[00:00:01] Speaker 01: I'd like to thank the court for the opportunity to address my arguments to the panel on behalf of appellate defendants. [00:00:07] Speaker 01: The district court erred when denying appellate's motion to dismiss because they are entitled to qualified immunity. [00:00:12] Speaker 01: As Howard does not allege any plausible facts establishing a violation of the Eighth Amendment based on his temporary confinement in a shower shell, much less his burden of establishing a violation of clearly established law beyond debate. [00:00:26] Speaker 01: Howard failed to establish a violation of the Eighth Amendment because one, [00:00:29] Speaker 01: He failed to plausibly allege that his temporary confinement in a shower cell objectively posed an intolerable risk of serious harm. [00:00:37] Speaker 02: Is the temporary confinement to the shower the eight hours? [00:00:42] Speaker 01: That's what he alleges in his complaint. [00:00:44] Speaker 01: Yes, your honor. [00:00:44] Speaker 02: Well, aren't we supposed to consider that those allegations, you know, in the light most favorable to the individual? [00:00:55] Speaker 01: Yes, Your Honor. [00:00:56] Speaker 01: That's true. [00:00:56] Speaker 01: And in this case, we have consistently, in response to his arguments, have, for purposes of the motion to dismiss a loan, relied on that it was eight hours in a shower cell. [00:01:09] Speaker 02: And he was in crutches? [00:01:11] Speaker 02: Is that correct? [00:01:12] Speaker 01: That's what he alleges, Your Honor. [00:01:14] Speaker 04: What he alleges are the facts that we're dealing with. [00:01:17] Speaker 04: So we don't have to keep repeating that he alleged it. [00:01:19] Speaker 04: But go ahead. [00:01:21] Speaker 01: OK. [00:01:22] Speaker ?: OK. [00:01:23] Speaker 04: You also generally are often used to wheelchair, is that right? [00:01:27] Speaker 01: Say that again, Your Honor? [00:01:29] Speaker 04: You also generally are often used to wheelchair, is that right? [00:01:32] Speaker 01: No, Your Honor, that was later in 2020, two years after the incident. [00:01:35] Speaker 04: Well, it says in the complaint that he attacked plaintiff who was handcuffed who fought to keep inmate Davis from getting plaintiff into a headlock while plaintiff sent a wheelchair handcuffed apparently at that time. [00:01:49] Speaker 01: Right. [00:01:49] Speaker 01: In 2020, Your Honor, where these events happened with respect to the shower was 2018. [00:01:53] Speaker 04: I'm sorry. [00:01:57] Speaker 04: I thought that that referred to the same incident. [00:02:02] Speaker 01: No. [00:02:02] Speaker 01: No, Your Honor, it does not. [00:02:03] Speaker 01: There's two different instances. [00:02:05] Speaker 01: That particular instance, we want our motion to dismiss below. [00:02:11] Speaker 01: He also failed to plausibly allege that each of the three defendant's correction officers personally had actual subjective knowledge [00:02:18] Speaker 01: that his confinement posed any risk of harm, and three, he failed to plausibly allege that these three correction officers were in a position to take any steps to alter Howard's confinement, all of which are necessary to establish an Eighth Amendment violation. [00:02:33] Speaker 01: Even if Howard plausibly alleged that these three officers actually knew that Howard was being deprived of medication, food, water, and bathroom breaks for eight hours, this court and other circuit courts have repeatedly held that such declarations are of limited duration [00:02:47] Speaker 01: and do not establish a violation of the Eighth Amendment. [00:02:50] Speaker 01: Howard, therefore, cannot point to any Supreme Court or circuit authority which squarely governs the facts of this case and put defendants on notice that their conduct, beyond a date, violated the Eighth Amendment. [00:03:00] Speaker 01: I'm going to go through each of these things that I've just outlined, unless the court has specific questions about where we want to go. [00:03:07] Speaker 01: But otherwise, I'm going to start with the objective problem in Farmer. [00:03:12] Speaker 01: Howard's temporary confinement did not