25] Speaker 03:
Why is it irrational to say it's okay to send them to work because it's only from the COVID units, but if we put them out on the yard, they're going to be mixing with units with people who didn't have COVID.

[00:25:38] Speaker 01:
Yeah, you and I was not a COVID unit.

[00:25:41] Speaker 01:
It's the defendants.

[00:25:44] Speaker 01:
There are other units that have COVID too.

[00:25:46] Speaker 01:
There were 72 positive cases in that prison by the end of December.

[00:25:51] Speaker 01:
And were they working in the factory?

[00:25:54] Speaker 03:
No.

[00:25:55] Speaker 03:
But that's what they were saying.

[00:25:56] Speaker 03:
They're saying, we did not send to the factory people from units who didn't have COVID, only the ones who did.

[00:26:03] Speaker 03:
So again, why is that an irrational reason for sorting the factory from the yard?

[00:26:12] Speaker 01:
Because between the end of June and the end of December, there are no known infections in unit nine.

[00:26:18] Speaker 01:
And during that period, other units were getting exercise.

[00:26:20] Speaker 01:
Unit nine was not.

[00:26:23] Speaker 00:
Can I ask you to turn to the state law claim themselves and state sovereign immunity?

[00:26:30] Speaker 00:
Why shouldn't the state law claims be dismissed under sovereign immunity?

[00:26:38] Speaker 00:
If Nevada statutes require that if you're suing a state official acting in their official capacity to name the state of Nevada itself and Nevada hasn't consented to suit, how can you bring the claim in federal court?

[00:26:53] Speaker 01:
Because the MAC made clear that it stated that self-executory causes of actions cannot be abridged or impaired by statute.

[00:27:01] Speaker 01:
Therefore, what the government liability act says is irrelevant for constitutional claims, which is what we have here.

[00:27:07] Speaker 01:
And as shown by MAC itself,

[00:27:09] Speaker 00:
So walk me through that, because it wasn't clear to me what that meant.

[00:27:13] Speaker 00:
If you have a state constitutional provision, let's say, cruel and unusual punishment, why is that right being impaired by a state requirement that you name the state of Nevada in a suit against it?

[00:27:28] Speaker 00:
because it controls the... It's a procedural rule.

[00:27:32] Speaker 00:
It's saying if you want to bring a claim, you have to join this party to it.

[00:27:36] Speaker 00:
So why, whether or not it's self-executing seems to me a little bit beside the point.

[00:27:42] Speaker 00:
It's a procedural rule to say the state has to be included in the lawsuit.

[00:27:45] Speaker 00:
Why is there any impairment of the constitutional right?

[00:27:49] Speaker 01:
MAC itself was also a suit against a prison.

[00:27:52] Speaker 01:
It was against the Nevada prison.

[00:27:53] Speaker 01:
And they're the plaintiffs and not named the state of Nevada as a defendant.

[00:27:58] Speaker 00:
But that was about an impairment of a federal interest.

[00:28:00] Speaker 00:
So here, I'm just not sure.

[00:28:04] Speaker 00:
Walk me through it.

[00:28:07] Speaker 00:
Map out, what is it about naming the state that would impair someone's interest in raising a claim?

[00:28:18] Speaker 01:
It just puts a requirement on it.

[00:28:21] Speaker 01:
And again, Mack was actually a case in federal court where the question was certified, but it was a suit against the prison and the state of Nevada was not named as a defendant.

[00:28:33] Speaker 03:
So, counsel, if we rejected your argument and putting aside sort of other issues like claim splitting, this particular state court claim,

[00:28:48] Speaker 03:
because Nevada can be sued in state court.

[00:28:51] Speaker 03:
This could be brought in state court, right?

[00:28:55] Speaker 01:
It could be brought in state court, but given that he has federal constitutional claims.

[00:28:59] Speaker 01:
Well, they could have been brought in state court too, right?

[00:29:02] Speaker 01:
Correct.

[00:29:02] Speaker 03:
But he has the opportunity to choose his forum.

[00:29:04] Speaker 03:
Well, you're right.

[00:29:05] Speaker 03:
He has his opportunity to choose his forum.

[00:29:08] Speaker 03:
That's absolutely true.

[00:29:10] Speaker 03:
But part of forum choosing is taking into account what the rules are of the particular forums.

[00:29:19] Speaker 03:
And here we have 41.031 that says the state of Nevada does not waive its immunity from suit conferred by the 11th Amendment.

[00:29:28] Speaker 03:
So, I mean, that's part of the calculus that goes into where you bring your suit, right?

[00:29:37] Speaker 03:
Yeah, but it's not a suit against Nevada.

[00:29:39] Speaker 03:
It's a suit against the individual prison officer.

[00:29:42] Speaker 03:
But Nevada gets to define how its state laws work, right?

[00:29:49] Speaker 01:
Correct.

[00:29:51] Speaker 03:
And Nevada says you can't sue basically the warden for a state law claim unless you name the state, right?

