[00:00:01] Speaker 04: Good morning. [00:00:02] Speaker 04: May it please the court. [00:00:02] Speaker 04: Becky James on behalf of the appellants. [00:00:06] Speaker 04: We'd like to reserve four minutes for rebuttal. [00:00:08] Speaker 04: We do, just to give the court a little bit of a roadmap, we do have three attorneys planning to argue today. [00:00:13] Speaker 04: As the court referenced, I'm planning to argue for seven minutes. [00:00:17] Speaker 04: And I will be addressing the Bivens and qualified immunity issues as they relate to the inadequate care claim. [00:00:24] Speaker 04: My co-counsel, Jennifer Markle, will take over at that point. [00:00:28] Speaker 04: and will focus, she'll focus in particular on the transfer issues and excessive force claim and anything else I miss. [00:00:35] Speaker 04: And Mr. Lawrence will be handling our rebuttal. [00:00:38] Speaker 03: Very well. [00:00:41] Speaker 04: This case is, this case is unique. [00:00:44] Speaker 04: Never before has the Supreme Court or this court or any circuit court in fact recognized a Bivens cause of action for pregnancy and pregnant inmates claim of inadequate prenatal care. [00:00:58] Speaker 04: The Supreme Court has cautioned repeatedly and heavily against creating new Bivens actions, and this is not the case to do so. [00:01:06] Speaker 04: This court recently considered the issue of expanding Bivens in the en banc consideration in Watanabe, which was a case relied upon by the district court and plaintiff in this case. [00:01:20] Speaker 04: Eleven members of the court dissented in that case on the denial of en banc. [00:01:26] Speaker 04: focusing primarily on the existence of alternative remedies available. [00:01:30] Speaker 04: And that issue, of course, is present here too. [00:01:31] Speaker 04: We have the same alternative remedies present here. [00:01:34] Speaker 04: And although the court did deny on Bonk and Watanabe, the members of the court did encourage the Supreme Court to take this case up. [00:01:43] Speaker 04: The petitioner has filed a petition for certiorari in that case, very recently raising two issues. [00:01:52] Speaker 04: One, the existence of alternative remedies and two, [00:01:55] Speaker 04: whether lesser or lesser injuries might still give rise to a Bivens action, an argument that it does not. [00:02:03] Speaker 04: I would urge the court if the court is considering, I mean first of all to read the cert petition, it's a good read, but also if the court is considering at all expanding Bivens in this case to perhaps wait and see what the court does in Watanabe because that case is pending before the Supreme Court. [00:02:21] Speaker 05: Is your argument that we should hold us in abeyance until we figure out whether or not the Supreme Court grants cert in Watanabe? [00:02:28] Speaker 04: I think so, unless the court could avoid the issue by deciding on unqualified immunity, for example. [00:02:33] Speaker 04: So if the court's not going to address the Bivens claim but finds it easier to resolve the case on unqualified immunity, I think the court could go ahead and decide that. [00:02:41] Speaker 05: But at this point, we do have to follow Watanabe. [00:02:43] Speaker 05: You would agree? [00:02:43] Speaker 04: At this point, the majority decision in Watanabe controls, yes. [00:02:47] Speaker 04: But this case is very distinguishable from Watanabe as well. [00:02:50] Speaker 04: In Watanabe, there actually was an illness, I mean an injury, excuse me, that was not treated. [00:02:58] Speaker 05: Why is the allegations of preeclampsia not enough here? [00:03:01] Speaker 04: Well, for one thing, the preeclampsia did not come up as a possibility until about April. [00:03:09] Speaker 04: There was no evidence, no allegations, excuse me, in the complaint that anyone knew that she was at risk for preeclampsia. [00:03:17] Speaker 04: before that time or even at that time that she told the defendants. [00:03:21] Speaker 04: The complaint doesn't allege what she really told anybody when. [00:03:27] Speaker 05: But the first time... So your argument is not that preeclampsia is not a serious condition. [00:03:31] Speaker 05: It's just that none of the defendants were aware of that. [00:03:34] Speaker 05: Well, she hasn't allege that the defendants were aware. [00:03:35] Speaker 04: She hasn't allege that the defendants were aware of that. [00:03:37] Speaker 04: I mean, no court has really addressed this issue. [00:03:40] Speaker 04: So is preeclampsia a serious medical condition? [00:03:43] Speaker 05: I think you should concede that. [00:03:44] Speaker 05: I think it's pretty serious. [00:03:46] Speaker 04: Right. [00:03:46] Speaker 04: Well, it's a condition. [00:03:47] Speaker 04: It is a condition. [00:03:48] Speaker 04: At least that is something beyond the pregnancy alone, which initially what she was concerned about, her concerns about her pregnancy really related to the lack of prenatal care leading up to that point. [00:03:59] Speaker 04: And when she talks about the five months, it isn't really five months, she did receive an ultrasound and did see a doctor in that time, but not seeing an OB-GYN, that was really her primary complaint in this case. [00:04:13] Speaker 04: There's no evidence, no allegations in the complaint about that any defendant was aware that she had preeclampsia or was at risk for it. [00:04:27] Speaker 04: And I think that, you know, the course plaintiff is trying to shoehorn this case into a Carlson claim and say it's not a new Bivens action. [00:04:35] Speaker 04: I would submit this is meaningfully different from Carlson. [00:04:38] Speaker 04: As I kind of just alluded to, it is a [00:04:43] Speaker 04: There's no injury or illness other than the preeclampsia which we just discussed that's alleged here, it's pregnancy. [00:04:51] Speaker 04: And she was seeking care for something