[00:00:00] Speaker 00: Good morning, Your Honors. [00:00:01] Speaker 00: I'm Dee Dangaran. [00:00:02] Speaker 00: They them pronouns for the plaintiff appellant, Mr. Elijah Kaneakua. [00:00:06] Speaker 00: Kaneakua? [00:00:07] Speaker 00: Kaneakua, yes. [00:00:09] Speaker 00: I'd like to reserve three minutes. [00:00:10] Speaker 01: I can't imagine how much time I've practiced this week trying to get these names right. [00:00:15] Speaker 01: Go right ahead, please. [00:00:16] Speaker 00: Yes. [00:00:16] Speaker 00: So there are two issues in this appeal, the Bivens step one new context analysis and qualified immunity. [00:00:24] Speaker 00: First, the various factors that the district court and the defendants have relied on to do not make this case meaningfully different from Carlson versus Green. [00:00:33] Speaker 00: This court's published decisions in Watanabe versus Dare and Standard versus Die both support a conclusion that Mr. Kaneakua's Bivens claim is in the same context as Carlson. [00:00:43] Speaker 00: Second, this court should not reach qualified immunity right now on appeal of the motion to dismiss with no district court decision on the issue given that there are disputed facts. [00:00:53] Speaker 00: If this court decides to reach the issue, it should hold that defendants do not have qualified immunity. [00:00:58] Speaker 00: Both defendants delayed Mr. Kaniakua's necessary care by not providing him with a prompt specialist consultation after being on notice of his serious medical needs. [00:01:08] Speaker 00: This court's opinion in Jett v. Penner clearly establishes the unconstitutionality of both a medical official and a warden who delayed in providing necessary medical care. [00:01:19] Speaker 00: While this court should not permit defendants to incorporate medical records into this appeal, those records actually support Mr. Kaneakua's position, particularly in light of Jenner. [00:01:28] Speaker 00: This court should reverse. [00:01:30] Speaker 00: I'll start with the antecedent Bivens question, but I hope to spend the bulk of my time on qualified immunity because there are a few interrelated issues there. [00:01:37] Speaker 00: First, Egbert discussed alternative remedial schemes as a step two consideration. [00:01:42] Speaker 00: This court so held and understood in Watanabe. [00:01:45] Speaker 00: So the district court's discussion of the administrative remedy procedure at step one was erroneous. [00:01:51] Speaker 00: There are seven different factors discussed by the district court and defendants with some various analyses. [00:01:58] Speaker 00: The district court step one factors were severity of the harm or injury and the duration of the harm. [00:02:04] Speaker 00: Both Watanabe and Stannard have held as a categorical claim or categorical issue that these [00:02:10] Speaker 01: When you say the district court's step one factors, you mean the factors the district court relied upon to decide that this was a new context? [00:02:16] Speaker 00: Yes, Your Honor. [00:02:17] Speaker 00: So Watanabe and Standard, Standard discussed difference of degree, Watanabe discussed severity explicitly. [00:02:24] Speaker 00: So those factors, because of those precedents, should not be used to show a meaningful difference here. [00:02:31] Speaker 00: The defendants point to some different factors that the district court did not discuss, three of which have already been addressed by this court's precedents and two that are arguably new. [00:02:41] Speaker 00: I'll start with those already addressed. [00:02:42] Speaker 01: Before you get there, can I just, before you dive in, I think you're going to talk about the seven factors. [00:02:48] Speaker 01: I'm interested in talking about the decision tree. [00:02:51] Speaker 01: In particular, the district court's comment that the step two factors have collapsed and it's really a one-step test. [00:02:58] Speaker 01: Could you speak to that? [00:02:59] Speaker 00: Yes, Your Honor. [00:03:00] Speaker 00: So Watanabe discussed exactly that already, and so this court should not change that analysis. [00:03:05] Speaker 00: The administrative remedy procedures, if that was a part of step one, it would mean every single Carlson claim would be found in new context. [00:03:13] Speaker 00: And that cannot be the case because the court in Egbert upheld Carlson as precedent and because the court in Egbert actually used a two-step process. [00:03:21] Speaker 00: So the discussion in Egbert is dicta, just speaking to the general principles of how the ARP is actually, or rather, how the special factors are considered. [00:03:30] Speaker 00: There has, forever, there's been this discussion of the guiding principles of the separation of powers in the Bivens and Palaces. [00:03:37] Speaker 04: Well, I have to say, I long ago learned that it is dangerous to dismiss a Supreme Court statement as dictum. [00:03:45] Speaker 00: Yes, Your Honor. [00:03:46] Speaker 00: The Supreme Court did use the two-factor analysis. [00:03:49] Speaker 00: So again, the discussion of those principles are