pose an objective and tolerable risk of serious harm [00:03:16] Speaker 01: Required by the first prong of farmer howard had access to a drain. [00:03:20] Speaker 03: He was confined in a shower Yeah, he was not shackled so he could sit or stand as he pleased You say that but why isn't it a reasonable inference from his complaint that he could not sit? [00:03:32] Speaker 03: Well because it's because he says he's not shackled But he says I was forced to stand on crutches So why doesn't that sound like he was forced to stand and couldn't sit well? [00:03:42] Speaker 01: Forced to stand is a subjective whether or not he was forced to stand as a subjective, and this is an objective test He's not saying that I could not sit he was saying he's saying I was forced to stand because He was on you're saying that's a reasonable inference that there was actually a chair there And he could have sat from the night. [00:03:58] Speaker 01: No your honor. [00:03:59] Speaker 01: I am NOT saying that there was a chair in there No, I your honor. [00:04:01] Speaker 01: I'm not I'm saying he could have sat on the floor if he wanted to I [00:04:05] Speaker 03: Even though he's on crutches. [00:04:06] Speaker 01: Even though somebody on crutches can sit on a floor, Your Honor. [00:04:09] Speaker 01: I don't think there's a reasonable inference. [00:04:11] Speaker 03: Well, is that a reasonable inference? [00:04:12] Speaker 03: I mean, what do you think the reason for the crutches was? [00:04:16] Speaker 01: Well, I think the reason for the crutches was because to enable him to walk from one place to another place. [00:04:22] Speaker 01: And so he had crutches to enable him to do that. [00:04:25] Speaker 01: I don't think having crutches is a reasonable inference that you cannot sit, Your Honor. [00:04:28] Speaker 01: I think I see people all the time sitting with crutches. [00:04:30] Speaker 03: Well, why would he think that he was forced to stand if he could have sat? [00:04:33] Speaker 01: Your Honor. [00:04:34] Speaker 01: I am not, why he says he's forced to stand is a mystery to me when he doesn't say he is shackled at all. [00:04:42] Speaker 01: I think that if he would have said that, for example, he was shackled to the shower, which is not, which he doesn't allege, that that's a possibility that that may prevent it because that's what the cases say. [00:04:53] Speaker 02: But by saying he's forced to stand, why isn't it a reasonable inference? [00:04:58] Speaker 01: Because, Your Honor, for example, if you go back to Eekball, Your Honor, if you go back to Eekball, it's a conclusory allegation. [00:05:05] Speaker 01: I was forced to stand. [00:05:06] Speaker 01: But it gives no facts to say why he was forced to stand. [00:05:08] Speaker 04: Well, he keeps calling this a cage, not a shower. [00:05:11] Speaker 04: It's a shower cage. [00:05:12] Speaker 01: It's, well, he calls it a cage. [00:05:14] Speaker 01: It's a shower cell, Your Honor. [00:05:15] Speaker 01: It's a shower. [00:05:16] Speaker 01: It's what it is. [00:05:17] Speaker 01: It's a shower. [00:05:17] Speaker 03: But maybe, I mean, we only have the complaint, and we have to take the inferences in his favor. [00:05:22] Speaker 03: So he calls it a shower cage, so maybe there's not even room to sit down for what we can take from the inferences. [00:05:27] Speaker 01: Well, Your Honor, that wouldn't be a proper inference either, because a cage, if you take that, for example, he says it's a cage, there's no, there's no, there's no inference to be drawn about when you say it's a cage, that a cage is only two feet by two feet, or a cage, which I've seen, you know, [00:05:42] Speaker 01: or it could be his entire cell. [00:05:43] Speaker 01: He could also call his cell a cage. [00:05:45] Speaker 04: He said it's small. [00:05:47] Speaker 04: Well, that's also relative. [00:05:51] Speaker 01: And I'd be willing to share the court. [00:05:53] Speaker 01: I can tell you what the size of it is. [00:05:56] Speaker 01: It's 3 by 6. [00:06:00] Speaker 01: I mean, that's on the record, but that is the size. [00:06:03] Speaker 01: So somebody might say three by six is small. [00:06:06] Speaker 