that was really seeking preventive care. [00:04:55] Speaker 04: Assessment, monitoring, seeing an OBGYN is really preventive care. [00:05:00] Speaker 04: It makes that case very different from Carlson where there was an acute asthma attack that was left untreated and ultimately mistreated by the medical personnel. [00:05:11] Speaker 04: There was no direct denial of care by any defendant alleged here. [00:05:15] Speaker 04: What she really alleges is systemic failures, which is very different as well from any of the other cases where the failures, to the extent there was some failure in getting prenatal care, getting the prenatal care that she wanted, there's no allegation that anybody did that deliberately. [00:05:38] Speaker 04: you know, with the intent to prevent her from getting care, that anybody actually refused her care, which is also unlike Watanabe, where in Watanabe, the medical nurse, the staff nurse said, you know, you should stop being a crybaby. [00:05:56] Speaker 04: You're not going to the hospital. [00:05:57] Speaker 04: I mean, that's deliberate indifference. [00:05:58] Speaker 04: I mean, you know, you can see that being, at least that was the allegation in the case, and you can see that being a deliberate indifference case, but that is not our facts. [00:06:07] Speaker 04: That's just not our facts here. [00:06:09] Speaker 05: How do you do a standard also? [00:06:10] Speaker 05: I think in standard, through the grievance process, that was considered notice enough for deliberate indifference. [00:06:19] Speaker 04: In standard, there was no treatment. [00:06:22] Speaker 04: Again, there was an illness in standard. [00:06:25] Speaker 04: There was an illness that was not being treated, hepatitis C. And there was a reason, there were administrative reasons for not giving him the treatment that were not medical reasons, but that they thought he should be transferred, await his transfer. [00:06:37] Speaker 04: non-medical reasons for not getting him transferred and not getting him treated, excuse me, and he wasn't just challenging the policy there. [00:06:47] Speaker 04: There was a refusal to treat in that case, to treat an actual diagnosed illness in that case. [00:06:54] Speaker 05: But I guess my question would be then, because you're challenging that they don't provide a notice of her ailments, correct? [00:07:01] Speaker 04: They were not provided notice. [00:07:03] Speaker 05: But they do allege that she filed these grievances through the system. [00:07:06] Speaker 05: Why is that not sufficient? [00:07:08] Speaker 04: She filed a BP-9, but it's not clear that the BP-9 even articulated any specific illness or injury requiring treatment. [00:07:17] Speaker 04: So it doesn't really say. [00:07:19] Speaker 04: The BP-9 was also done in February. [00:07:21] Speaker 04: And at that point, she had already actually been sent out. [00:07:25] Speaker 04: She had an ultrasound. [00:07:25] Speaker 04: She had seen a doctor. [00:07:27] Speaker 04: And by March, she was seeing doctors. [00:07:29] Speaker 05: There was only one grievance filed? [00:07:31] Speaker 04: I think there was another one filed after the birth. [00:07:33] Speaker 04: Oh, after the transfer. [00:07:35] Speaker 04: After the transfer, I believe. [00:07:36] Speaker 05: So your position is that the grievance could be sufficient notice, but we just don't know what was said in that particular grievance. [00:07:43] Speaker 04: Exactly. [00:07:43] Speaker 04: We don't know what was said in that grievance and who received it other than Warden Dolgov. [00:07:50] Speaker 04: It was addressed to Warden Dolgov. [00:07:53] Speaker 04: As to the other defendants, there's no allegation that any of them received or were aware of that BP9. [00:08:01] Speaker 05: What about the sick calls though? [00:08:02] Speaker 05: The sick, sick, sick call? [00:08:04] Speaker 05: There were six, six, sick calls, sorry. [00:08:06] Speaker 04: Right, right. [00:08:06] Speaker 04: And again, we just don't know what was conveyed in those sick calls. [00:08:08] Speaker 05: So that, so your view would be that that could be sufficient to provide notice, but just because we don't know what was said, that's not enough to prove deliberate indifference. [00:08:17] Speaker 04: Well, right. [00:08:18] Speaker 04: I mean, that we don't, a sick call could be anything. [00:08:20] Speaker 04: I mean, a call just be, I mean, presumably it was to say, look, I'm pregnant and I want my, I want to see a doctor because I'm not getting my OPGYN. [00:08:30] Speaker 04: visits, but we really don't know what was in those sick calls or how specific they were. [00:08:36] Speaker 04: There's no allegation that she alleged that she pointed out to them that she was having symptoms that required immediate treatment. [00:08:45] Speaker 05: Should she be allowed to amend if they can prove what's in those sick calls or the, what do you call it, BP9? [00:08:52] Speaker 05: BP9. [00:08:53] Speaker 04: Your Honor, I have to admit, no. [00:08:55] Speaker 04: She's already amended this complaint. [00:08:56] Speaker 04: She's on her third amended complaint at this point. [00:08:59] Speaker 04: The third amended was actually filed after the notice of appeal in this case. [00:09:01] Speaker 04: So she's represented by a highly competent counsel who have had the opportunity to plead this. [00:09:09] Speaker 04: And I think the fact that the allegations are as vague as they are just reflects the reality of what she knows and what occurred and not just a pleading deficiency. [00:09:22] Speaker 03: Be mindful of your time. [00:09:24] Speaker 04: I am. [00:09:25] Speaker 04: So I would like to, I think, just move quickly to the qualified immunity issue. [00:09:31] Speaker 04: And for similar reasons, so there not being a, you know, a new Bivens action here, there really is no, there should be qualified