[00:30:01] Speaker 01:
But the Nevada legislature can't supersede the constitutional requirements and mandates.

[00:30:11] Speaker 01:
Again, this is just like in MAC where the plaintiff sued an individual officer of a prison.

[00:30:18] Speaker 01:
He did not name the prison as a defendant.

[00:30:22] Speaker 01:
MAC held that was fine.

[00:30:23] Speaker 00:
But MAC was not about sovereign immunity, right?

[00:30:26] Speaker 00:
Did sovereign immunity come up in MAC?

[00:30:31] Speaker 00:
I believe... I thought it was a certified question.

[00:30:34] Speaker 00:
So it wasn't a sovereign immunity case, was it?

[00:30:39] Speaker 01:
No, but it's exactly the same case as here.

[00:30:41] Speaker 01:
The question part of the question was qualify immunity.

[00:30:44] Speaker 01:
Qualify immunity doesn't apply to sovereigns.

[00:30:47] Speaker 01:
And the court held that the individual officers were liable because they were not sovereigns.

[00:30:53] Speaker 01:
They were individual officers who were suing their individual capacity.

[00:31:02] Speaker 01:
And finally, I would just go back to the record

[00:31:11] Speaker 01:
When conceived in the light most favorable to the plaintiff, there is no substantiation for the near complete denial that he experienced.

[00:31:22] Speaker 01:
And this court has been clear that emergencies can't be used to

[00:31:35] Speaker 01:
allow prisons to use that as a justification when the denial was otherwise motivated.

[00:31:40] Speaker 01:
And here, as the district court found, a jury could find that it was pretextual, and that the true motivation was staffing considerations and desiring to put Mr. Cardenas and Ellis to work.

[00:31:55] Speaker 01:
And that is not sufficient to deny someone outdoor exercise.

[00:32:02] Speaker 01:
And unless this court has further questions, I would.

[00:32:05] Speaker 01:
All right, we thank council for their argument.

[00:32:07] Speaker 03:
Thank you.

[00:32:08] Speaker 03:
And council will give you two minutes for rebuttal.

[00:32:15] Speaker 04:
I'd like to thank the court for allowing me to speak again and giving me this little bit of extra time.

[00:32:20] Speaker 04:
I want to make one thing clear.

[00:32:22] Speaker 04:
Opposing counsel has represented several times and referred to data that's nowhere in the record that supposedly some law school collected that was on some website.

[00:32:31] Speaker 04:
It doesn't say how they collected it, where they got it from, how complete it was or anything.

[00:32:36] Speaker 04:
It's clearly inadmissible and cannot be considered by this court.

[00:32:39] Speaker 04:
And so I just want to make sure that the court's aware of that.

[00:32:42] Speaker 04:
The second thing I want to emphasize again is that, you know, when we're talking about qualified amenity, you must find a case that would put Warden Johnson on notice beyond debate that he was violating clear established law.

[00:32:58] Speaker 04:
He can't do that because this court told Warden Johnson that otherwise meaningful recreation could satisfy

[00:33:07] Speaker 04:
You can't say, well, and a decision to provide him with those additional things to violate it would just be saying, you know, it's not beyond debate that he wasn't given that, that wouldn't be that.

[00:33:21] Speaker 04:
That's the standard you have to meet.

[00:33:22] Speaker 04:
You have to meet the standard of saying that beyond debate, he'd have to know that not giving him time in prison industry didn't satisfy that requirement.

[00:33:28] Speaker 04:
Second, you have to give the actual knowledge requirement.

[00:33:32] Speaker 04:
You've got to show that, with respect to this, you've got to show, hey, where has there been a case like COVID-19?

[00:33:38] Speaker 04:
Which there isn't, because there wasn't anything like COVID-19, where this court didn't give him discretion to do it just exactly how he did it.

[00:33:44] Speaker 04:
And I want to remind the court of Freehot, which wasn't cited in our brief, that says, Freehot, this court determined that COVID-19 pandemic was an unprecedented and evolving health problem.

[00:33:54] Speaker 04:
and that constitutional standards recognize that prison officials must have discretion in addressing complex problems such as COVID-19 because a constitutional line cannot be drawn based on a court's idea of how to operate a detention facility, especially when the prison here undisputedly was attempting to protect inmates.

[00:34:13] Speaker 04:
And since the prison was doing their job of trying to protect Cardenis Aurelius, and clearly did it because he did contract COVID-19, I think this court has to rule in favor of Ward Johnson on all claims.

[00:34:24] Speaker 04:
And I appreciate your time.

[00:34:26] Speaker 04:
Thank you very much.

[00:34:27] Speaker 03:
All right.

[00:34:27] Speaker 03:
We thank counsel for their arguments.

[00:34:30] Speaker 03:
We particularly thank counsel for the plaintiff for doing an excellent job as a law student.

[00:34:38] Speaker 03:
I thank counsel for their arguments.

[00:34:40] Speaker 03:
The case just argued is submitted and with that we are adjourned for the day.