01: Somebody might say three by six is large. [00:06:09] Speaker 01: But to be in a place that's three by six for eight hours is not intolerable risk of harm, your honor. [00:06:18] Speaker 01: But that could be small. [00:06:20] Speaker 03: So your argument depends on us believing that he actually could have sat, even though he's saying that he was forced to stand. [00:06:27] Speaker 01: No, my argument doesn't depend on that entirely, your honor, but what it is saying is that [00:06:33] Speaker 03: When you make, under Tuam, under Iqbal, if you're making conclusory allegations without underlying facts to support your claim, then you're not entitled to... The conclusory allegations that we can't accept are legal motivations that would be an element of the test. [00:06:54] Speaker 03: This isn't a claim the motivation was discriminatory. [00:06:58] Speaker 03: This is just a claim I was forced to stand. [00:07:00] Speaker 03: That sounds very factual. [00:07:01] Speaker 03: It doesn't sound like [00:07:02] Speaker 03: speculation of someone else's intent or anything like that. [00:07:07] Speaker 03: I don't really even understand why you're saying this is the kind of thing that can't be alleged. [00:07:12] Speaker 01: Well, I just have to respectfully disagree, I guess, Your Honor, because my understanding, if you want to go back and look at the facts in Twombly, the kind of things he was alleging in Twombly was that the [00:07:26] Speaker 01: attorney general was the architect of this discriminatory motive and things like that. [00:07:32] Speaker 01: And so, and the court said that things like that, for example, saying, I'm the architect, which your honor would say, I guess, would say that is, that's a fact, right? [00:07:40] Speaker 01: That he's the architect is a fact, right? [00:07:42] Speaker 03: I think the problem was the discriminatory motive. [00:07:44] Speaker 01: The Supreme Court, they said that he was the architect of the discrimination which he pushed out what it was. [00:07:52] Speaker 01: And you can say that that was all, you could make the similar argument, that that's a factual argument. [00:07:57] Speaker 01: But it's not really, it's a conclusory argument because he doesn't put any facts to say, well that's what he needs to say, he needs to say why. [00:08:03] Speaker 01: He was forced to stand. [00:08:05] Speaker 01: For example, there's all kinds of things you could speculate as the reason why he was forced to stand. [00:08:10] Speaker 01: He could say, I was forced to stand because I didn't want to sit. [00:08:14] Speaker 01: I was forced to do it because I just didn't want to do it. [00:08:16] Speaker 01: Or I was forced to stand because some officer said, if I sit, I'm going to be punished. [00:08:19] Speaker 01: That could be a way to why he was forced to stand. [00:08:21] Speaker 01: There could be all kinds of reasons. [00:08:23] Speaker 01: But it's mere speculation about why he was forced to stand. [00:08:29] Speaker 01: And making inferences is not making speculations, Your Honor. [00:08:33] Speaker 01: Howard, and just in this thing, even if he was forced to stand, I mean, he had the crutches to support him. [00:08:45] Speaker 01: He had, and therefore, there is no cases that say that, hey, you're standing in this itself for eight hours on crutches is objectively intolerable risk of serious harm. [00:08:58] Speaker 02: Why is it that similar to Hope versus Peltzer where he's handcuffed to a hitching post? [00:09:05] Speaker 01: Okay. [00:09:06] Speaker 01: The hitching post is an entirely different set of facts or scenario. [00:09:12] Speaker 01: Because, for example, he isn't changed to anything. [00:09:14] Speaker 01: He doesn't allege he's changed to anything. [00:09:16] Speaker 01: I think that's the main thing. [00:09:17] Speaker 01: The other thing is in the Hope case, okay, those are outrageous facts. [00:09:22] Speaker 01: I mean, I think we can all agree that it's outrageous facts that he was hitched to a hitching post for seven hours. [00:09:29] Speaker 02: Well, but here he's saying he's forced to stand, and again, [00:09:34] Speaker 02: I have to infer, don't I, that