immunity for these defendants. [00:09:41] Speaker 04: There really is no, there's no allegation here that supports the finding of a constitutional violation, much less one that is clearly established. [00:09:50] Speaker 04: And for there to be a constitutional violation, there's got to be deliberate indifference to a serious medical need, and that deliberate indifference must have caused harm. [00:10:00] Speaker 04: And we don't have either one here. [00:10:01] Speaker 04: Under the relevant pleading standards in Iqbal and Twombly, the second amended complaint doesn't adequately allege that constitutional violation. [00:10:09] Speaker 04: I'd say she submitted the sick calls. [00:10:12] Speaker 04: She expressed concerns about her pregnancy. [00:10:15] Speaker 04: But there's just not enough notice that there was any serious medical need. [00:10:18] Speaker 04: If there was a serious medical need, [00:10:20] Speaker 04: even at that time. [00:10:22] Speaker 04: Is pregnancy alone a serious medical need? [00:10:24] Speaker 04: Probably not. [00:10:25] Speaker 04: But if there's some complication that requires treatment, that wasn't alleged to have been made known to any defendant. [00:10:33] Speaker 04: And there's just no allegations that anyone was deliberately indifferent, unlike you do have conduct sometimes that reflects somebody's attitude. [00:10:41] Speaker 04: There's got to be a subjective intent of deliberate intent indifference. [00:10:45] Speaker 04: And that's nothing in here suggesting that anybody had that level of intent. [00:10:51] Speaker 04: She, there's also a lack of causation of any harm. [00:10:55] Speaker 04: This is very unlike other cases where, you know, in all the other pregnancy related cases that come up, the baby has died. [00:11:03] Speaker 04: Something has happened. [00:11:04] Speaker 04: Something has gone very wrong in the pregnancy and there are really cases dealing with how to handle a preterm, you know, situation and that just didn't happen here. [00:11:12] Speaker 04: When it did become emergent and they were concerned about the high blood pressure, she was taken to the emergency room and they induced labor. [00:11:19] Speaker 04: So everything did, you know, there's no evidence that there was any harm here that resulted from the delay. [00:11:29] Speaker 04: And there's certainly nothing constitutional. [00:11:31] Speaker 04: nothing clearly established, and I see my time is running out, and I will defer. [00:11:36] Speaker 03: Yeah, I mean, so actually, I think we went well over, because I think the timer was set at 15. [00:11:39] Speaker 03: I think you used 11 minutes. [00:11:40] Speaker 04: Oh, I'm so sorry. [00:11:41] Speaker 03: So here's what we're going to do, all right? [00:11:43] Speaker 04: I'm so sorry. [00:11:43] Speaker 03: I'm not going to penalize you two. [00:11:45] Speaker 03: I'm not going to penalize you. [00:11:46] Speaker 03: So you're going to get extra time, OK? [00:11:49] Speaker 03: All right, so you're going to go ahead and have four. [00:11:51] Speaker 03: You're going to have four for your rebuttal. [00:11:54] Speaker 03: And you're going to get, if you need it, counsel, you're going to get four extra minutes. [00:11:59] Speaker 04: Thank you, Your Honor. [00:12:07] Speaker 02: Aloha and good morning, Your Honors. [00:12:09] Speaker 02: I'm Jennifer Merkel. [00:12:10] Speaker 02: I'm here representing Nancy McKinney, Monte Wilson, Saeed Hosseini, Alessio Ricoco, and Gregory Barnes. [00:12:19] Speaker 02: So I want to start by just reiterating that we combined our argument for today for your convenience. [00:12:25] Speaker 02: I'm going to try and focus specifically on some of the more novel issues that are specific to one of my clients, Monte Wilson. [00:12:32] Speaker 02: But as an overall statement, I want to remind the court that what we're actually assessing is whether or not the complaint here established a claim of cruel and unusual punishment. [00:12:43] Speaker 02: The vehicle for that should be through alleged deliberate indifference to a serious medical need for treatment. [00:12:50] Speaker 02: In answer to your question earlier, Your Honor, I do believe that pregnancy itself would not meet the constitutional legal definition of a serious medical need for treatment. [00:13:02] Speaker 02: It's a natural process. [00:13:03] Speaker 02: Women across the world have [00:13:06] Speaker 02: give birth without intervention. [00:13:08] Speaker 05: She's alleging complications from that pregnancy. [00:13:10] Speaker 02: Yes, and I was getting to that, Your Honor. [00:13:11] Speaker 02: She actually did not allege any diagnosed complication that required treatment. [00:13:17] Speaker 02: On paragraph 49 of the second amended complaint she did indicate that at that point there was some suggestion that she may have [00:13:26] Speaker 02: preeclampsia, which is high blood pressure, chronic high blood pressure accompanied by a protein in the urine, which could lead to serious harm. [00:13:38] Speaker 02: Obviously, you know, that's the only allegation we have before us in the second amended complaint. [00:13:42] Speaker 02: So she wasn't actually diagnosed with preeclampsia. [00:13:44] Speaker 02: nor is there any indication that preeclampsia required any specialized treatment. [00:13:49] Speaker 02: There's no allegations in the second medical complaint. [00:13:52] Speaker 05: Then she alleged weight loss, regular loss of amniotic fluid, cramping, pain. [00:13:57] Speaker 05: Yes. [00:13:59] Speaker 02: Those are serious. [00:14:00] Speaker 02: Those are symptoms. [00:14:01] Speaker 02: So symptomology that requires her to go see medical. [00:14:05] Speaker 02: And I would just point out that the second amended complaint includes a laundry list of times where she did seek and obtain medical treatment, although obviously her lack of full