[00:00:00] Speaker 01:
is represented by pro bono counsel.

[00:00:02] Speaker 01:
So just so that I don't forget, I want to thank in advance people that serve the court pro bono.

[00:00:09] Speaker 01:
It's helpful to the court to have, when someone's pro se, to have adequate briefing for the court to be able to decide.

[00:00:16] Speaker 01:
But we equally appreciate everyone that comes here for argument.

[00:00:21] Speaker 01:
But it is helpful to the court when we have counsel on both sides.

[00:00:26] Speaker 01:
So thank you in advance.

[00:00:28] Speaker 01:
everyone for your argument.

[00:00:31] Speaker 01:
You can state your record, your appearance for the record, and proceed.

[00:00:36] Speaker 01:
Good morning.

[00:00:38] Speaker 00:
Good morning, Your Honours.

[00:00:39] Speaker 00:
May it please the Court.

[00:00:40] Speaker 00:
Voucher Swart for plaintiff appellant, Rosario Medina.

[00:00:43] Speaker 00:
I would like to- Sorry, how do you pronounce your last name?

[00:00:45] Speaker 00:
Swart?

[00:00:46] Speaker 00:
Zwart.

[00:00:47] Speaker 01:
Zwart?

[00:00:47] Speaker 00:
Yeah, it's Dutch.

[00:00:48] Speaker 00:
OK, thank you.

[00:00:49] Speaker 00:
Not a very easy name.

[00:00:51] Speaker 00:
I would like to reserve aspirationally two minutes for rebuttal.

[00:00:54] Speaker 01:
All right, thank you.

[00:00:55] Speaker 00:
We are here because the defendants punished Mr. Medina for his status as a sex offender.

[00:01:00] Speaker 00:
To start with the Rule 12C error, after Medina was violently attacked and anally raped, Mr. Medina walked into the nurse's clinic bleeding from his face with a concussion, bruises, clouded eye.

[00:01:12] Speaker 01:
Something kind of weird in the record.

[00:01:14] Speaker 01:
And just because you only have 10 minutes, I want to sort of jump to that, that the nurse that is the subject matter of this particular lawsuit, it appears that it wasn't necessarily identified below, but it appears she didn't see your client until 10 months after this attack.

[00:01:34] Speaker 01:
Am I correct on that?

[00:01:36] Speaker 00:
It's it's unclear from record, but we're here on a rule 12 c motion to dismiss So we're just for durst medina.

[00:01:42] Speaker 01:
We're just considering the plenics and the pleadings at the second pleading the second pleading had that incident report attached to it which shows a 10 months difference and then It's when you do the third one.

[00:01:55] Speaker 01:
It's everything's incorporated So it seems like it's pretty easily before us am I wrong?

[00:02:02] Speaker 00:
I don't believe there's a full record in terms of the timing exactly when I agree that in the first few complaints, there's an incident report showing that Nurse Medina saw him 10 months later, but it's unclear.

[00:02:15] Speaker 00:
A nurse saw him right after the incident when he walked into this clinic.

[00:02:19] Speaker 01:
That's what she said before us.

[00:02:21] Speaker 00:
We're here on a Rule 12C motion, judgment, and pleadings.

[00:02:24] Speaker 00:
We're taking, we're liberally construing the allegations in favor of Mr. Medina.

[00:02:30] Speaker 01:
I guess I'm sort of saying it's the elephant in the broom.

[00:02:32] Speaker 01:
that someone did the government figure that out on appeal or something?

[00:02:36] Speaker 00:
Well, I think it's critical that they didn't raise this before the district court.

[00:02:38] Speaker 00:
They waited on appeal to raise this issue.

[00:02:41] Speaker 00:
If they wanted to dismiss on these grounds, they should have moved for summary judgment.

[00:02:45] Speaker 00:
And I think it's important to take into account Mr. Medina was proceeding pro se, and he didn't have an opportunity to conduct any discovery in terms to the medical records, who saw him and when.

[00:02:54] Speaker 00:
And I think if there is a dispute as to the nurse and the timing, that's something for the district court to resolve below.

[00:03:00] Speaker 00:
when, if Mr. Nino is represented by council, he can conduct discovery.

[00:03:04] Speaker 03:
And I also want to point out that... It sounded like you just conceded that the incident report does disclose that Nurse Yamazaki did not treat Mr. Nino on the date of the rape.

[00:03:19] Speaker 03:
And if you did, then if we find that that report is incorporated by reference because it was attached,

[00:03:25] Speaker 03:
to the second amended complaint, which was then incorporated to the third amended complaint, then the issue is resolved, right?