forced means what it says, that he was forced to do that. [00:09:42] Speaker 02: So here, that's what he's alleged. [00:09:46] Speaker 02: I don't know what happened here. [00:09:48] Speaker 01: And that's the point, Your Honor. [00:09:51] Speaker 01: You don't know what happened. [00:09:52] Speaker 01: There is no inference to be drawn from what he's saying. [00:09:54] Speaker 01: He needs to say why he was forced to stand. [00:09:56] Speaker 01: What was it that made him forced to stand? [00:09:58] Speaker 02: The district court judge is going to be making factual determinations at this point. [00:10:04] Speaker 01: No, no, no, your honor. [00:10:05] Speaker 01: That's not true. [00:10:06] Speaker 02: Well, that's sort of what you're saying, though, because he doesn't know, the judge doesn't know who's reviewing this complaint. [00:10:12] Speaker 01: And that's my point exactly, your honor, that it's because nobody knows. [00:10:17] Speaker 01: Nobody knows. [00:10:17] Speaker 01: Nobody can make an inference from why he was forced to stand, whether it was his subjective belief or whether it was due to the objective conditions of his confinement. [00:10:27] Speaker 01: I mean, if it's just a subjective belief, the reason why he's forced to stand, I think we would all say then it's not an objective test, right? [00:10:36] Speaker 04: Mike let's go on to the next point This is all an essentially a interlocutory appeal of a Yes, your honor a motion of Smith's right. [00:10:54] Speaker 01: Yes, your honor. [00:10:55] Speaker 04: Are these kinds of factual disputes? [00:10:58] Speaker 01: No, you're not really before us there are not [00:11:01] Speaker 01: There cannot be a factual dispute in a motion to dismiss because... No, not in a motion to dismiss. [00:11:06] Speaker 04: I'm interested in the appeal. [00:11:09] Speaker 04: This is my understanding. [00:11:12] Speaker 04: These appeals are all from summary judgment, but essentially what you're disputing is the way the district court read the complaint. [00:11:23] Speaker 01: Well, I'm disputing that the district court said that they made inferences from the complaint that are not permissible under EFOL. [00:11:32] Speaker 04: Is that issue appropriately before us? [00:11:34] Speaker 01: Yes, Your Honor. [00:11:36] Speaker 04: As opposed to the question whether taking the complaint as the district court understood it. [00:11:44] Speaker 04: Excuse me, I haven't finished my sentence. [00:11:46] Speaker 01: I'm sorry, Your Honor. [00:11:50] Speaker 04: I thought you were. [00:11:54] Speaker 04: complaint as the district court understood it, was there a constitutional violation and clearly established law? [00:12:06] Speaker 04: I don't see how the Supreme Court cases about the limitations of this kind of appeal as applied to a motion to dismiss sanction us spending our time now disputing the way the district court read the complaint. [00:12:24] Speaker 01: Because, Your Honor, this is a question of law. [00:12:27] Speaker 01: The district court is not entitled to, whatever the district court is doing, all they can do is answer the legal question, which is before them, which is whether the complaint states a plausible allegation. [00:12:38] Speaker 01: And that's the same question that's before this court. [00:12:40] Speaker 01: It's whether or not he stated a plausible allegation under Twombly and Eekball. [00:12:45] Speaker 01: And for example, in Eekball, it's the same thing. [00:12:47] Speaker 04: I haven't seen that issue being the subject of an interlocutory qualified immunity appeal of this posture. [00:13:01] Speaker 04: Ordinarily, what we're looking at is on a certain set of facts, was there a violation of [00:13:11] Speaker 04: of clearly established law. [00:13:14] Speaker 01: Right. [00:13:15] Speaker 01: You're correct, Your Honor. [00:13:15] Speaker 01: That is it. [00:13:16] Speaker 01: But that is also exactly what Eekball was all about. [00:13:18] Speaker 01: Eekball was a qualified immunity case, too. [00:13:20] Speaker 01: And it was the same thing. [00:13:22] Speaker 01: The district court said that, hey, he's alleged enough allegations to do