exposition of what happened during those encounters is notable. [00:14:21] Speaker 02: But obviously, she only indicated what she chose to recitate. [00:14:27] Speaker 02: In the electronic record, pages 80, 90, 90, paragraphs 3 to 6, 96 to 97, 98, she saw Dr. Smith. [00:14:35] Speaker 02: She saw Dr. Fish. [00:14:36] Speaker 02: She had ultrasounds done. [00:14:37] Speaker 02: She saw Dr. Eaton in the ER, who, as we know, in the complaint, she alleged said, there's nothing for me to do. [00:14:44] Speaker 02: Why? [00:14:44] Speaker 02: Because she wasn't presenting with a serious medical need that required treatment. [00:14:48] Speaker 02: She was presenting with a pregnancy for which routine medical care would have been appropriate. [00:14:54] Speaker 02: And that would, in this day and age, include [00:14:57] Speaker 02: consultation with an OB-GYN, as the OB-GYN determined. [00:15:00] Speaker 05: Well, you can see, though, if she had preeclampsia and your clients knew about it, that would be a deliberate indifference if they did nothing. [00:15:07] Speaker 02: No. [00:15:08] Speaker 02: If she had preeclampsia and the clients knew about it, and the treatment for preeclampsia is bed rest, [00:15:17] Speaker 02: which is the treatment for preeclampsia. [00:15:19] Speaker 02: And they did something to prevent her from having bed rest. [00:15:22] Speaker 02: They compelled her to work. [00:15:24] Speaker 02: They made her walk ridiculous amounts. [00:15:27] Speaker 02: Then we might have a deliberate indifference claim, Your Honor. [00:15:29] Speaker 02: I would acknowledge that. [00:15:31] Speaker 02: But because they are denying her access to her treatment, which would be the bed rest. [00:15:35] Speaker 02: But simply having preeclampsia and being aware of that is not in and of itself a constitutional violation. [00:15:43] Speaker 02: So, Your Honor, I would also just again, I'm just trying to generally give some more context. [00:15:50] Speaker 02: The other issue that I would like to point out here, what most distinguishes this situation as to mostly my defendants, but as to all defendants, is that [00:16:00] Speaker 02: There was a class action pending throughout the entire time of this pregnancy, a class action which the record demonstrates. [00:16:07] Speaker 02: The judge was aware of the class council represented to the judge in one of the hearings that this issue would be covered by the class action and the court proceeded to prescribe their individual. [00:16:20] Speaker 05: Is that a basis to make this a new Bivens claim because this is under a court supervision at the time most of the events happened? [00:16:26] Speaker 02: Well, because the provision of care that she was receiving under the court's supervision related to the duty of care of the Bureau of Prisons under 18 USC 4042, assuming that the court was exercising its duties as I mean, exercising its authority under the mandamus act. [00:16:45] Speaker 02: to hold the Bureau of Prisons accountable for providing the duty of care they were statutorily required, a duty which is far different than the Constitution mandates, right? [00:16:54] Speaker 02: I'm sorry. [00:16:55] Speaker 05: You can answer my question. [00:16:56] Speaker 05: Is this a new context because of that court supervision? [00:16:59] Speaker 02: It would be a new context because the court was intricately involved. [00:17:02] Speaker 02: And you're asking individual defendants to say, not only do the doctors, the medical personnel, or the judge know what's right, I have something better in mind. [00:17:14] Speaker 02: You're asking them to say that they were relying on this mechanism that was in place and was actually functioning to provide her whatever treatment was deemed necessary and say, I know better. [00:17:25] Speaker 02: And none of these people are in a position to do that, nor should they be. [00:17:30] Speaker 02: As a judge, would you want some peon bureaucrat deciding that your judgment isn't fair or that they should take it upon themselves to do something that's not readily before the court? [00:17:39] Speaker 02: They had every opportunity and multiple attorneys available. [00:17:43] Speaker 02: to if they felt that there was deficient care pursuant to what the need was to come back to the court. [00:17:49] Speaker 02: They had access to class counsel to pursue injunctive relief that way. [00:17:53] Speaker 02: So there were many different avenues in this case, which goes to the assessment of whether or not there were different ways in which these rights or these conditions or these issues could be raised. [00:18:03] Speaker 03: All right. [00:18:03] Speaker 03: So, counsel, I'm going to jump because you're also way over as well. [00:18:06] Speaker 02: Oh, I have a minute and 46. [00:18:07] Speaker 02: Oh, no. [00:18:08] Speaker 03: See how time's going up? [00:18:10] Speaker 03: Pardon me red light means stop. [00:18:12] Speaker 03: I know it's confusing and we have when we have this many lawyers This is usually what happens and I apologize I usually give each counsel seven minutes and four minutes, and I didn't do it and I didn't instruct the CRD to do that That's my fault so you're finished. [00:18:23] Speaker 03: Thank you Thank you now We'll hear from the other side [00:18:44] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:18:47] Speaker 00: Lauren Kane from Kakar Van Ness and Peters. [00:18:50] Speaker 00: Ms. [00:18:50] Speaker 00: Ocean Francis was denied all meaningful prenatal medical care for a five-month period while she was incarcerated at FCI Dublin. [00:18:59] Speaker 00: During her time at Dublin, Ms. [00:19:01] Speaker 00: Francis did everything she could to seek medical attention for her painful and frightening pregnancy complications. [00:19:08] Speaker 00: She submitted at least six sick calls, which were ignored. [00:19:12] Speaker 