[00:03:32] Speaker 00:
I'm sorry, Your Honor.

[00:03:33] Speaker 00:
I didn't mean to imply that I conceded that.

[00:03:34] Speaker 00:
But I think that if there is a dispute, the district courts resolve that at discovery for that evidence.

[00:03:39] Speaker 00:
I don't think that that report shows that Mr. Medina was seen by a nurse right after the attack.

[00:03:47] Speaker 00:
And the allegations state plainly that was nurse Yamasaki.

[00:03:50] Speaker 00:
If the report indicates Yamasaki saw him 10 months later, it could be a follow up

[00:03:53] Speaker 00:
visit where she saw him again.

[00:03:56] Speaker 00:
So I don't think it's resolved from that report.

[00:04:01] Speaker 03:
Why couldn't we find, I'm going to call it the motion for summary judgment medical report just for clarity.

[00:04:07] Speaker 03:
If we find that either Mr. Medina's allegations about fabrication by Nurse Yamazaki in the medical reports is very frequently

[00:04:22] Speaker 03:
Discussed throughout the third amended complaint, then why can't we find those motion for summary judgment medical reports?

[00:04:29] Speaker 00:
incorporated by reference Well, that's a good question judge co I don't think I've really thought this that through but Is your point that because there's There's a fabrication that the report isn't correct or what what sorry can you help me understand your question?

[00:04:51] Speaker ?:
I?

[00:04:51] Speaker 03:
So, if Mr. Medina, which he does in the operative complaint, alleged that Nurse Yamazaki fabricated the contents of her medical report, and that is discussed throughout the complaint, then why isn't that medical report that Mr. Medina alleges was fabricated, incorporated by reference?

[00:05:13] Speaker 03:
Thus, we could consider which nurse treated Mr. Medina

[00:05:19] Speaker 03:
on the date that he claims he was raped versus 10 months later?

[00:05:22] Speaker 00:
Well, if you're taking the allegations that it's all fabricated, it's hard to establish which nurse saw him and when and what is actually true.

[00:05:29] Speaker 03:
But he doesn't allege that the identity of the nurse was fabricated, right?

[00:05:34] Speaker 03:
He just says, what they reported I said, which he said I slipped in the shower on the date of the day he says he was raped.

[00:05:44] Speaker 03:
And then he didn't report that he was raped until 10 months later.

[00:05:48] Speaker 00:
I think if the the reason we don't I don't want to get into it too much is because I think the record is unclear after he was beat up after he was raped he saw a nurse and that nurse denied treatment if there's an issue.

[00:05:59] Speaker 03:
Are you saying that he was on the date he was raped he was denied treatment because.

[00:06:05] Speaker 03:
He wasn't given a sexual assault rape when he didn't say he had been raped?

[00:06:11] Speaker 00:
I mean, is that the claim?

[00:06:14] Speaker 00:
Well, I believe we're almost converting the record into a dispute of fact.

[00:06:19] Speaker 00:
And as a motion for summary judgment, I think we're still on rule 12C, please, and we're taking the allegations as true.

[00:06:24] Speaker 00:
The nurse, he was attacked, he entered the clinic, and he was bleeding.

[00:06:29] Speaker 00:
He had all this pain.

[00:06:30] Speaker 00:
He had been anally raped.

[00:06:31] Speaker 00:
He was bleeding from his rectum.

[00:06:32] Speaker 00:
And the nurse denied him treatment based on that status.

[00:06:36] Speaker 00:
The records, if you want to get into the records, also records show a nurse saw him right after this attack.

[00:06:42] Speaker 00:
If there's a dispute about who the nurse is, that should be resolved through discovery.

[00:06:46] Speaker 00:
He should have opportunity to conduct discovery before the district court determine to clear up that timeline.

[00:06:51] Speaker 00:
to clear up the identity of the nurse, to clear up who saw him.

[00:06:54] Speaker 01:
At page 117 of the excerpts of record, there's an incident report.

[00:06:59] Speaker 01:
The report indicates that when the rape occurred at the South facility, plaintiff did not tell a South facility nurse about the incident.

[00:07:07] Speaker 01:
But then, 10 months later, when plaintiff was at the North facility, he told nurse Yamasaki, the incident report is attached to the plaintiff's second amended complaint.

[00:07:16] Speaker 01:
And the plaintiff's third amended complaint specifically states,

[00:07:20] Speaker 01:
on the caption page that it adopts and incorporates all exhibits from the second amended complaint.

[00:07:26] Speaker 01:
So isn't the 10-month delay allegation part of the pleadings and why can't we consider it?

[00:07:32] Speaker 00:
I still believe that's that's construing the facts in favor of the defendants and we're still out of liberal pleading.