this. [00:13:26] Speaker 01: And the Supreme Court said no, because you can't draw the inferences that you drew from the complaint. [00:13:32] Speaker 01: And so, and that's all a question of law. [00:13:33] Speaker 01: Whether or not you can reasonably address the inference is a question of law. [00:13:38] Speaker 01: Your honor, I would like to go further because I would like to make sure that the honors are aware that we also have two other points. [00:13:43] Speaker 01: Other than the objective reasonableness, there's no factual allegations of this complaint at all that our offices- I just want to remind you, you only have a minute left, so you can use it or not use it. [00:13:52] Speaker 03: It's up to you. [00:13:54] Speaker 01: Okay. [00:13:55] Speaker 01: I'll sit down, your honor. [00:13:56] Speaker 01: Thank you. [00:14:07] Speaker 00: Thank you, Your Honors, and may it please the Court. [00:14:09] Speaker 00: Matthew Miyamoto on behalf of the appellee, Reginald Howard. [00:14:13] Speaker 00: Any reasonable officer would have understood that the conditions of Mr. Howard's confinement violated the Eighth Amendment. [00:14:20] Speaker 00: Mr. Howard was forced to stand on crutches in a small, dirty shower cage for over eight hours without food, without water, without medication, without restroom access, and without penological justification. [00:14:35] Speaker 00: These conditions of confinement fall squarely within the boundaries of what the Supreme Court, this Court, and other circuits have held to constitute a clear Eighth Amendment violation. [00:14:47] Speaker 00: In Hope, for example, the Supreme Court encountered materially similar conditions of confinement and concluded, in the words of the Court, [00:14:56] Speaker 00: that they presented such a clear and obvious 8th Amendment violation that qualified immunity should be denied, even though at the time there were no factually similar cases for the court to base its decision on. [00:15:09] Speaker 00: My friend has raised a number of factual challenges to the allegations in Mr. Howard's complaint, but the court can't accept those challenges as true. [00:15:18] Speaker 00: As Judge Berzon mentioned, accepting the facts as the district court construed them, my friend has not offered any persuasive distinction between this case and Hope, this court's decision in Buckley, or the Sixth Circuit's decision in Barker. [00:15:33] Speaker 03: And do you think, I think Judge Berzon was starting to ask, do we even have jurisdiction to go into these kind of arguments? [00:15:41] Speaker 03: And what is your thought on that? [00:15:43] Speaker 00: Thank you, Judge Friedland. [00:15:44] Speaker 00: In all candor, I do think that the court has jurisdiction to consider these fact-based arguments on a motion to dismiss. [00:15:52] Speaker 00: I understand from Iqbal that there's been a distinction in the case law between the summary judgment posture and the motion to dismiss posture on this issue. [00:16:01] Speaker 00: It's ultimately immaterial, though, because the factual inferences that the court needs to draw in order to hold in Mr. Howard's favor [00:16:08] Speaker 00: are just the most straightforward inferences that one can draw from the complaint. [00:16:12] Speaker 00: I'll get into those inferences in a moment. [00:16:14] Speaker 04: Can you tell me where in the complaint, because it must be there because everybody says there is, but is this the statement that he was forced to stand? [00:16:28] Speaker 00: Yes, it's on ER 114, Judge Berzahn. [00:16:31] Speaker 00: I also will note [00:16:34] Speaker 00: In regards to your question about the wheelchair, Mr. Howard alleges that he needed the wheelchair in May of 2020. [00:16:42] Speaker 00: He asserts that with respect to a separate claim that's not an issue in this appeal. [00:16:47] Speaker 00: However, it's entirely plausible for the court to conclude that Mr. Howard also required the use of a wheelchair in November of 2018 when the shower cage incident took place. [00:16:58] Speaker 00: Mr. Howard alleges that 17 days before the shower cage incident took place, [00:17:02] Speaker 00: He was transferred to Ely State