00: And I would direct the court to paragraph 44 of the second amended complaint, which states that she submitted at least six sick calls to Dublin staff regarding her symptoms, which on information and belief, defendants Dolgov, Wilson, Husseini, Augustini, and eventually McKinney were all aware of. [00:19:31] Speaker 05: You didn't plead what was in those sick calls, though, right? [00:19:35] Speaker 00: That is correct, Your Honor. [00:19:36] Speaker 00: We do say that sick calls are the recommended method for requesting the health care. [00:19:40] Speaker 00: She is requesting health care. [00:19:41] Speaker 05: No, I agree, but I think it's important to know what was said in those sick calls. [00:19:45] Speaker 05: We just don't know. [00:19:46] Speaker 00: We do know that she submitted the calls, quote, regarding her symptoms. [00:19:51] Speaker 00: Right. [00:19:51] Speaker 00: And then we discuss the symptoms throughout the complaint. [00:19:54] Speaker 05: Yeah, but that's not the same. [00:19:55] Speaker 05: I mean, because the point is the delivered indifference is they have to know specifically the problem that it's serious and they ignored it. [00:20:02] Speaker 05: But just saying there's a sick call about symptoms, I don't know if that meets that standard. [00:20:06] Speaker 00: I agree. [00:20:07] Speaker 00: And we did not just plead only sick calls. [00:20:10] Speaker 00: She also personally informed her unit manager. [00:20:13] Speaker 05: Yeah, about concerns. [00:20:15] Speaker 00: About concerns about her pregnancy. [00:20:18] Speaker 00: She also filed a BP9 grievance form, which I would direct the court to. [00:20:22] Speaker 05: I was wondering if you were given an opportunity to replete. [00:20:25] Speaker 05: Could you tell us what was in the sick calls or the BP9? [00:20:30] Speaker 00: We have not had the benefit of discovery, of course. [00:20:33] Speaker 00: We're just pleading at this stage. [00:20:36] Speaker 00: And so we can amend, I suppose, and discuss in more detail her specific symptoms. [00:20:44] Speaker 00: But we do think that it is sufficient in paragraph 44 discussing her symptoms, discussing the BP9 grievance form, which, quote, recounted her weight loss and the neglect she faced up to this point, and requesting that the warden provide her with prenatal care [00:21:00] Speaker 00: and a proper diet. [00:21:02] Speaker 05: Yeah, it's just, you know, it's somewhat vague. [00:21:04] Speaker 05: You just, you know, weight loss could be serious. [00:21:06] Speaker 05: It could be she could have lost, you know, 15, 20 pounds, or she could have lost two pounds. [00:21:10] Speaker 05: So we just don't know, right, and whether or not that would meet the deliberate indifference test. [00:21:14] Speaker 00: We do discuss in the complaint that she had rapid weight loss of over 30 pounds, and this is of course... Well, but then we don't know if the prison officials knew that, though. [00:21:23] Speaker 05: That's the problem. [00:21:25] Speaker 00: And I mean, the reasonable inference to draw from our allegations is that she submitted these calls regarding her symptoms and recounting her weight loss and the neglect she faced up to that point. [00:21:38] Speaker 00: I don't think the standard is for us to quote verbatim what was in the sick call. [00:21:42] Speaker 00: You know, we're looking at whether or not these defendants were on notice, and they were. [00:21:46] Speaker 05: Right, of deliberate indifference. [00:21:48] Speaker 05: So they have to know specifically of a serious medical condition [00:21:53] Speaker 05: and then ignore it, right? [00:21:55] Speaker 05: Since we don't know what they were told, I just don't know how we could say that you've applied deliberate indifference to that standard. [00:22:03] Speaker 05: Let me ask you this way. [00:22:04] Speaker 05: To me, this most serious allegation is the preeclampsia condition, which I do think is very serious. [00:22:09] Speaker 05: Is there an allegation that any of the defendants knew about the condition of preeclampsia? [00:22:18] Speaker 00: Miss Francis was eventually diagnosed with preeclampsia. [00:22:21] Speaker 00: This is in paragraph 85. [00:22:23] Speaker 00: This is April 23rd of 2024. [00:22:27] Speaker 00: There's no specific allegation that I'm aware of stating that each of the defendants were aware of the preeclampsia. [00:22:37] Speaker 00: But of course, she was not diagnosed with the preeclampsia. [00:22:40] Speaker 00: And so I don't think that she should be punished just because she wasn't diagnosed. [00:22:46] Speaker 05: Yeah, no, I get it. [00:22:48] Speaker 05: I mean, it's a serious issue, but if they didn't know that she was having preeclampsia, how can you say that they were being deliberately indifferent? [00:22:56] Speaker 00: Because they should have known based off of the symptoms that she submitted in her six sick calls, four of which they outright rejected, the BP9 grievance form, and she was personally informing staff. [00:23:09] Speaker 00: And so taking all together and taking all reasonable inferences in her favor, which the court is required to do at this stage, that was sufficient notice. [00:23:17] Speaker 03: So it's almost like the theory would be willful blindness, that they just had every opportunity to know something was wrong and they just didn't do it. [00:23:25] Speaker 03: So that can't be a defense deliberate indifference because the reason why they didn't know is because they were deliberately indifferent to finding out. [00:23:30] Speaker 00: Exactly, Your Honor. [00:23:31] Speaker 03: So let me ask you this. [00:23:32] Speaker 03: So Watanabe is a very good case for you. [00:23:37] Speaker 03: But a lot of people on my court are not fans of that case. [00:23:41] Speaker 03: And we'll see what the Supreme Court does with that case. [00:23:45] Speaker 03: So