[00:07:37] Speaker 00:
It's a pro se complaint.

[00:07:38] Speaker 00:
He's not represented by attorney.

[00:07:39] Speaker 00:
I agree if he was represented by attorney and you drafted this potentially you could construe these facts in favor of the defendants but I think it's important to resolve that

[00:07:46] Speaker 00:
the defendants not raise these issues before the district court.

[00:07:49] Speaker 00:
The district court's error was merely considering a Rule 12C motion on the pleadings.

[00:07:55] Speaker 01:
Okay, so now regarding the motion to summary judgment ruling, you argue we should vacate the district court summary judgment ruling, but under what authority can we vacate a summary judgment order that dealt with other defendants under a theory that Nurse Yamaguchi

[00:08:12] Speaker 01:
Yamasaki might someday file an MSJ that might make similar arguments as those other defendants.

[00:08:20] Speaker 01:
It feels pretty speculative to me.

[00:08:22] Speaker 00:
Well, ultimately, I admit it's an equitable argument, essentially, that the Prison Litigation Reform Act is a system-wide determination.

[00:08:29] Speaker 00:
It applies to all the entire detention facility.

[00:08:32] Speaker 00:
It's not an individual defendant by individual defendant determination.

[00:08:35] Speaker 00:
And it's important to remember that the

[00:08:38] Speaker 00:
This court did not resolve the merits of the prison litigation reform act.

[00:08:42] Speaker 00:
So there's no determination based on evidence that the grievance system is unavailable to Mr. Medina.

[00:08:49] Speaker 00:
This court granted motion for summary judgment because Mr. Medina did not present any evidence.

[00:08:54] Speaker 00:
So on remand, Mr. Medina could marshal ample evidence that the system was unavailable, but that's a system-wide determination, so you basically have a conflict based on evidence showing that the system wasn't available through intimidation,

[00:09:07] Speaker 00:
and harassment, but we have this prior ruling not based on any evidence, just based on the fact that he did not present any evidence.

[00:09:13] Speaker 00:
So there's a conflict there, and I think on remand it would make sense to have one hearing on the entire system.

[00:09:21] Speaker 03:
Can I ask you, the problem I have with the incident report is that Mr. Medina alleges that the incident report was a cover-up in that

[00:09:35] Speaker 03:
Cover-up, code of silence, obstruction of justice occurred on May 30th, 2017, the date of the incident report that one of the many failures was that they didn't properly report.

[00:09:45] Speaker 03:
These officers who drafted the incident report didn't accurately report the complainant's testimony or change it in order to cover up the misconduct.

[00:09:55] Speaker 03:
The officer defendants on May 30th, 2017 fabricated statements that Medina never made to any of them.

[00:10:00] Speaker 03:
So would that be a challenge that we have

[00:10:05] Speaker 03:
we might have with relying on the incident report.

[00:10:09] Speaker 03:
And it also doesn't name the nurse that Mr. Medina saw on the day of the raid.

[00:10:14] Speaker 00:
I think that's correct, Your Honour.

[00:10:15] Speaker 00:
I think there's just a lot of uncertainty about what exactly was recorded, who said what, who saw him and when.

[00:10:20] Speaker 00:
So I think just looking at the allegations and the complaints

[00:10:24] Speaker 03:
Is sufficient for deliberate indifference to him I want to save at least 30 start But why if mr. Medina attached some of the medical reports to his second-amended complaint which was incorporated to the third amendment complaint Why can't we then consider the rest of the medical reports?

[00:10:41] Speaker 00:
Well, I'd like in that instance it'd be nice to have all the reports from the beginning of on like this is to have

[00:10:46] Speaker 00:
a clear picture of the timeline of what exactly happened.

[00:10:49] Speaker 00:
And I think that's appropriate for the district court to consider.

[00:10:51] Speaker 00:
If they want to raise that summary judgment, they're free to do that.

[00:10:54] Speaker 00:
But I really think there should be an opportunity to conduct discovery on remand so we can get a really clear picture of what happened and when.

[00:10:59] Speaker 00:
I don't think that's appropriate or rule 12C motion.

[00:11:03] Speaker 00:
And my time's almost up, and I would like to.

[00:11:04] Speaker 03:
Sorry, can I ask for one more last question?

[00:11:07] Speaker 03:
Yes, no.

[00:11:07] Speaker 03:
OK.

[00:11:07] Speaker 03:
Another thing that could be a little worried about is that.

[00:11:09] Speaker 03:
Thank you.

[00:11:10] Speaker 03:
Thank you for letting me ask this last question.