Prison specifically so that he could receive medical care. [00:17:08] Speaker 00: He was designated as a state medical treatment inmate. [00:17:12] Speaker 00: We know that he used crutches. [00:17:13] Speaker 00: Standing in this confinement for more than eight hours caused him excruciating pain. [00:17:19] Speaker 00: From those allegations, it's entirely plausible to conclude that Mr. Howard required the use of a wheelchair. [00:17:25] Speaker 00: in November of 2018 when this incident took place. [00:17:29] Speaker 03: You don't really need us to assume that though, right? [00:17:31] Speaker 03: I mean, whether he needed a wheelchair or not, I didn't understand that to be a factor in your argument. [00:17:37] Speaker 00: No, absolutely not Judge Friedland. [00:17:39] Speaker 00: And in fact, if the court were to accept my friend's assumption is correct, it actually cuts against their argument. [00:17:45] Speaker 00: It suggests that the conditions of Mr. Howard's confinement were so physically severe that it may have contributed to or caused the condition that ultimately required the wheelchair. [00:17:55] Speaker 00: So however the court comes out on the wheelchair issue, it's immaterial. [00:17:58] Speaker 00: Mr. Howard was forced to stand on crutches in excruciating pain for this more than eight hour period. [00:18:05] Speaker 00: To continue with the factual allegations that are relevant to the deliberate indifference claim, it's absolutely plausibly alleged from Mr. Howard's allegations that the defendants had notice of the conditions of his confinement. [00:18:19] Speaker 00: They were capable of taking ameliorative action in response to those conditions of confinement, and they didn't. [00:18:26] Speaker 00: So right here on ER 114, Mr. Howard alleges clearly, for over eight hours, plaintiff complained to the defendants [00:18:35] Speaker 00: Noriga, Chung, and Escamilla about the conditions of his confinement. [00:18:40] Speaker 00: He requested water, he requested food, he requested medication, he requested restroom access from each of them, and they denied those requests. [00:18:50] Speaker 00: If the court considers the additional allegations in Mr. Howard's pro se opposition to the motion to dismiss, and of course doesn't need to consider those allegations for Mr. Howard to win, we also have that Mr. Howard specifically requested emergency medical relief from each of the defendants and denied those requests. [00:19:07] Speaker 00: So it's clear from the straightforward allegations in Mr. Howard's complaint [00:19:11] Speaker 00: that the defendants had knowledge of the conditions of his confinement. [00:19:14] Speaker 04: Can we just go back to my proxotic question about where does it say that he was forced to stand? [00:19:20] Speaker 04: Page 114. [00:19:21] Speaker 00: Fifth line up. [00:19:26] Speaker 00: Thank you Judge Mendoza. [00:19:27] Speaker 04: Fifth line up. [00:19:31] Speaker 04: There was deliberate indifference to serious medical needs by when it was serious back pain while standing before all named defendants on crutches. [00:19:40] Speaker 04: Violating cruel and unusual punishment held in a small cage. [00:19:44] Speaker 04: Well, I'll figure it out later. [00:19:45] Speaker 04: I still don't see the language that said he was forced to stand. [00:19:48] Speaker 03: I think it's a paraphrase. [00:19:49] Speaker 03: It's not exactly. [00:19:50] Speaker 03: Oh, I see. [00:19:50] Speaker 03: He doesn't have the exact words. [00:19:51] Speaker 03: All right. [00:19:52] Speaker 00: All right. [00:19:53] Speaker 00: And even still, it's a reasonable inference to draw from the complaint. [00:19:56] Speaker 00: He's got crutches. [00:19:57] Speaker 00: He's standing on crutches before all named defendants. [00:20:00] Speaker 00: He describes the cage as narrow or small. [00:20:05] Speaker 00: There's no factual support whatsoever for the assertion that he could have sat down on the topic of factual assertions that are in the complaint. [00:20:13] Speaker 00: The defendants assert for the first time in the reply brief that Mr. Howard could have turned on the shower and drank from the