found far before Egbert, and so Egbert was entirely a step-two case. [00:03:55] Speaker 00: So I say dictum only because it was quoting principles from cases as old as Molesko. [00:04:01] Speaker 00: In Abbasi, the two-step analysis provided in Abbasi has not been displaced. [00:04:06] Speaker 04: The district court did not have the benefit of our decision in Watanabe. [00:04:11] Speaker 00: Correct. [00:04:12] Speaker 04: My guess is that Watanabe had been on the books at the time the district court decided that this case would have come out the other way. [00:04:19] Speaker 04: Watanabe is pretty clear and it seems to me that your case is almost directly on point. [00:04:23] Speaker 00: I agree, Your Honor. [00:04:24] Speaker 00: So there are some things that Watanabe, as I said, actually already decides. [00:04:28] Speaker 00: And those factors include this two-step question. [00:04:31] Speaker 00: But I'll move to some of the other factors now, Your Honor, if I've answered your question fully. [00:04:35] Speaker 00: So defendants point to the systemic BOP practices. [00:04:38] Speaker 00: They list medical, administrative, and coordination with outside providers. [00:04:42] Speaker 00: Carlson included administrative defendants up to the head of BOP. [00:04:47] Speaker 00: And Watanabe and Standard both included outside specialists. [00:04:50] Speaker 00: So this is not a factor that should create a new context. [00:04:53] Speaker 00: They point to the transfer to an outside hospital specifically, that that transferring creates a new context, but Carlson included a transfer to a hospital. [00:05:00] Speaker 00: That was the need that was required, and Watanabe also dealt with an outside specialist transfer, so to speak. [00:05:06] Speaker 00: And finally, they point to the generality or specificity of the conduct. [00:05:09] Speaker 00: Here, it's a delay claim. [00:05:10] Speaker 00: Carlson included a delay claim. [00:05:12] Speaker 00: There was an eight-hour delay in providing necessary care, and so that's not a new context, either, as Standard and Watanabe have pointed to. [00:05:18] Speaker 00: So the two arguably new factors are this resource allocation or triaging idea and the argument that the warden is improper as a different kind of actor. [00:05:30] Speaker 00: That one, I think, is easiest. [00:05:31] Speaker 01: The warden what? [00:05:33] Speaker 00: They argue that the warden is an improper defendant. [00:05:36] Speaker 00: that's a new context, and it's not because there was a warden as a defendant in Carlson. [00:05:39] Speaker 00: But the resource allocation point is discussed, I think, in the Seventh Circuit decision in Brooks. [00:05:45] Speaker 01: I think there was a warden at the outset of Carlson, right, and there wasn't proper service. [00:05:49] Speaker 00: I'm not certain, Your Honor. [00:05:51] Speaker 00: I do think that the warden... I have your position on that. [00:05:55] Speaker 00: Okay, thank you. [00:05:56] Speaker 00: So every prison medical care case must take into account this administrative idea of the resource allocation and the triaging. [00:06:03] Speaker 00: In effect, this argument is saying that, again, Carlson should be overturned sub silencio, despite the Supreme Court upholding Carlson as a Bivens context. [00:06:13] Speaker 01: Jett versus Penner as... The Supreme Court upholding Carlson in a Bivens context. [00:06:18] Speaker 01: They decided Carlson quite some time ago, the district court, and then, as you know, Bivens has fared sort of on life support. [00:06:25] Speaker 01: That was the district court's concern. [00:06:27] Speaker 01: He was very upfront about that, right? [00:06:29] Speaker 01: He said they had writings on the wall. [00:06:31] Speaker 01: What do you think we ought to do about that if we are convinced that the Supreme Court would not decide Carlson the same way today? [00:06:37] Speaker 00: The key point, your honor, is that Egbert has continued to say, and Egbert's the Supreme Court's last statement on this, that Carlson remains one of the three clearly established Bivens precedents. [00:06:48] Speaker 00: And so Carlson is not dead until the Supreme Court says so, and this court could not reach that issue and say that it is. [00:06:55] Speaker 00: No court can do that. [00:06:56] Speaker 00: And so the writing on the wall idea is actually in tension with the Supreme Court in Egbert saying Carlson's good law. [00:07:03] Speaker 04: qualified doctor to come around and declare the patient dead, even though the patient's not breathing? [00:07:11] Speaker 00: I mean, yes. [00:07:13] Speaker 00: I think that that's kind of an issue here. [00:07:16] Speaker 00: Egbert has prevailed, and Carlson claims survive, even if it's kicking. [00:07:22] Speaker 04: Or a different answer would be that we as a three-judge panel, I think we're governed by Watanabe. [00:07:28] Speaker 00: Exactly, Your Honor. [00:07:30] Speaker 00: So in JET, I'll just point out at page 1097, quoting this court's decision in McGuckin, JET said, the