[00:11:12] Speaker 03:
One thing that concerns me

[00:11:13] Speaker 03:
is that Mr. Medina did four different complaints from April 16, 2019 through May 8th of 2020.

[00:11:21] Speaker 03:
And he never in any of those alleges that Nurse Yamasaki sexually assaulted him.

[00:11:27] Speaker 03:
But then all of a sudden, April 13, 2021, he's now saying she sexually penetrated him with her finger digitally.

[00:11:37] Speaker 03:
He repeats that again, January 20th, 2022.

[00:11:41] Speaker 03:
And by the notice of

[00:11:43] Speaker 03:
Appeal he's now saying he's gonna file criminal charges against her You know there is kind of a there should be a truth-seeking mission here and when You know when I see no allegations of sexual assault by a nurse for what?

[00:12:02] Speaker 03:
Multiple four different complaints, and then all of a sudden.

[00:12:05] Speaker 03:
I'm saying she raped me like you know at a certain point I

[00:12:11] Speaker 03:
I mean he ends the notice of appeal with the plaintiff intends to file criminal sexual assault charges against nurse Yamazaki with a DA's office shortly.

[00:12:22] Speaker 03:
Like how are we supposed to?

[00:12:24] Speaker 00:
I think that's a great question Judge Coe.

[00:12:27] Speaker 00:
I think it's the difficulty of proceeding of pro se complaints.

[00:12:30] Speaker 01:
No, but telling the truth is not something that you need a lawyer for.

[00:12:35] Speaker 01:
No, but as I understand it, I mean, there's some things that lawyers are very helpful and you're doing all of the helpful lawyer work, but there are just certain things like the elephant in the room is there's really no evidence that that she didn't see him till 10 months later.

[00:12:50] Speaker 01:
And then what Judge Coe is saying, then he comes up with these fantastical arguments that now suddenly the nurse sexually assaulted him.

[00:13:00] Speaker 00:
To respond to Judge Koh's question, I believe the allegation of the sexual assault is when he was examined that she kind of didn't kind of consensually insert her finger into his anus when she was examining him.

[00:13:14] Speaker 00:
So that's kind of where the sexual assault allegation comes from, where he wasn't, you know, that was not a treatment.

[00:13:19] Speaker 01:
But first he faults her for she doesn't do x-rays, she's laughing allegedly and not taking them seriously on any of this.

[00:13:26] Speaker 01:
And then over time, when the judge keeps saying, you don't have enough, you don't have enough, then it comes up with it.

[00:13:33] Speaker 01:
That's not the kind of thing that you forget in the first instance.

[00:13:39] Speaker 00:
Potentially, Your Honor, but I think we should just be looking at this as a 12C motion on a third amendment of complaints, and those extra allegations are not within the court's consideration for this appeal.

[00:13:49] Speaker 00:
And I know my time's far gone, so.

[00:13:51] Speaker 01:
All right, well, let me find out if any of the other judges have questions.

[00:13:54] Speaker 01:
Okay, we don't, so I'll give you your two minutes on rebuttal.

[00:13:57] Speaker 01:
Thank you, I appreciate that.

[00:13:58] Speaker 01:
Okay, thank you.

[00:14:04] Speaker 01:
Okay, good morning.

[00:14:05] Speaker 01:
Good morning.

[00:14:06] Speaker 01:
Are you ready?

[00:14:07] Speaker 02:
Yes, Your Honor.

[00:14:08] Speaker 02:
May it please the court, Elise Herr for appellees Nurse Yamasaki and officers Dubois, Dubin, and Delatory.

[00:14:15] Speaker 02:
First, I would like to address why the District Court correctly dismissed the appellant's claim for deliberate indifference to medical needs for Nurse Yamasaki.

[00:14:23] Speaker 02:
And second, I will touch upon the District Court correctly entering judgment in favor of appellee officers for failure to exhaust his administrative remedies under the Prison Litigation Reform Act.

[00:14:34] Speaker 01:
Well, it seems like this became a different case on appeal.

[00:14:38] Speaker 01:
Were you the one that figured out that this Nurse Yamasaki was 10 months later?

[00:14:42] Speaker 01:
I mean, that wasn't argued to the District Court, right?

[00:14:45] Speaker 02:
Yes, your honor.

[00:14:46] Speaker 02:
It wasn't argued to the district court.

[00:14:49] Speaker 02:
I was not the attorney on that case.

[00:14:52] Speaker 02:
The case was transferred to my office after the motion for judgment on the pleadings was already filed.

[00:14:56] Speaker 02:
Someone finally read it?