shower. [00:20:21] Speaker 00: There's no support for the conclusion that he could have done that. [00:20:24] Speaker 00: This is a shower cage in a secure facility. [00:20:27] Speaker 00: It's entirely plausible to conclude that it's only operable from outside of the cage. [00:20:32] Speaker 04: Besides when she's standing on crutches. [00:20:36] Speaker 00: He's also fully clothed in the shower. [00:20:38] Speaker 00: So if he turned the cage on, he has no clue how much longer he's going to be in there. [00:20:42] Speaker 00: He's going to be soaking wet. [00:20:43] Speaker 00: that's not an adequate solution for the conditions of his confinement. [00:20:48] Speaker 00: I'd like to, again, draw the comparison to the cases that come before the court. [00:20:53] Speaker 00: There's hope in which the factual situation is extremely similar to what Mr. Howard experienced, and the court found it to be a clear and obvious Eighth Amendment violation. [00:21:04] Speaker 00: If anything, the conditions of Mr. Howard's confinement were more severe than the conditions that Mr. Hope experienced. [00:21:11] Speaker 00: Mr. Howard was forced to stand for longer. [00:21:13] Speaker 00: He arguably experienced more pain. [00:21:16] Speaker 00: He was denied medication. [00:21:17] Speaker 00: He was given no water. [00:21:19] Speaker 00: And the only facts that the defendants point to that distinguish this case from Hope, that is that Hope occurred on a hot summer day. [00:21:28] Speaker 00: and at one point the guards taunted the plaintiff with water. [00:21:31] Speaker 00: The Supreme Court explicitly stated that neither of those facts were material to its decision. [00:21:36] Speaker 00: The court described them as embellishments that exacerbated the Eighth Amendment violation but were in no way necessary to it. [00:21:44] Speaker 00: So those can't possibly be of constitutional significance here. [00:21:48] Speaker 00: Additionally, the defendants haven't even attempted to distinguish this case [00:21:52] Speaker 00: from the version of the facts that the district court assumed. [00:21:55] Speaker 00: As to Buckley, Buckley was the case in which the plaintiff was forced to stand for 11 hours without water and without medical care. [00:22:05] Speaker 00: The conditions of Mr. Howard's confinement are closely on point to Buckley and in fact are much more severe given the significant pain that Mr. Howard experienced throughout this confinement. [00:22:16] Speaker 00: Defendants haven't even attempted to distinguish those cases. [00:22:19] Speaker 00: They just resort to these factual assertions that they didn't have knowledge, they didn't have the ability to change the conditions of the confinement, and the court of course can't accept those assertions as true on a motion to dismiss. [00:22:31] Speaker 00: One of the other factual points that I haven't covered yet is the defendant's assertion that they didn't have the ability to ameliorate the conditions of Mr. Howard's confinement. [00:22:40] Speaker 00: It is absolutely a plausible inference to draw from the complaint that the defendants were capable of moving Mr. Howard to another secure location in the facility. [00:22:49] Speaker 00: They're correction officers. [00:22:51] Speaker 00: That's one of the core jobs that they've got. [00:22:53] Speaker 00: Even if they couldn't do it without approval, they should have gotten approval. [00:22:56] Speaker 00: There's no indication that they even tried. [00:22:58] Speaker 00: And the defendants haven't even attempted to justify the fact that the defendants did not even give Mr. Howard some water or some food. [00:23:06] Speaker 00: This is dinner time. [00:23:07] Speaker 00: He misses a meal. [00:23:08] Speaker 00: They didn't give him a dinner. [00:23:10] Speaker 00: They didn't give him a restroom break. [00:23:11] Speaker 00: They didn't give him his required medication. [00:23:13] Speaker 00: There's no plausible justification for the denial of those necessities over this eight hour period. [00:23:20] Speaker 00: Their argument on [00:23:21] Speaker 00: The authority that Mr. Howard needs to allege that the defendants have is based on a