imagine a world, I'm not saying agree with me, but imagine a world where Watanabe is reversed. [00:23:52] Speaker 03: It goes the other way. [00:23:53] Speaker 03: What's left of your case if that happens? [00:23:56] Speaker 00: What's left for us is Stenard, which Judge Boumete brought up. [00:24:00] Speaker 00: And Stenard dealt with delay in hepatitis C treatment, where the plaintiff complained of abdominal pain, but there was no noted lasting injury from the delay. [00:24:09] Speaker 00: The court acknowledged that Stenard received less deficient care than the inmate in Carlson, but still found the case to be a, quote, replay of Carlson. [00:24:18] Speaker 00: And then even just two months ago in Schwartz v. Miller, [00:24:22] Speaker 00: Same story, where the plaintiff alleged a three-month delay in receiving thyroid testing and a five-month delay in receiving thyroid medication. [00:24:31] Speaker 03: Now Schwartz, I'm familiar with that one. [00:24:34] Speaker 03: Schwartz was in large part based on Watanabe. [00:24:37] Speaker 03: So I guess I'm trying to figure out is that, is this like a, are we pulling a card out of the top of the card pyramid or are we pulling a card out of the bottom of the card period with Watanabe? [00:24:47] Speaker 03: You're saying it's the top and the structure would still exist. [00:24:50] Speaker 00: I am. [00:24:51] Speaker 00: We are arguing that this claim falls within the well-established Bivens context of deliberate indifference to a serious medical need as established in Carlson v. Green. [00:25:00] Speaker 00: We fall under the Carlson umbrella. [00:25:01] Speaker 00: We are not hinging our entire claim to Watanabe, which of course is still good law. [00:25:06] Speaker 00: As you noted, this court does need to follow it regardless of [00:25:09] Speaker 00: you know, if and until something happens to it. [00:25:12] Speaker 00: We are relying on Stenard, we are relying now on Schwartz, and the Bivens claim challenges the exact same type of conduct, which is deliberate indifference to a serious and here life-threatening medical need. [00:25:26] Speaker 00: And because her claim arises in the same context as Carlson, it is cognizable under Bivens and no step two analysis is required. [00:25:34] Speaker 05: Can I ask, at least for the Victorville defendants, at that time she was under court supervision, right? [00:25:40] Speaker 05: Her medical care was under court supervision. [00:25:44] Speaker 00: Your Honor, I would disagree that her medical care was under court supervision. [00:25:49] Speaker 00: This is not a case where there was a court-appointed monitor or any sort of receivership. [00:25:57] Speaker 00: There was a stipulation, and then the district court ordered the stipulation providing baseline prenatal care, which included biweekly visits with an OB-GYN. [00:26:08] Speaker 05: So I'm just wondering why doesn't that make this a new context, right, where I just haven't seen a case where a court is intimately involved with the health care of an inmate and we're still providing a Bivens case, a new cause of action, where there's an alternative remedy when the court is involved. [00:26:26] Speaker 05: Don't you agree that the court could order sanctions, can order injunctive relief? [00:26:31] Speaker 05: So I just don't know why you would need Bivens in that context. [00:26:34] Speaker 00: First of all, we would disagree that the court was intimately involved. [00:26:39] Speaker 00: Even as the Victorville defendants were defying the order, it's not the situation where the court stepped in and ordered more care or did anything other than order the stipulation, which we requested and agreed to. [00:26:52] Speaker 00: That said, as you just discussed as far as administrative remedies or placing this outside of a Bivens context, I would argue that that falls within Bivens step two, which of course is also a lot of what we're discussing within Watanabe and bringing that up to the Supreme Court. [00:27:08] Speaker 00: We are saying here there's no need to discuss step two. [00:27:12] Speaker 00: We are not arguing special factors here because this claim falls clearly under Carlson and there's no need to even proceed to step two. [00:27:19] Speaker 05: Well, Carlson did not have a court. [00:27:21] Speaker 00: Supervision that that to me seems like a big difference Again I disagree that this was court supervision You know we received a court orders to be we received a court stipulation in order after she filed a pro se habeas petition Because she was so desperate to receive just bare minimum medical treatment [00:27:44] Speaker 00: This is not included in the Ziegler factors. [00:27:47] Speaker 00: There's no reason in my mind that this would be a meaningful difference from Carlson. [00:27:53] Speaker 00: So as to place this outside of the Carlson umbrella. [00:27:55] Speaker 05: And then can I ask about the transfer defendants? [00:27:59] Speaker 05: That seems to me also to be a different, even excluding, even assuming Watanabe and all that, that seems to be a different context also to me. [00:28:07] Speaker 05: Because as I read that part of the complaint, it's about, [00:28:12] Speaker 05: excessive force in transferring, not in deliberate indifference. [00:28:18] Speaker 00: We are not arguing an excessive force claim here. [00:28:21] Speaker 00: This is still an Eighth Amendment deliberate indifference claim. [00:28:24] Speaker 00: It is just a different flavor from what we discussed earlier. [00:28:28] Speaker 00: She has stated a sufficient claim here because it further falls under Carlson because she has plausibly alleged that Appellant Wilson knew of her serious medical need, that she was seven and a half months pregnant and experiencing serious complications, [00:28:43] Speaker 00: And that by illegally restraining her during transfer, he forcefully strapped