state's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns. [00:07:43] Speaker 01: Counsel, could you, you went past something kind of quickly in response to Judge Fletcher's question, which is at the top of my notes. [00:07:51] Speaker 01: The district court didn't have Watanabe. [00:07:52] Speaker 01: Watanabe is pretty well on all fours with your case. [00:07:56] Speaker 01: Aren't we bound? [00:07:58] Speaker 01: Bound by- We'll stop by our own precedent. [00:08:00] Speaker 00: Yes, Your Honor. [00:08:01] Speaker 00: I think that you are bound by Watanabe here. [00:08:03] Speaker 02: Can you move on to the qualified immunity argument? [00:08:05] Speaker 00: Yes. [00:08:07] Speaker 00: Okay. [00:08:07] Speaker 01: So- You said at the top of the decision tree that you thought we ought not reach qualified immunity. [00:08:14] Speaker 00: Yes. [00:08:14] Speaker 00: And that's under this court's precedent, Coits versus Keele. [00:08:18] Speaker 00: So the qualified immunity analysis takes as true only the allegations in the plaintiff's complaint. [00:08:24] Speaker 04: in the event we do decide to reach it, here's how you would like us to decide it. [00:08:27] Speaker 00: Yes, Your Honor. [00:08:29] Speaker 00: So step one is, is there an allegation of a constitutional claim on the merits? [00:08:35] Speaker 00: I'll start with the defendant's liability, because I think that's a big question. [00:08:38] Speaker 04: This may help you at least address my concerns here. [00:08:42] Speaker 04: Do we look at this as, is it clear that there was a constitutional violation? [00:08:47] Speaker 04: Or do we look at this in terms of, is it clear that there is a Bivens remedy for the constitutional violation? [00:08:54] Speaker 04: Because there may be a different answer to those two different questions. [00:08:57] Speaker 00: Yes. [00:08:58] Speaker 00: I think for the qualified immunity analysis, the Bivens question has been met. [00:09:03] Speaker 00: So Bivens is an antecedent question. [00:09:05] Speaker 00: Once that's resolved, the rest of the cases open up for the qualified immunity analysis. [00:09:11] Speaker 00: I hope I answered your question, Judge Fletcher. [00:09:12] Speaker 04: Although I might say it a little differently, and maybe I'm talking to the other side as well, qualified immunity really is about giving fair warning to the people who are on the ground acting. [00:09:24] Speaker 04: And if they're not given fair warning as to whether something is constitutional or unconstitutional, we give them qualified immunity. [00:09:30] Speaker 04: On the other hand, if the constitutional rule is clear, they've been given fair warning. [00:09:35] Speaker 00: Yes. [00:09:35] Speaker 04: So I would view the question as to whether or not the constitutional right is clear, rather than whether there's a Bivens remedy for violation of the clear constitutional right. [00:09:44] Speaker 04: I agree, totally. [00:09:45] Speaker 04: That's addressed to you when you get up. [00:09:48] Speaker 00: So there's a 2006 decision that makes this clear in Jet versus Penner, but I'll start with the step one analysis because I don't want to skip it. [00:09:55] Speaker 00: So Dr. Kwan is one defendant and Warden Deer is the second. [00:10:00] Speaker 00: The complaint was filed April 29th, 2022. [00:10:03] Speaker 00: So our statutory damages window here. [00:10:05] Speaker 00: is April 29th, 2020 to April 29th, 2022. [00:10:09] Speaker 00: We concede injunctive relief is moot. [00:10:11] Speaker 00: Dr. Kwan did not provide the necessary care from 2020 through Mr. Kaniakua's transfer out of FTC Honolulu in spring 2021. [00:10:19] Speaker 00: That's about a year. [00:10:21] Speaker 00: That's at ER 27. [00:10:23] Speaker 00: Dr. Kwan saw Mr. Kaniakua in January of 2022 when he's back in FTC Honolulu. [00:10:31] Speaker 00: And we argue, based on the complaint, that he informed Dr. Kwan in that conversation of severe pain and requested immediate treatment. [00:10:40] Speaker 01: Can I ask you about the, you're now doing a factual recitation, of course we're at the 12 points level, so are you limiting yourself to the complaint, the allegations in the complaint, or are you incorporating any of the medical records by reference? [00:10:50] Speaker 00: So I argue that we should limit, the court should limit itself to the complaint. [00:10:55] Speaker 01: Right, I appreciate that. [00:10:56] Speaker 01: So I just want to make sure that what you're arguing is just from the complaint. [00:10:58] Speaker 00: Yes, yes, that is. [00:11:00] Speaker 00: And I'll turn to the incorporated records next. [00:11:03] Speaker 00: So based on, and Mr. Kanekawa also argues that Dr. Kwon did not give him pain medication. [00:11:08] Speaker 00: That's the disputed fact. [00:11:11] Speaker 00: The plaintiff's complaint says, I did not receive that. [00:11:13] Speaker 00: Defendants have pointed to records attempting to say that he did. [00:11:16] Speaker 00: And again, no timely consultation. [00:11:19] Speaker 00: As to Warden Dare, the complaint alleges that Warden Dare failed to provide immediate