[00:00:00] Speaker 04:
We'll call the next one.

[00:00:01] Speaker 04:
Maney versus Oregon.

[00:00:44] Speaker 01:
May it please the court Robert Koch on behalf of the state defendants.

[00:00:48] Speaker 01:
This is a qualified immunity appeal about the Oregon State prisons response to COVID-19 across the first two and a half years of the pandemic.

[00:00:58] Speaker 01:
Plaintiffs have advanced a singular Eighth Amendment claim, arguing that the state's response was overall unreasonable.

[00:01:07] Speaker 01:
The district court denied our claim for qualified immunity, and in doing so, committed three different legal errors.

[00:01:14] Speaker 01:
I'd like to begin this morning with the last of the legal errors that we identified in our briefing.

[00:01:20] Speaker 01:
the clearly established prong of qualified immunity, because in many ways that's the most straightforward and really exemplifies the legal error that the district court committed here.

[00:01:32] Speaker 01:
The Supreme Court has repeatedly reminded this court that to defeat qualified immunity, a right has to be clearly established by case law such that every reasonable state official would be on notice that what they were going to do would be unlawful, would violate the Constitution.

[00:01:52] Speaker 01:
And plaintiffs in the district court here cite to this court's decision in Hampton

[00:01:58] Speaker 01:
The problem is that Hampton actually disavows their framing of an Eighth Amendment right as being clearly established.

[00:02:05] Speaker 01:
If you look at pages 38 and 39 of plaintiff's brief, what the district court says they're asserting and what plaintiffs say they're asserting is a right to a reasonable response to a substantial risk of harm.

[00:02:21] Speaker 01:
The problem is that Hampton specifically said that that framing of the rights, a risk of harm framing, is far too general for clearly establishing anything for purposes of qualified immunity.

[00:02:35] Speaker 01:
The other alternative framing that the district court and that plaintiffs have used is that they had a right against a heightened exposure to COVID.

[00:02:46] Speaker 01:
But that's just a different way of saying that they had a right to less of a risk of exposure to COVID.

[00:02:54] Speaker 01:
It still is what they're asserting is this sort of risk of harm standard that is just not, it's far too general for purposes of defeating qualified immunity.

[00:03:06] Speaker 01:
And I think this case is, frankly, a good example of the wisdom of this court in saying that that's far too general of an assertion.

[00:03:15] Speaker 01:
Because if that were the sort of clearly established standard, every state's response to COVID would be a jury question.

[00:03:24] Speaker 01:
Because it's, you know, we

[00:03:28] Speaker 01:
Responded to the pandemic.

[00:03:30] Speaker 01:
We did the best that we could.

[00:03:31] Speaker 01:
Was that response perfect?

[00:03:34] Speaker 01:
Absolutely not.

[00:03:37] Speaker 01:
But if the question is whether the response in total is reasonable, there could always be a difference of opinion about whether things were done well enough or perfectly enough.

[00:03:48] Speaker 02:
Council, do we have jurisdiction to consider this argument given that the district court determined that it could not decide qualified immunity because there are material facts in dispute, some of which you've just touched on?

[00:04:02] Speaker 01:
Oh, absolutely, Your Honor.

[00:04:04] Speaker 01:
Because the question at qualified immunity, it's whether what is being asserted is a recognizable constitutional violation.

[00:04:14] Speaker 01:
And if so, what's being asserted was that clearly established were reasonable state officials put on notice in advance that what they were going to do would violate the Constitution.

[00:04:25] Speaker 02:
If I understand the district court's ruling, the district court said, I can't decide whether or not the law was clearly established until I hear more proof because there are genuine disputes here as to what the standard was at a particular point in time, whether the defendants were aware.

[00:04:44] Speaker 02:
of that standard and whether they acted in a way that a jury might find that they were deliberately indifferent to the needs of the inmate.

[00:04:52] Speaker 02:
Isn't that the problem we're raising?

[00:04:55] Speaker 01:
Well, Judge Tallman, I mean, to be honest, that question sort of underscores the lack of something being clearly established.

[00:05:01] Speaker 01:
We're at summary judgment.