[00:14:59] Speaker 02:
I don't know what happened before, but I think the reason why that there was no reference to the medical report as far as nurse Yamasaki was because at that time it was a motion to dismiss.

[00:15:10] Speaker 02:
So just basically, or a motion for judgment on the pleadings.

[00:15:13] Speaker 02:
just based on the fact that the plaintiff's allegations contained in his complaint were insufficient.

[00:15:19] Speaker 02:
So I think the attorney at the time was just arguing what was contained in the complaint.

[00:15:25] Speaker 03:
Which is what we're supposed to do, right?

[00:15:27] Speaker 03:
We're not supposed to look at anything beyond.

[00:15:30] Speaker 03:
A motion for judgment on the pleadings is the four corners of the complaint.

[00:15:33] Speaker 03:
So we're not supposed to look at anything else.

[00:15:35] Speaker 02:
Correct.

[00:15:37] Speaker 03:
And so how could we even look at whether the identity of the nurse on the date of the rape was the defendant?

[00:15:44] Speaker 02:
We can because it's actually in the appellant's record.

[00:15:47] Speaker 02:
He attached.

[00:15:49] Speaker 03:
But you just conceded on a motion for judgment on the pleadings.

[00:15:52] Speaker 03:
We only look at the four corners of the complaint.

[00:15:54] Speaker 03:
So we can't look at the full record and what came out during discovery at this stage.

[00:15:58] Speaker 02:
Actually, it wasn't provided in discovery.

[00:16:00] Speaker 02:
The appellant had attached it to his complaints.

[00:16:04] Speaker 03:
Well, when I look at what was attached to the complaint, I don't see anything that clearly shows who treated, right?

[00:16:10] Speaker 03:
If you look at the medical reports he attached or the incident report, I don't think that's clear.

[00:16:14] Speaker 02:
Your Honor, I can refer you to the appellant's exhibits attached to his First Amendment complaint and his initial complaint.

[00:16:23] Speaker 02:
That provides the incident report where it says that that was when he was seen by Nurse Yamasaki.

[00:16:30] Speaker 02:
It should be noted that it was Nurse Yamasaki that treated him 10 months later.

[00:16:34] Speaker 03:
But we have to take all of his allegations in his complaint as true.

[00:16:41] Speaker 03:
And he says this was fabricated.

[00:16:43] Speaker 03:
I mean, we can go through his allegations where he says this was cover-up, the officers who drafted this incident report fabricated this.

[00:16:54] Speaker 03:
So how do we do both?

[00:16:56] Speaker 03:
How do we both assume his allegations are true, that this is a fabricated report, and then yet take it for the truth of what's asserted in this report?

[00:17:07] Speaker 02:
Well, we can go back to the deficiency of the pleading itself.

[00:17:12] Speaker 02:
In order for the appellant to sufficiently plead his claims, he has to supply the four essential elements under the Gordon case, and he did not do so within the pleading.

[00:17:24] Speaker 03:
But I guess I have a concern then about the fourth element of the Gordon case.

[00:17:31] Speaker 03:
What case says that if a patient comes to a medical treating professional and says, I was just anally raped, I have bleeding out of my rectum,

[00:17:42] Speaker 03:
I have all this numbness and pain in my arm that you don't treat those injuries, and you don't do a sexual assault kit.

[00:17:51] Speaker 03:
I don't see how, as a matter of law, we find that's not deliberate indifference as a matter of law at the pleading stage.

[00:17:59] Speaker 02:
So I can refer you to the facts that were provided in appellant's complaint.

[00:18:06] Speaker 02:
Those facts were provided as appellant's perceptions of what he experienced immediately after the incident, not in how he presented in the nurse.

[00:18:14] Speaker 02:
The complaint actually states that he saw the nurse later that same day.

[00:18:19] Speaker 02:
There is no indication that the nurse was able to see him immediately after the incident, and it's appellant's own contention in his complaint that after the attack when he bled from the mouth, he went to the restroom, washed his face, and he also alleges that

[00:18:36] Speaker 03:
Wait, I'm sorry.

[00:18:37] Speaker 03:
Is the argument you're making that someone has to come to you instantaneously after a rate for you to get treated, but if you go later the same day, but a few hours later, it's a different treatment regimen?

[00:18:47] Speaker 02:
No.

[00:18:47] Speaker 02:
I'm sorry, Your Honor.

[00:18:50] Speaker 02:
The argument I'm trying to make is that when he presented himself to the nurse, there is no allegation that the nurse did not treat his immediate injuries.

[00:19:01] Speaker 02:
There is nothing in his complaint that says he presented to the nurse with his mouth bleeding or that he had anything secreting from his anus at the time.