medical attention by not granting the medical grievance and trivialized the medical issue of the pain and the suffering he was in and didn't grasp how urgent it was. [00:11:34] Speaker 00: And that's at ER 27. [00:11:36] Speaker 00: So I think that on those facts alone, he has established a clear Eighth Amendment deliberate indifference claim for that delay in medical care. [00:11:44] Speaker 00: Taking the medical records into account is an argument that I don't know that Mr. Kaneakua was equipped on pro se below to make this argument in his opposition brief, though he did not make an opposition brief at all. [00:11:57] Speaker 00: But on appeal, we argue that under Ritchie, this court's discussion of Ritchie, the documents can only be incorporated by reference if the plaintiff refers extensively to them and or the document forms the basis of the plaintiff's claim. [00:12:11] Speaker 00: Mere mention is not enough, is what Rishi says. [00:12:14] Speaker 00: And so, because these records are not integral to Mr. Kani Akua's claim, they should not be taken into consideration. [00:12:20] Speaker 00: The records are both under-inclusive and over-inclusive. [00:12:23] Speaker 00: They do not show the care between 2020 and spring 2021. [00:12:26] Speaker 00: nor anything regarding the March 16th appointment that is referenced in the grievance response at ER 31. [00:12:33] Speaker 00: They contain the January appointment with Dr. Kwan, but nothing between that appointment and our filing date of the complaint. [00:12:40] Speaker 00: That's why they're under-inclusive. [00:12:42] Speaker 00: They are over-inclusive by bringing in material from far outside the scope of this damages claim. [00:12:47] Speaker 00: They go all the way through November 2022. [00:12:50] Speaker 00: Mr. Kanekua's position is that you can't use general references to simply the fact that the warden and Dr. Kwon were aware of his diagnosis of this cyst to bring in all the medical records about it, including after the date of filing the complaint. [00:13:10] Speaker 01: The whole time? [00:13:13] Speaker 00: I'll go into it just for this final point, Your Honor. [00:13:16] Speaker 01: You have two minutes left, so are you going to have a rebuttal? [00:13:19] Speaker 00: Yes. [00:13:19] Speaker 01: Then you're going to have to reserve time for it. [00:13:21] Speaker 00: Okay. [00:13:21] Speaker 00: Thank you, Your Honor. [00:13:22] Speaker ?: Not at all. [00:13:23] Speaker 01: We'll hear from the government, please. [00:13:32] Speaker 03: Good morning, Your Honors. [00:13:33] Speaker 03: May it please the court, Sydney Specter, representing the appellees, Warden Estella Dare and Dr. Nathan Kwan. [00:13:40] Speaker 03: Keneakua is seeking to hold two individual Bureau of Prison Employees personally liable for damages for a delay in him receiving an outside consultation with an ear, nose, and throat specialist for treatment of his cyst. [00:13:52] Speaker 03: Dr. Kwan, the treating physician, he ordered an outside consultation with an ENT upon meeting with Keneakua before he was transferred to FCI Sheridan in 2020, and also a few days after he was transferred back to FDC in Honolulu. [00:14:07] Speaker 03: and such circumstances are meaningfully different from where personal liability was recognized as a possible cause of action in Carlson. [00:14:17] Speaker 03: Excuse me. [00:14:18] Speaker 02: Are you arguing that this case is distinguishably different from Watanabe? [00:14:23] Speaker 03: Yes, Your Honor. [00:14:23] Speaker 03: I am in Watanabe, which is currently pending a petition for rehearing en banc in this court. [00:14:30] Speaker 03: This court rejected the arguments that a difference in nature and severity of an inmate's injuries created a meaningful difference, and that the BOP's administrative remedy program alone rendered that case a new context. [00:14:43] Speaker 03: And that's not what we're arguing here. [00:14:45] Speaker 03: Here, the new context is because recognizing Kanekua's claim would require a novel intrusion into BOP's systematic management of medical care. [00:14:55] Speaker 01: Why is that? [00:14:56] Speaker 03: So in Watanabe, if I can talk about the facts there for a second, the claim that was recognized as not meaningfully different from Carlson was against a lie nurse who allegedly told the defendant to stop being a crybaby about his complaints about a broken... It's a long delay in getting the care, right? [00:15:14] Speaker 01: There was the beating, the long delay before there was a recognition of the injury, and there's this remark from the... Stopping a crybaby and a refusal to refer him to a hospital. [00:15:23] Speaker 03: And here, the facts are different. [00:15:26] Speaker 03: It's not disputed that Dr. Kwan did make a referral to an outside specialist, and the delay here is caused not by something within Dr. Kwan's control. [00:15:37] Speaker 01: I think it is. [00:15:38] Speaker 01: Can you back up before you say that that's not disputed, because I read that a little bit differently. [00:15:42] Speaker 01: He