her to a gurney and used restraints on her shoulders, arms, thighs, and ankles in direct violation of 18 USC 4322. [00:28:56] Speaker 00: Yeah. [00:28:58] Speaker 05: So isn't that a problem for you, though? [00:28:59] Speaker 05: There's a statute directly on point, correct? [00:29:04] Speaker 05: On how to transfer pregnant inmates. [00:29:06] Speaker 05: That is correct, Your Honor. [00:29:08] Speaker 05: And that's a relatively new one, the first step back, right? [00:29:11] Speaker 05: It was part of the first step back, I believe. [00:29:13] Speaker 05: Anyway, it's a relatively new statute and Congress did not create a cause of action even though they were concerned enough about transfer of pregnant inmates to outline the procedures to do so. [00:29:26] Speaker 05: So why is that not a sign that we should not be granting a new context here? [00:29:31] Speaker 00: Same answer as before, Your Honor, because we are not operating in step two of Bivens. [00:29:36] Speaker 00: Therefore, that is not a relevant factor. [00:29:39] Speaker 00: Right now, we are talking about whether or not this is meaningfully different from Carlson. [00:29:44] Speaker 00: We are in step one. [00:29:46] Speaker 00: And so we're looking at the severity of the harm, the severity of the officer's misconduct. [00:29:52] Speaker 00: And then, if it does fall outside, [00:29:54] Speaker 00: we will move to step two, but here we are not arguing step two, and the fact that there is a statute on point, of course, provides notice under qualified immunity. [00:30:09] Speaker 00: Speaking of qualified immunity, I would like to be sure to address that point. [00:30:18] Speaker 00: As to the first prong, Ms. [00:30:20] Speaker 00: Francis has alleged an Eighth Amendment violation against each appellant. [00:30:24] Speaker 00: There is no real dispute, as we discussed, that Ms. [00:30:28] Speaker 00: Francis had a serious medical need. [00:30:30] Speaker 00: Attorney argument does not replace the allegations in the complaint or the medical judgment of the medical professionals who treated her. [00:30:38] Speaker 00: Our brief lays out the allegations against each appellant, demonstrating personal knowledge and involvement. [00:30:44] Speaker 00: We are not making a systemic claim, as they have argued. [00:30:48] Speaker 00: There were, of course, systemic issues at Dublin Prison, but that is not what this complaint [00:30:55] Speaker 00: At minimum, she has alleged that the appellants knew that she was pregnant, were aware of her pleas for help, and knew that nobody was responding. [00:31:05] Speaker 00: Second, it is clearly established that deliberate indifference to a prisoner's serious medical need violates the Eighth Amendment. [00:31:12] Speaker 00: The right was established in Estelle V. Gamble, and the circuit has continuously reaffirmed that delay in medical treatment can establish a constitutional violation. [00:31:22] Speaker 00: In Jet v. Penner, for instance, this court found prison officials to be deliberately indifferent when they provided some treatment, but they delayed specialty care for a broken thumb against the advice of doctors. [00:31:34] Speaker 00: So too here. [00:31:35] Speaker 00: Appellants are not absolved of all liability simply because Ms. [00:31:39] Speaker 00: Francis received some care. [00:31:42] Speaker 00: This case actually takes it a step further than Jet, given the prenatal context. [00:31:47] Speaker 00: where the dangers of delay in treatment are enhanced, given the time-sensitive nature of pregnancy, and the consequences are potentially deadly. [00:31:56] Speaker 00: The risk is obvious. [00:31:58] Speaker 00: I'll end by noting that the order appealed from was not a close call. [00:32:07] Speaker 00: The only question the district court thought was a close call was whether this appeal is frivolous. [00:32:13] Speaker 00: Miss Francis has sufficiently pleaded her claims. [00:32:16] Speaker 00: She suffered serious pregnancy complications, alone and scared, and she asked for treatment in all of the ways that she could. [00:32:23] Speaker 00: Appellants ignored her pleas for help and neglected to get her the care that she desperately needed. [00:32:29] Speaker 00: She deserves an opportunity to prove her claims and hold appellants accountable. [00:32:35] Speaker 00: We respectfully request that this court affirm the district court's denial of the motion to dismiss. [00:32:41] Speaker 00: I'm happy to answer any additional questions from the court. [00:32:46] Speaker 03: All right. [00:32:46] Speaker 03: Thank you very much, counsel. [00:32:57] Speaker 01: Good morning. [00:32:58] Speaker 01: I'm Jonathan Lawrence. [00:32:59] Speaker 01: I'm the attorney for Art Dulgov, a warden at Dublin. [00:33:03] Speaker 01: But I'm going to just sum up for all of us, all defendants, there's no need to remand this for a further amendment. [00:33:11] Speaker 01: It will not cure the following problems. [00:33:14] Speaker 01: Here are the points I want to make. [00:33:15] Speaker 01: There's only four. [00:33:16] Speaker 01: Number one, I could find no other medical care case where a federal district court judge immersed himself during the pendency of an inmates incarceration to dictate care in real time. [00:33:31] Speaker 01: There were three court hearings. [00:33:32] Speaker 01: These are pled. [00:33:33] Speaker 01: I don't need to go outside the second minute complaint. [00:33:35] Speaker 01: Paragraphs 54 and 64 talk about the three hearings where this judge was ordering care at the suggestion and direction of [00:33:45] Speaker 01: an entire law firm, and with the benefit of class counsel who weighed in at one of the hearings. [00:33:51] Speaker 01: So how does that play into this case? [00:33:52] Speaker 01: It's completely new Bivens context. [00:33:55] Speaker 01: And that's the point. [00:33:56] Speaker 