[00:05:02] Speaker 02:
But this is COVID.

[00:05:03] Speaker 02:
I mean, it was like a moving target as to what the protocols should be.

[00:05:09] Speaker 02:
I mean, the plaintiffs certainly have

[00:05:11] Speaker 02:
have a lot of arrows in their quiver to try and show that the prison officials did not act in a reasonable fashion, but you also have some pretty good evidence to suggest that they were not clearly established and that they were doing the best they could based on what they knew at the time about the disease.

[00:05:34] Speaker 02:
Why isn't that something that a jury is going to have to

[00:05:37] Speaker 02:
sort out and then the district court will give appropriate jury instructions to determine, I don't know, maybe a special verdict form to establish the key facts on which the court can then instruct on the law of qualified immunity.

[00:05:52] Speaker 01:
Your Honor, that exemplifies why qualified immunity is warranted here.

[00:06:02] Speaker 01:
Because to hold a defendant liable for damages, they have to be on notice that whatever it is they're charged with doing is going to be unlawful.

[00:06:14] Speaker 01:
response by the state officials was constitutionally inadequate, that could raise a claim for injunctive relief under this court's decision in Parsons.

[00:06:25] Speaker 01:
If the response was so poor that we were violating constitutional rights, then they could have brought a claim for injunctive relief.

[00:06:33] Speaker 03:
I thought that the key question in immunity is whether the law was clearly established.

[00:06:39] Speaker 03:
And the law was clearly established that you had to comply with the applicable standards.

[00:06:53] Speaker 03:
Now, what those standards were, as Judge Tallman has suggested, is a question that on the merits there is a dispute.

[00:07:06] Speaker 01:
So I actually disagree, Your Honor.

[00:07:07] Speaker 01:
There is no case that says you have to comply with applicable standards.

[00:07:12] Speaker 01:
And the case that plaintiffs in the district court cite as clearly establishing their right is Hampton.

[00:07:19] Speaker 01:
And the difficulty is that Hampton forecloses their framing of the right, as you have to respond reasonably to a risk of harm.

[00:07:27] Speaker 01:
What Hampton is about is that you can't expose an AIC to a serious communicable disease.

[00:07:33] Speaker 01:
Now plaintiffs here were exposed to COVID.

[00:07:35] Speaker 01:
They all tested positive for COVID.

[00:07:39] Speaker 01:
But the passive voice there is really important because we don't actually know how any plaintiff was exposed to COVID.

[00:07:48] Speaker 01:
In Hampton, you had a damage claim because

[00:07:50] Speaker 01:
The defendant officials there botched a prison transfer in May of 2020, mingling healthy AICs with sick AICs without masking them, without testing them, without quarantining them, socially distancing them.

[00:08:05] Speaker 01:
They intermingled healthy and sick AICs, which had been clearly established you cannot do.

[00:08:12] Speaker 01:
Here, there were a few steps removed from that.

[00:08:16] Speaker 01:
There's no identification of how any plaintiff was actually exposed to COVID.

[00:08:22] Speaker 02:
I thought they had allegations, though, of commingling or intermingling, whatever you want to call it, at some of the Department of Corrections institutions.

[00:08:32] Speaker 02:
They argue that not enough was done on that front, but I think it's important to remember that we're testing people who were showing symptoms, that they weren't restricting them for access to the yard and keeping them confined in pods in those facilities that had pods.

[00:08:50] Speaker 02:
And I guess some of your facilities are more what I'll call traditional prisons with cell blocks.

[00:08:56] Speaker 02:
Which makes it very difficult.

[00:08:59] Speaker 02:
I'm not unsympathetic to the problem that the prison officials face with an aging prison system with different facilities that are of different ages and design.

[00:09:12] Speaker 02:
But isn't all that in the mix here that the jury's going to have to parse through?

[00:09:17] Speaker 01:
I disagree, Your Honor.

[00:09:18] Speaker 01:
I think it's important to emphasize, which we note in our briefing, there are very possibly plaintiffs in this class who have valid Hampton claims and valid Helling claims based on those types of allegations.