wrote, and again, you know, he's per se. [00:15:44] Speaker 01: But he wrote that the response he got was not truthful. [00:15:48] Speaker 01: He begged to differ. [00:15:49] Speaker 01: He said if that appointment was to be April 7th, I'm now filing on April 17th, this is not materialized. [00:15:55] Speaker 01: They're not getting me the help I need. [00:15:56] Speaker 01: I'm paraphrasing, of course. [00:16:00] Speaker 01: So is it really undisputed? [00:16:02] Speaker 03: Yes, Your Honor. [00:16:04] Speaker 03: I understand that that fact, I agree, is disputed in particular. [00:16:08] Speaker 01: He says that they didn't get him the care they needed. [00:16:11] Speaker 01: They didn't get him set up for an outside consultation. [00:16:13] Speaker 01: Isn't that the issue you're going to here? [00:16:15] Speaker 03: So at ER 26, which is the cause of action page of plaintiff's complaint, he, Kanekua says that he was awaiting outside consultation for a pre-auricular cyst, which I take that to mean that, oh, and he says that he was on medical hold at the time he was transferred, which, [00:16:32] Speaker 03: I believe or I take to mean that he understands that he was referred to an outside specialist at the time that he was transferred, presumably by Dr. Kwan, although I don't know who did that exactly. [00:16:45] Speaker 03: And in ER 27, when he's detailing the issues with the warden's response, [00:16:53] Speaker 03: He alleges that the consultation was removed from his record. [00:16:59] Speaker 03: He doesn't necessarily dispute that the consult request was made from Dr. Kwan. [00:17:05] Speaker 03: We don't have a, the allegations at least has pled in this complaint, which I understand he's pro se, but you still need to be guided by the complaint. [00:17:14] Speaker 03: He's alleging a delay that's outside Dr. Kwan's control. [00:17:18] Speaker 03: He made the referral, then he was transferred to another prison, which, you know, [00:17:24] Speaker 03: He says he shouldn't have been transferred in the first place. [00:17:26] Speaker 01: I don't read the complaint as encompassing the period of time. [00:17:28] Speaker 01: I think it's about six months when he was transferred to Sheridan and back. [00:17:32] Speaker 01: I would grant you that that would be problematic, but I don't think that's what he's saying. [00:17:38] Speaker 01: And he's pro se, and he disputes that they got him the referral. [00:17:42] Speaker 01: I read this as a contested point. [00:17:46] Speaker 01: Respectfully, Your Honor, I disagree, but I think 107... Said he never reported that it was a congenital condition and these records are not truthful about what he reported. [00:17:53] Speaker 03: To the extent that he's bringing a claim about records not being truthful, which I think is definitely true of his claim against Warden Dare, that she did this improper investigation and relied upon improper records, that is a far cry from the context of Carlson, which is holding direct providers liable for... Well, it depends on how granular you wanna get. [00:18:14] Speaker 01: Again, it's a pro se complaint. [00:18:15] Speaker 01: We're looking at Watanabe, which is our binding precedent. [00:18:20] Speaker 01: This is an inmate who says he's got this painful condition and he's requesting care and he's not getting it and he's not getting it. [00:18:27] Speaker 01: And your strongest argument, this is the new context, is what exactly? [00:18:31] Speaker 03: My strongest argument is that this is a new, it can't be, plaintiff wants you to hold it all, after Watanabe, all deliberate indifference claims brought by inmates related to failure to provide medical care. [00:18:45] Speaker 03: are cognizable as Bivens actions and that simply can't be the case. [00:18:49] Speaker 04: Why can't that be the case? [00:18:50] Speaker 04: I can understand if you make an argument that says, well, this is not a valid deliberate indifference claim. [00:18:56] Speaker 04: I get that. [00:18:58] Speaker 04: But assume that it's a valid deliberate indifference claim. [00:19:02] Speaker 04: Are you trying to differentiate among deliberate indifference claims? [00:19:05] Speaker 04: Some are okay and some aren't? [00:19:08] Speaker 04: Help me understand what you're arguing. [00:19:10] Speaker 03: Yes, Your Honor. [00:19:12] Speaker 03: Absolutely true that some deliberate indifference claims, such as this court held in Watanabe, can proceed as cognizable Bivens actions because they're not meaningfully different. [00:19:22] Speaker 03: But this court also recognized in Chambers versus Herrera, which is, I'm fairly certain, also post-dated Egbert's most recent holding about how stringent we should be about this analysis. [00:19:36] Speaker 03: In Chambers, which was a broken wrist and a broken arm, the court, [00:19:41] Speaker 03: did not hold that that was cognizable as a Bivens action necessarily, instead it remanded it for further factual pleadings to determine whether it was. [00:19:50] Speaker 04: Did it remand because it was not well established on that record as to