01: There's never been a case under Bivens. [00:34:00] Speaker 01: And before I go to qualified immunity, let me just sum up the Bivens argument this way. [00:34:07] Speaker 01: Five doctors are named in the second amended complaint with nine dates of care. [00:34:12] Speaker 01: There's never been a Bivens case that says, [00:34:15] Speaker 01: you have a complete deliberate indifference, even though you took an inmate to five doctors over nine dates. [00:34:24] Speaker 01: And there's the district court case in Tanner, which is a New Mexico case, which is in my brief, talks about the difference that the 10th Circuit acknowledges between providing some care and no care. [00:34:37] Speaker 01: Some care removes it from Bivens. [00:34:40] Speaker 01: No care is actionable. [00:34:42] Speaker 01: I hope that this court will take the time to look at the four Ziegler factors, because that's what controls this case, not standard, not Carlson, it's now Ziegler, Ziegler v. Abbasi. [00:34:55] Speaker 01: And let's focus on the last three of those factors. [00:35:00] Speaker 01: The specificity of official action is missing, and then the last two factors. [00:35:06] Speaker 01: The extent of judicial guidance, and I'm not being snarky here. [00:35:11] Speaker 01: Judicial guidance, I'm sure they intended for it to be circuit court guidance, but we had district court guidance. [00:35:18] Speaker 01: If that's not satisfying Ziegler to remove this from Bivens, I don't know what else is. [00:35:22] Speaker 05: Can I ask a question? [00:35:24] Speaker 05: But the district court didn't come into play until Victorville, right? [00:35:28] Speaker 01: No, no, no. [00:35:28] Speaker 01: The district court became involved in February. [00:35:31] Speaker 01: I'm sorry, Your Honor, to cut off your question, but my time's up. [00:35:34] Speaker 01: The district court became involved immediately after the filing of the twenty two forty one. [00:35:38] Speaker 01: This was a twenty two forty one case. [00:35:40] Speaker 01: And so how many months pregnant was she at that point. [00:35:43] Speaker 01: Well she learned she was I don't understand the gestational table. [00:35:47] Speaker 01: She came into the prison I believe in late October and this was in February. [00:35:51] Speaker 01: So she was pregnant. [00:35:52] Speaker 01: February, March, April, and she delivered May 15. [00:35:55] Speaker 01: So you've got four months span where she's got judge, law firm, two law firms, and five doctors and nine medical appearances. [00:36:06] Speaker 01: And then the last, what's interesting here is the last Ziegler factor is the risk of disruptive intervention by the judiciary. [00:36:13] Speaker 01: I'm not criticizing Judge Chabria, but when you're fully immersed, it's hard to say [00:36:19] Speaker 01: that we should allow a Bivens action, and we don't want to disrupt. [00:36:24] Speaker 01: We have a case where they did not allege any harm to the mother or any harm to the child. [00:36:29] Speaker 01: They didn't allege any injury or illness. [00:36:30] Speaker 01: All the pregnancy cases, unfortunately, resulted in a stillborn. [00:36:34] Speaker 01: And in that respect, please, if you'll notice in paragraph 49, there is a risk of preeclampsia. [00:36:41] Speaker 01: This is fact pled, not notice pled. [00:36:43] Speaker 01: And in paragraph 85, there are two adjectives. [00:36:47] Speaker 01: dealing with preeclampsia. [00:36:48] Speaker 01: One is suspected, and then the other one talks about she was tested. [00:36:52] Speaker 01: Plaintiff's counsel stopped far short of saying that the test was positive. [00:36:56] Speaker 01: They did not say there was a diagnosis. [00:37:00] Speaker 01: I just want to turn quickly to qualified immunity. [00:37:04] Speaker 01: The fact that you have judicial intervention is what [00:37:09] Speaker 01: grants these defendants their entitled, qualified immunity. [00:37:13] Speaker 01: Because when a judge takes over an inmate's care and they have lawyers there, not the defendants. [00:37:21] Speaker 01: I'm talking about plaintiffs. [00:37:22] Speaker 01: She's got lawyers there. [00:37:24] Speaker 01: And then these government officials are told, go do this, go do that. [00:37:28] Speaker 01: What they were told is take her to her mental appointments. [00:37:30] Speaker 01: And the second amendment complaint admits that she was taken to her medical appointments. [00:37:35] Speaker 01: How are they supposed to suspect that they're violating the Constitution by following the judge? [00:37:41] Speaker 01: And that's the test is, did they deliberately [00:37:46] Speaker 01: Were they deliberately indifferent to this inmate in violation of a constitutional standard? [00:37:51] Speaker 01: Did they depart from the Constitution? [00:37:53] Speaker 01: They've got a federal judge telling them what to do and they simply did it. [00:37:55] Speaker 01: I don't see how we could say that they're not entitled to that immunity. [00:37:59] Speaker 01: That's what makes this case unlike any other and removes it from Watanabe. [00:38:04] Speaker 01: If there are no questions. [00:38:05] Speaker 03: No. [00:38:06] Speaker 01: I was going to say, I went over and I apologize, but thank you for hearing me out. [00:38:10] Speaker 03: Thank you, counsel. [00:38:11] Speaker 03: I thank you both for your argument. [00:38:12] Speaker 03: I especially want to thank Ms. [00:38:13] Speaker 03: Kane and your law firm for doing the pro bono work. [00:38:17] Speaker 03: It's probably a good break from discovery disputes, but nevertheless, we do appreciate you stepping up the plate and handling this one. [00:38:23] Speaker 03: So thank you. [00:38:25] Speaker 03: All right, this matter's submitted. [00:38:26] Speaker 03: Thank you to all the arguments and briefing in this case. [00:38:29] Speaker 03: And we'll go on to the last one.