misapplication of this court's decision in Lear, which just stands for the simple proposition that the court needs to conclude that it's plausible the defendants were capable of ameliorating those conditions. [00:23:38] Speaker 00: It's absolutely plausible that Mr. Howard could have been given a cup of water. [00:23:41] Speaker 00: Mr. Howard doesn't need to specifically allege defendants were authorized to give me water in order for that allegation to be plausible. [00:23:53] Speaker 00: If there are no further questions, I'll respectfully rest and ask the court to affirm the district court's decision. [00:23:58] Speaker 00: Thank you for your time. [00:23:59] Speaker 03: Thank you very much. [00:24:00] Speaker 03: I think we have a little bit of time for rebuttal. [00:24:09] Speaker 01: First, I'd like to thank Judge Berzon for pointing out that there is actually no allegation, probably misspoke, that with respect to that he was forced to stand by anybody. [00:24:19] Speaker 01: Second of all, I would like to [00:24:21] Speaker 01: clear up something in the record that I might probably have maybe misled the court. [00:24:26] Speaker 01: Because when I've seen showers at NDOC prisons, the shower has a handle for the inmate to do to operate the shower. [00:24:35] Speaker 01: But I have now been since informed that that has to be turned on by the bubble beforehand. [00:24:41] Speaker 01: So I just want to make that clear that that's in the record so that I'm not misleading the court. [00:24:48] Speaker 01: But the thing is that [00:24:49] Speaker 01: But there is no allegation here that they were even present when all this was going on. [00:24:54] Speaker 01: There's no allegation in the complaint at all that says that any of these defendants were present. [00:24:58] Speaker 01: It says that he made a complaint. [00:25:00] Speaker 01: My reading of the complaint is that he made a reading of the complaint. [00:25:03] Speaker 01: And again, what I would like to say is this court has a de novo review. [00:25:06] Speaker 01: This is de novo review. [00:25:07] Speaker 01: You're not supposed to take anything that the district court says. [00:25:10] Speaker 01: You're supposed to review this just as if the district court never made a ruling. [00:25:14] Speaker 01: And that's your obligation in doing a de novo review. [00:25:19] Speaker 01: But there was no allegation here that any of these defendants were even there. [00:25:23] Speaker 01: And it's not a reasonable inference. [00:25:25] Speaker 01: When there are sergeants, lieutenants, and medical staff present, that these officers would have any authority to change the conditions of confinement. [00:25:36] Speaker 01: When medical staff aren't saying that anything's wrong, they don't have any. [00:25:41] Speaker 01: That's the Peralta case. [00:25:42] Speaker 01: And also the Lear case. [00:25:44] Speaker 01: He has to allege specific facts. [00:25:45] Speaker 01: Lear says that specifically. [00:25:47] Speaker 01: He must allege specific facts showing that they [00:25:49] Speaker 01: the ability to change the conditions. [00:25:51] Speaker 01: There is no allegation here. [00:25:53] Speaker 01: Under those facts alone, and with respect to the Hope case, those are facts that the Supreme Court [00:26:03] Speaker 01: Not that they overlooked or that they just adding basically were saying that this was this they characterized it as that This is just so intolerable If those facts weren't there it would not have been an intolerable case where they can decide it without having prior precedent It was those facts which made it [00:26:20] Speaker 01: We don't have those facts here, and therefore there is, I respectfully request the court to overturn the district court because the defendants are entitled to qualify to immunity as there is no authority. [00:26:31] Speaker 01: In fact, there are numerous authorities that go the other direction, and I would say to reverse the district court on that matter. [00:26:36] Speaker 01: Thank you, Your Honors. [00:26:37] Speaker 03: Thank you both sides for the argument. [00:26:39] Speaker 03: This case is submitted, and we're adjourned for the day.