whether or not there had been deliberate indifference on a constitutional violation? [00:19:58] Speaker 03: No, Your Honor. [00:19:59] Speaker 03: The remand order said even though plaintiff brought an Eighth Amendment claim, other Egbert factors need to be addressed to determine whether the claim arises in a different context than Carlson. [00:20:07] Speaker 04: Are you arguing that that case is inconsistent with Watanabe? [00:20:10] Speaker 04: I'm reading Watanabe as a government, our deliberations here. [00:20:14] Speaker 03: No, I believe they're consistent, Your Honor. [00:20:16] Speaker 03: I think Watanabe can be read to say that a difference in [00:20:20] Speaker 03: That the to the extent that the district court's decision was based on this isn't a life threatening injury here. [00:20:27] Speaker 03: This is about assist and Carlson is about asthma resulting in death or that this took place. [00:20:34] Speaker 03: This is about a delay over a series of years and [00:20:37] Speaker 03: Carlson was this emerging eight-hour situation. [00:20:40] Speaker 03: I'm saying Watanabe forecloses that, Your Honor. [00:20:42] Speaker 04: I don't want to cut you short, and I don't want to put words in your mouth so you can disagree with what I'm attributing to you. [00:20:48] Speaker 04: I think your argument is there are very serious deliberate indifference claims and they survive. [00:20:53] Speaker 04: There are deliberate indifference claims that are valid, but the injury is not so bad and they don't survive. [00:21:00] Speaker 04: Is that your argument? [00:21:01] Speaker 03: No, Your Honor, my argument is that when a plaintiff pleads a deliberate indifference, Bivens action, if it presents a new context from Carlson, such as here, which is that the gravamen of the complaint is this two year delay, which is due to, it's not alleging individual misfeasance against Dr. Kwan or Warden Dare. [00:21:25] Speaker 03: Those facts would also go to the merits, which I think is, [00:21:29] Speaker 03: what you're getting at, but it's implicating various policies that are outside those individual defendants' control. [00:21:37] Speaker 04: I'm not understanding your answer to my question. [00:21:41] Speaker 04: It still seems to me you're trying to differentiate between really serious and deliberate indifference claims and not very serious deliberate indifference claims, in both of which, however, there is deliberate indifference. [00:21:54] Speaker 04: Let's have deliberate indifference to a fairly minor condition, but it nonetheless amounts to cognizable and deliberate indifference. [00:22:02] Speaker 04: Does that survive? [00:22:03] Speaker 04: Can that claim go forward? [00:22:10] Speaker 03: The reason it's relevant to this analysis is because routine... That's a yes or no. [00:22:16] Speaker 04: Does the fairly minor deliberate indifference claim that is nonetheless deliberate indifference, does that claim go forward? [00:22:25] Speaker 03: I think the answer is it depends and probably not because those claims are the sort of claims that are more likely to present intrusion from the judiciary into the functioning of the executive branch and would be essentially opening. [00:22:38] Speaker 04: So I think if you're making the argument that there are serious deliberate and different claims that can go forward and some not very serious but nonetheless deliberate and different claims that cannot go forward, that was the position of Judge Smith in dissent in Watanabe. [00:22:52] Speaker 04: We rejected that. [00:22:53] Speaker 03: Correct, Your Honor, but I'm not arguing, Watanabe was framed in terms of nature and severity in and of themselves, and that's not what I'm arguing here. [00:23:01] Speaker 01: So you're arguing that this case somehow represents a greater intrusion into the policy choices made and the administrative choices made in the very difficult job of running a prison. [00:23:12] Speaker 01: That's what I think you're saying. [00:23:13] Speaker 01: Absolutely, Your Honor. [00:23:15] Speaker 01: That's helpful. [00:23:16] Speaker 01: So how does this case represent any greater intrusion than Watanabe? [00:23:22] Speaker 03: So this case involves, Dr. Kwan made the outside referral, and it involves delays caused by prison transfers, availability of outside special, in a hospital situation where you can just show up. [00:23:34] Speaker 01: Can I stop you right there? [00:23:35] Speaker 01: Excuse me, can I stop you? [00:23:36] Speaker 01: Because you keep starting from the premise that the referral was made. [00:23:40] Speaker 01: Sure. [00:23:41] Speaker 01: But I thought a minute ago you agreed that that's actually a contested fact, about whether he actually made the referral. [00:23:48] Speaker 01: the plaintiff argues that that didn't happen, that they're saying now after the fact that I was supposed to have an appointment on April 7th and I'm here it is at April 17th, this isn't happening. [00:23:59] Speaker 03: Your Honor, I think it is disputed whether there was some appointment on April, that April appointment I