[00:19:10] Speaker 02:
That was what he provided that he experienced after the incident.

[00:19:15] Speaker 02:
Now, when he presented himself to the nurse, I'm not saying that she should treat him any differently, but there was no indication that he had a bloody mouth or that the nurse did not treat his immediate injuries.

[00:19:32] Speaker 02:
What can be determined by the complaint is that appellant specifically provides that he was, quote, physically evaluated.

[00:19:38] Speaker 03:
I'm sorry.

[00:19:38] Speaker 03:
I'm looking at the third amendment complaint, and he's talking about noticing blood and white sticky secretion on the toilet paper after he wipes his rectum.

[00:19:47] Speaker 03:
I guess I'm unclear.

[00:19:48] Speaker 03:
What are you saying?

[00:19:49] Speaker 03:
You're saying that didn't.

[00:19:51] Speaker 03:
I'm unclear.

[00:19:53] Speaker 03:
What is your saying?

[00:19:54] Speaker 03:
What point are you making that Mr. Medina didn't allege these symptoms on the date of the rape?

[00:20:00] Speaker 02:
So I think there's a list of injuries that the appellant is claiming he sustained.

[00:20:06] Speaker 02:
But what I'm trying to focus on is that the nurse, there is no allegation that the nurse did not treat his immediate injuries.

[00:20:15] Speaker 02:
He actually stated that she did provide him with a physical evaluation.

[00:20:21] Speaker 03:
Okay, let's go to ER 159.

[00:20:24] Speaker 03:
This is a third amended complaint.

[00:20:27] Speaker 03:
Defendant Yamazaki intentionally refused to conduct an adequate examination, conduct a sexual assault kit used to detect DNA and other evidence of a sex violent victim.

[00:20:38] Speaker 03:
To accurately note, plaintiff's injuries, which include a head trauma, contusion, severe head bleeding, discomfort, clouded eyes, dizziness, plaintiff's old injury in the arm that was re-injured, which is suffering severe pain, numbness left forearm, weakness of the left hand grip, traumatic emotional distress from the rape that he suffered.

[00:20:56] Speaker 03:
I'm so unclear on what symptoms do you think Mr. Medina did not disclose to defendant Yamasaki?

[00:21:05] Speaker 02:
I'm not stating that he did not disclose some of those symptoms to nurse Yamasaki.

[00:21:10] Speaker 02:
What I am trying to provide is that the nurse did physically evaluate him, which is admitted by the appellant, and that she was taking notes when she was physically examining him.

[00:21:22] Speaker 02:
I think the allegation for him is that he just was not properly treated.

[00:21:26] Speaker 02:
He just concludes, I was not properly treated.

[00:21:28] Speaker 02:
There are no facts to support how he was not properly treated by the nurse.

[00:21:33] Speaker 01:
So if we look at Gordon factors, one of the factors is that there has to be causation.

[00:21:43] Speaker 01:
All right.

[00:21:44] Speaker 01:
And was, but I don't,

[00:21:48] Speaker 01:
see any allegations that nurse Yamasaki caused plaintiff's injuries.

[00:21:54] Speaker 01:
So is that is that what the district court relied on?

[00:21:59] Speaker 01:
What?

[00:21:59] Speaker 01:
How did the district court say?

[00:22:01] Speaker 02:
Find in favor of the nurse, the district court relied on the fact that the the allegations contained in appellants complaint was not sufficient because it

[00:22:15] Speaker 02:
did provide that the nurse physically evaluated the appellant and that the nurse was taking notes.

[00:22:26] Speaker 02:
And what amounted to the district court's ruling was that this did not rise to the level of a constitutional violation.

[00:22:34] Speaker 02:
If anything, it amounted to medical negligence at best.

[00:22:39] Speaker 02:
And so I think that was what the court relied on in the underlying complaint.

[00:22:44] Speaker 01:
Well, doesn't Gordon require a causation factor?

[00:22:48] Speaker 02:
Yes, it does.

[00:22:49] Speaker 02:
And so just to touch upon the Gordon factor as to the fourth element, it requires that the appellant must show that the nurse did not take certain measures causing the injuries.

[00:23:03] Speaker 02:
There is nothing in the complaint that says that this nurse caused him any injuries.

[00:23:08] Speaker 02:
It is clear that he received his injuries from an attack by other prisoners, that the nurse treated him, or at least physically evaluated him, took notes, and tried to, and there's no indication that she did not properly treat him, except for the conclusory statement that she did not properly treat him.

[00:23:24] Speaker 03:
But in McLaughlin, didn't we hold that delay that causes pain and anguish constitutes harm for a Section 1983 claim?