[00:09:32] Speaker 01:
But plaintiffs aren't advancing that claim because they instead are asserting a right on behalf of 5,000 plus AICs who got COVID across two and a half years.

[00:09:44] Speaker 01:
And in order to assert that sort of consistent common claim for all 5,000 AICs, they instead invoke a generalized right

[00:09:53] Speaker 01:
to a reasonable response to a risk of harm, which this court has repeatedly said is far too general of clearly establishing anything.

[00:10:02] Speaker 01:
And so if there were individual state officials who fail to test, fail to follow masking guidelines, whatnot, and

[00:10:12] Speaker 01:
an individual AIC contracted COVID as a result, that would be a Hampton claim.

[00:10:17] Speaker 01:
But that's not what's being advanced here.

[00:10:20] Speaker 01:
Instead, we're looking at this sort of generalized right to a reasonable response to a risk of harm that this court has already said is far too general to put a reasonable state official on notice of anything.

[00:10:32] Speaker 02:
Basically arguing to us that we should

[00:10:36] Speaker 02:
reverse the summary judgment because there are not material facts in dispute?

[00:10:40] Speaker 02:
Because the law was such that no prison official could be held to any standard?

[00:10:48] Speaker 01:
No, so we think reversal is appropriate for three different reasons.

[00:10:52] Speaker 01:
But in terms of this particular line of inquiry, it's because the law wasn't clearly established to put defendants on notice of what the right that plaintiffs are asserting was violated.

[00:11:06] Speaker 01:
They're asserting a right to a reasonable response to a risk of harm, and that is an Eighth Amendment standard.

[00:11:12] Speaker 01:
And you can get injunctive relief if that's being violated in some way, shape, or form.

[00:11:16] Speaker 01:
But this is a damages claim.

[00:11:19] Speaker 01:
And in order to defeat qualified immunity, there has to be case law that clearly identifies that what defendants are doing is going to violate the Eighth Amendment in some way.

[00:11:30] Speaker 01:
In Hampton, it was exposing healthy AICs to sick AICs.

[00:11:37] Speaker 01:
But again, that's not the claim that's being alleged here.

[00:11:40] Speaker 01:
If you look at 38 and 39 of plaintiff's brief, they're talking about a reasonable response to a risk of harm, which Hampton expressly said is far too general.

[00:11:51] Speaker 01:
And that wasn't even the main holding in Hampton.

[00:11:54] Speaker 01:
They were quoting from a decision of this court from 2002.

[00:11:59] Speaker 01:
So if anything, it's been clearly established that that's far too general of an assertion to clearly establish anything for purposes of defeating qualified immunity.

[00:12:09] Speaker 01:
Unless there are other immediate questions, I'll save the remainder of my time for rebuttal.

[00:12:16] Speaker 01:
Very well.

[00:12:17] Speaker 01:
Thank you.

[00:12:31] Speaker 00:
Good morning, Your Honors.

[00:12:32] Speaker 00:
I may please the court, Nadiya Dahab, for plaintiffs.

[00:12:36] Speaker 00:
I want to make clear further to Your Honor's questions about the disputes of fact that are sort of replete across the summary judgment record, what is not at issue in this appeal.

[00:12:47] Speaker 00:
This appeal presents a very straightforward, narrow legal question about whether the district court legally erred into denying defendant's motion for summary judgment on qualified immunity grounds.

[00:13:00] Speaker 00:
This is a complex class action case, as the court is aware from the briefs, that has been pending for five years in the district court.

[00:13:07] Speaker 00:
The district court has, in April 2023, certified two classes.

[00:13:11] Speaker 00:
The rulings on class certification are not at issue in this appeal.

[00:13:15] Speaker 00:
In the ruling the district court issued in April 2024, which is the order from which this appeal arises,

[00:13:20] Speaker 00:
The district court denied summary judgment on several grounds, including on the ground that genuine disputes of material flack foreclosed summary judgment on whether defendants took reasonable measures to abate the risks that COVID-19 presented in the prison setting, whether they consciously disregarded that risk, and whether their actions and inactions caused plaintiffs' injuries.