believe is in dispute, but I think it's undisputed that Dr. Kwan made the outside [00:24:11] Speaker 03: the referral to a specialist. [00:24:13] Speaker 01: Well, that the referral didn't happen is what I'm getting at. [00:24:15] Speaker 01: My question, I'm trying to follow up with Judge Fletcher, and I'm not trying to ruin your day. [00:24:19] Speaker 01: I'm trying to get at this. [00:24:20] Speaker 01: You think this case would represent a larger intrusion into the administrative decisions of the very challenging job of trying to run a federal prison. [00:24:30] Speaker 01: And I appreciate that. [00:24:31] Speaker 01: And that's your argument about why this is a new context. [00:24:34] Speaker 01: I'm just trying to figure out why this is different than, you know, represents a greater intrusion than Watanabe. [00:24:41] Speaker 01: And if he's arguing, they didn't give me the outside care, why is this different? [00:24:48] Speaker 03: Because Watanabe dealt with, one, I don't believe the prison transfers were an issue and they weren't alleging things that were outside the control of the individual defendant in that case who the claim survived against. [00:25:03] Speaker 03: I believe there were other defendants at first, but the surviving claim was against a line nurse [00:25:09] Speaker 03: who said, stopping a crybaby, I'm not referring you to the hospital. [00:25:14] Speaker 01: Well, he's complaining about pain. [00:25:15] Speaker 01: Now we're talking about Watanabe, right? [00:25:17] Speaker 01: He's complaining about pain. [00:25:18] Speaker 01: He had this beating in prison. [00:25:20] Speaker 01: I think he was put in solitary confinement for an extended period of time. [00:25:23] Speaker 01: It took a long time for him to get. [00:25:24] Speaker 01: And then in the tail end of that sequence, there was this very callous statement by a nurse. [00:25:30] Speaker 01: But I think that the gravamen, we have a difference of opinion about how to pronounce that word. [00:25:38] Speaker 01: See? [00:25:38] Speaker 01: But I think the substance of that claim really has to do with, they didn't get me the care, right? [00:25:44] Speaker 01: They didn't get me the care. [00:25:45] Speaker 01: And you're going to the, I think it really feels like, you know, microscopic level about, that I don't think is correct according to our case law. [00:25:53] Speaker 01: But that's why I'm trying to figure out why this is a larger incursion. [00:25:57] Speaker 03: Well, I think it's because whose fault is it that he didn't get the care and in- It may not be a successful claim. [00:26:05] Speaker 01: We're just trying to figure out whether or not it can go forward. [00:26:07] Speaker 03: Exactly, Your Honor, and in our view, Connecticut is trying to hold Dr. Kwan and Warden Dare liable, personally liable, for things that are simply outside their control and rely on a host of actors besides themselves. [00:26:25] Speaker 02: Would you change your view in terms of the argument that you're making if we construe the complaint to be alleging the same deprivation of care [00:26:36] Speaker 02: Because I think the distinction you're drawing is with respect to these policies that are outside the control of the two defendants versus the claim, the direct allegation that he was denied treatment. [00:26:49] Speaker 02: And if we disagree with you that this looks much more like, especially if we liberally construe the complaint to include sort of a deprivation of treatment, [00:27:00] Speaker 02: Would you then agree that this is on all fours with our most recent decision in Watanabe? [00:27:10] Speaker 03: I think if you frame the complaint generally as a deprivation of treatment and ignore the fact that this referral was made, if that's all irrelevant, I think it's more similar, but I think you still need to look at the fact that allowing this to proceed as the same context of Carlson [00:27:29] Speaker 03: would be exposing a BOP doctor to be personally liable for things that are outside of his control in this claim. [00:27:37] Speaker 01: That's why it may not be a successful claim. [00:27:40] Speaker 01: But I think that is meaningfully different, and that's what we're all trying to tease out. [00:27:43] Speaker 03: Right, and you know, I understand that this, I think the court is concerned that why shouldn't we recognize a claim, and then maybe we evaluate the merits. [00:27:53] Speaker 01: What we're concerned with is aren't we bound by precedent? [00:27:56] Speaker 01: I just say that loudly and clearly. [00:27:59] Speaker 03: Respectfully, Your Honor, I don't see Watanabe as issuing such a broad holding that all straightforward medical care claims brought by line officials are Carlson contacts. [00:28:13] Speaker 03: And I know that, I mean, that's explicitly what plaintiff argues. [00:28:16] Speaker 02: So let's say we disagree with you and we hold under our precedent that this is not a new Bivens context. [00:28:25] Speaker 02: Should we reach the qualified immunity question at the 12b6 stage, especially given that the district court