[00:23:34] Speaker 03:
If you look at, you know,

[00:23:36] Speaker 03:
Jet v. Penner, everything says the harm need not be substantial.

[00:23:40] Speaker 03:
Delay that causes unnecessary wanton infliction of pain, that's hunt, can constitute and satisfy the fourth element.

[00:23:51] Speaker 03:
And here he alleges that not treating, particularly the arm, and including not treating the rape, resulted in rectal bleeding for 10 months, that his arm

[00:24:03] Speaker 03:
pain worsened from not being treated.

[00:24:07] Speaker 03:
So why wouldn't that pain caused by delay of treatment not satisfy the fourth element of Gordon?

[00:24:17] Speaker 02:
I don't think that the appellant alleged that the nurse caused any of the injuries to begin with.

[00:24:27] Speaker 02:
And then as far as the delay or in treatment, the appellant never alleges that in his complaint, that due to his lack of treatment by the nurse, that he suffered any harm or further injuries.

[00:24:49] Speaker 03:
But by injuries, the case law says that having pain from delay of treatment

[00:24:56] Speaker 03:
can be an injury that's cognizable under the fourth element of Gordon.

[00:25:02] Speaker 02:
Yes, your honor.

[00:25:03] Speaker 02:
But I would argue that the appellant did not provide that in his complaint.

[00:25:07] Speaker 02:
He does not say that he suffered any injuries or harm or delay in treatment by the appellant.

[00:25:15] Speaker 02:
I mean, I'm sorry, the nurse.

[00:25:21] Speaker 03:
Well, I'm looking at the first cause of action.

[00:25:24] Speaker 03:
He says, as a direct result of these defendants' violations of plaintiff's constitutional rights, he has suffered pain and suffering, emotional distress, and other injuries from their failure to provide plaintiff with the necessary and required safety and medical needs.

[00:25:37] Speaker 03:
I mean, this was a pro se litigant.

[00:25:38] Speaker 03:
We should be construing it liberally.

[00:25:40] Speaker 03:
You think that's insufficient?

[00:25:43] Speaker 02:
Your honor, I think that that's just a generalized statement of what he says as far as he has numerous claims in his complaint.

[00:25:52] Speaker 02:
And he says, this resulted in my pain and suffering.

[00:25:59] Speaker 01:
So counsel, your friend on the other side is asking us to look at the MSJ ruling, which isn't before us.

[00:26:07] Speaker 01:
Do you want to respond to that?

[00:26:09] Speaker 02:
Yes, your honor.

[00:26:11] Speaker 02:
Appellant claims that if this court reverses the issue of deliberate indifference for the nurse for procedural reasons, the court should also reverse the trial court entering judgment in favor of the officers for failure to exhaust his administrative remedies.

[00:26:26] Speaker 01:
But that's not before us, is it?

[00:26:29] Speaker 02:
No, I would argue that it's not before you.

[00:26:31] Speaker 02:
I would state that the appellant conceded that there was no argument as to whether the trial

[00:26:38] Speaker 02:
court aired in any way regarding the MSJ ruling at all.

[00:26:43] Speaker 02:
There has to be some sort of authority or basis for an appeal.

[00:26:47] Speaker 02:
And here, the argument was just, well, if the court decides to reverse on Nurse Yamasaki's ruling, then the court should reverse on the MSJ.

[00:26:59] Speaker 02:
But the fact that Nurse Yamasaki, if it were to go back down to the trial court,

[00:27:07] Speaker 02:
there is no indication that she would even defend on the basis of PLRA.

[00:27:12] Speaker 02:
That's based on pure speculation that this would be one of the defenses.

[00:27:16] Speaker 02:
But secondarily, if Nurse Yamasaki was to argue PLRA, that would not foreclose her ability to then argue what was insufficient as far as Nurse Yamasaki goes.

[00:27:31] Speaker 03:
Can I ask you about one more statement in a third amendment complaint says the defendants caused the plaintiff's injuries pain and suffering and arbitrarily refused to document and provide medical health care services Is the government's position that that's not sufficient because it doesn't explicitly say the delay caused the pain and suffering I'm just wondering what

[00:27:56] Speaker 03:
I assume you think that's still insufficient as an allegation for the fourth element of Gordon.

[00:28:01] Speaker 03:
Is that right?

[00:28:01] Speaker 03:
Yes.

[00:28:02] Speaker 03:
Okay.

[00:28:02] Speaker 03:
And what is it that's inefficient?

[00:28:05] Speaker 03:
What is deficient about it?

[00:28:06] Speaker 03:
It doesn't explicitly reference delay?

[00:28:10] Speaker 02:
No, Your Honor.