did not reach it in the first instance? [00:28:32] Speaker 03: Yes, Your Honor. [00:28:32] Speaker 03: I believe it's very clear that this court could assume without deciding that Bivens remedy exists and could affirm on the grounds that the Dr. Kwan and Warden Dare has not established clearly violated law. [00:28:51] Speaker 03: And I would urge this court to look at have the same answer if [00:28:55] Speaker 02: we were to consider the qualified immunity question and hold that the medical records are not incorporated by reference and therefore qualified immunity should be denied at this stage? [00:29:06] Speaker 03: Yes, Your Honor, because I don't see any prior cases that would, again, I think the referral is very clearly in the record in the first instance that he alleges he was on medical hold while he was awaiting consultation for a pre-auricular cyst, and I think in those sort of situations, [00:29:26] Speaker 03: You know, there's nothing clearly established the plaintiff has pointed to that would show Dr. Kwon that he would be violating clearly established law by doing what he did, and the same for the warden in relying upon medical records in responding to a grievance. [00:29:40] Speaker 01: I just have one other question. [00:29:42] Speaker 01: The district court did not have Watanabe, and I don't think your brief responds to or suggests that it was correct to treat this as a one-step test, to collapse the test, but I just want to make sure I have the government's position on that. [00:29:56] Speaker 03: Correct, Your Honor. [00:29:57] Speaker 01: We believe a two-step test is appropriate. [00:29:59] Speaker 01: Okay. [00:29:59] Speaker 01: Thank you for your patience with our questions. [00:30:01] Speaker 01: Anything else? [00:30:02] Speaker 01: I think we're done. [00:30:03] Speaker 01: Thank you, Your Honor. [00:30:03] Speaker 01: Thank you so much. [00:30:14] Speaker 00: Okay, I'll start with the complaint. [00:30:18] Speaker 00: At ER 26, Mr. Kaniakua says that his injury is extreme pain without any treatment since 2020. [00:30:26] Speaker 01: So that is, I think to Judge Desai's question, the proper way to view his- Do you think it's correct to scoop in and include the time that he was transferred to Sheridan? [00:30:34] Speaker 00: No, we are not including Sheridan. [00:30:36] Speaker 00: It's the time before Sheridan when he was- [00:30:39] Speaker 01: And after. [00:30:40] Speaker 00: Exactly. [00:30:41] Speaker 00: Because we just scraped the surface of qualified immunity in defendant's argument, I wanted to point out a couple of things about the medical records if this court decides to reach them. [00:30:50] Speaker 00: First, in Jett versus Penner, there's a very important discussion of routine consultations versus urgent consultations. [00:30:58] Speaker 00: The records support Mr. Kaniakua because there was a routine consultation created by Dr. Kwan on January 20th. [00:31:05] Speaker 00: In JET, a routine consultation was created, there were x-rays provided, pain medication was provided, and there was still deliberate indifference because it was an urgent issue that did not receive that urgent consultation. [00:31:17] Speaker 00: It's notable that the records also show at SER 46 that after filing his complaint, Dr. Kwan did put in an urgent consultation and that began the treatment he then started receiving after the statutory period of his damages claim. [00:31:32] Speaker 01: Prison doctors often don't have the resources they need. [00:31:35] Speaker 01: I think probably it's not going out on a limb to say usually don't have the resources they need or wish they had to be able to respond to patient care. [00:31:44] Speaker 01: So it strikes me that there's a whole lot of questions of fact here that are, we're at the 12b6 level that we can't know about what Dr. Kwan did or didn't do or what he had available or even within his power to do. [00:31:56] Speaker 01: So, I just want to make sure that I'm clear that your first response was don't reach qualified immunity, and your second one is that if we do, we should only look at the allegations in the complaint. [00:32:07] Speaker 01: If so, that seems to sell Dr. Kwon short, because he's got another side to this story about what he did or didn't do. [00:32:12] Speaker 01: Do you want to respond to that briefly? [00:32:14] Speaker 00: Yes, and so that leads to our third position, I suppose, of what Dr. Kwan did and did not do, which is Dr. Kwan put in a routine consultation, and the urgent consultation is what was required. [00:32:27] Speaker 00: And so the necessary care, as JET supports for the qualified immunity analysis, the necessary care was an urgent consultation, and the pain that he was experiencing throughout that period is what he's going forward on a damages claim for. [00:32:39] Speaker 01: We've extended your time, Judge Desai. [00:32:41] Speaker 01: Anything further, Judge Fletcher? [00:32:42] Speaker 01: I think we've got your arguments, both of you. [00:32:44] Speaker 01: Thank you so much for your important attention to this case.