[00:28:11] Speaker 02:
I think that when there's a generalized statement that there's pain and suffering, I've been caused pain and suffering from the number of

[00:28:25] Speaker 02:
Defendants or appellees that were in contained in that complaint a generalized statement it is not sufficient.

[00:28:34] Speaker 02:
I think that the the complaint was very clear in that he was making his allegations in that complaint in Essentially the third amended complaint with paragraphs 26 and 27 he speaks about nurse Yamasaki What he how he presented to her?

[00:28:52] Speaker 02:
what his experience was with at that time.

[00:28:57] Speaker 02:
And that was it.

[00:28:58] Speaker 02:
The other statements that he made as far as generalized pain and suffering, that was as to all of his claims as far as numerous defendants and numerous claims that he made in his complaint.

[00:29:09] Speaker 03:
But which is the defendant that would have refused medical care?

[00:29:12] Speaker 03:
Not the correctional officers, right?

[00:29:15] Speaker 03:
It would have been Nurse Yamazaki.

[00:29:17] Speaker 02:
Yes.

[00:29:17] Speaker 02:
And so I would just direct your attention back to the incident report that was provided by the appellant is that the nurse Yamasaki was the one that treated him 10 months later after the incident.

[00:29:34] Speaker 02:
And so I would just ask the court to incorporate by reference the appellant's own exhibits that he provided in his complaint.

[00:29:42] Speaker 01:
All right.

[00:29:43] Speaker 01:
If just anyone have any additional questions.

[00:29:45] Speaker 01:
All right.

[00:29:46] Speaker 01:
We've taken you over, but by the time we give extra time both ways, it'll be about even.

[00:29:51] Speaker 01:
Thank you for your time, Your Honors.

[00:30:01] Speaker 00:
I just want to make a few quick points.

[00:30:04] Speaker 00:
First, as to the injury, if you look at expert record 154 of his Third Amendment Complaints, paragraph 16 as of Nurse Yamasaki, he alleges that her actions caused unnecessary wanton affliction of pain.

[00:30:16] Speaker 00:
So that's directly to the nurse.

[00:30:19] Speaker 00:
In addition,

[00:30:22] Speaker 00:
Essentially, Mr. Medina's showing up bleeding, he's injured, and there's no treatment.

[00:30:25] Speaker 00:
And that treatment, the lack of treatment causes further, it's very logical that causes further harm.

[00:30:31] Speaker 00:
Infection, bleeding, you have the specter of infectious disease.

[00:30:35] Speaker 00:
And that's very logical to infer.

[00:30:37] Speaker 00:
And at the pro se pleading standard, this complaint should only be dismissed if it's beyond doubt that the plaintiff can prove no set of facts.

[00:30:45] Speaker 00:
And I think the appellees didn't make any effort to show that's beyond doubt, that no set of facts can be proved.

[00:30:52] Speaker 00:
In addition, if we are looking at the attachments, there's doctor's notes about a wrist injury that even two years later he's still complaining about, and that's due to the attack and also due to the lack of care that he got in seeing that.

[00:31:05] Speaker 00:
So I think if you are considering some of those attachments, there's other evidence of continuing injuries that last far beyond the 10 months.

[00:31:14] Speaker 00:
And I appreciate the court's questions about all the attachments to the complaints.

[00:31:19] Speaker 00:
And I think they're excellent questions, but these weren't raised by the police.

[00:31:22] Speaker 00:
These weren't briefed.

[00:31:23] Speaker 00:
So if this is a big concern for the court, I would be happy to provide further briefing about what to do with these exhibits to the complaints.

[00:31:31] Speaker 00:
And I think it would be very helpful as a truth-seeking matter.

[00:31:35] Speaker 00:
I think ultimately, if we really want to come down to what this case is about, I think it should be remanded for discovery.

[00:31:40] Speaker 00:
We can exactly figure out who did what and when on a proper timeline.

[00:31:44] Speaker 00:
And here we're speculating on a very incomplete record on the pro se complaint with some attachments.

[00:31:49] Speaker 00:
I think that's not sufficient to dismiss at a Rule 12C stage.

[00:31:55] Speaker 00:
I think summary judgment is appropriate for this timeline issue and the nurse issue.

[00:31:59] Speaker 00:
And I appreciate the court's time with this case.

[00:32:02] Speaker 01:
Thank you very much.

[00:32:03] Speaker 01:
Thank you both for your helpful argument in this matter.

[00:32:05] Speaker 01:
And once again, thank you on behalf of the court in its entirety for doing pro bono work for the court.

[00:32:12] Speaker 01:
This matter will stand submitted.