[00:13:45] Speaker 00:
None of those rulings and findings that on this record there are disputes of fact that foreclose summary judgment on those grounds are at issue in this appeal, because this appeal is an appeal under the collateral order doctrine, and this court's authority is therefore narrow.

[00:14:03] Speaker 00:
The two primary legal issues that are sort of wrapped up in this appeal are whether plaintiffs legally stated claim under the Eighth Amendment and whether defendant's actions and inactions violated clearly established law.

[00:14:17] Speaker 00:
Now I'll start where opposing counsel started off, which is whether there was clearly established law here.

[00:14:23] Speaker 00:
And I want to clarify the right that plaintiffs have identified as the right that is clearly established by this court's and the Supreme Court's case law.

[00:14:33] Speaker 00:
And that is the right that is articulated in Hampton.

[00:14:39] Speaker 00:
at page 769 of Hampton, and that is the right at issue is an inmate's right to be free from exposure to a serious disease.

[00:14:48] Speaker 00:
Hampton says in the same paragraph, that right has been clearly established since at least 1993 when the Supreme Court decided Helling versus McKinney.

[00:14:59] Speaker 00:
We are not alleging a right to a reasonable pandemic response.

[00:15:05] Speaker 00:
We understand that the Supreme Court has said many times over in his admonished courts that they need to define the clearly established right at the appropriate level of generality.

[00:15:13] Speaker 00:
The right to a reasonable response is just the Eighth Amendment standard.

[00:15:17] Speaker 00:
The defendants were obligated to reasonably abate the risk that COVID presented.

[00:15:22] Speaker 02:
And the district court thought that it needed to have that issue decided by the jury because there were contested issues of material facts.

[00:15:34] Speaker 00:
The district court did two things.

[00:15:36] Speaker 00:
That is correct, Judge Talman, as to whether defendants reasonably abated the risk.

[00:15:40] Speaker 00:
Absolutely.

[00:15:41] Speaker 00:
The district court found, and this is at ER 76, which is the portion of the district court's order addressing the right that is clearly established.

[00:15:49] Speaker 00:
The district court found that the clearly established right here is the same that the court found in Hampton, and similarly found expressly that clearly established right has been established since Helling.

[00:16:01] Speaker 00:
Then the district court turned to

[00:16:04] Speaker 00:
the nature of defendants' response.

[00:16:07] Speaker 00:
And as Judge Talman, you point out, there are disputes of fact all over this record about whether defendants system-wide adequately implemented the policies that they had adopted or adopted policies at all with respect to various non-pharmaceutical interventions to COVID, mixing, quarantining, masking, social distancing, all of those things that

[00:16:33] Speaker 00:
that the expert reports in this record point out were necessary and necessary pursuant to CDC guidance to implement in the congregate prison setting.

[00:16:44] Speaker 00:
But that's a question, again, that is not before this court.

[00:16:48] Speaker 00:
The real question, the only question, is whether, as to this clearly established right, was the right clearly established?

[00:16:57] Speaker 00:
And I think Hampton is a published decision that is binding on this court that, in our view, is on all fours with the case that is before your honors today.

[00:17:11] Speaker 00:
I want to touch also on the, sort of more broadly speaking, the right to the Eighth Amendment right, because my friend talked about the nature of the right in both their brief and in his opening statement here about the right that plaintiffs had to an omnibus or an aggregate pandemic response.

[00:17:33] Speaker 00:
And I want to make clear a couple of things.

[00:17:36] Speaker 00:
The Eighth Amendment standards are very clear, and they govern in this case, right?

[00:17:40] Speaker 00:
The Helling standard, that the Eighth Amendment provides scrutiny over prison conditions and the conditions that prisoners face when they're in custody are all subject to Eighth Amendment scrutiny.

[00:17:51] Speaker 00:
Under Wilson v. Sider, the Supreme Court has told us that plaintiffs can, under the Eighth Amendment, challenge a series of policies or combinations of conditions that may give rise to a substantial risk of harm.

[00:18:04] Speaker 03:
Well, we said in Hampton, what's troubling me a little is the level of generality.

[00:18:16] Speaker 03:
We said in Hampton,

[00:18:20] Speaker 03:
that in light of all these cases, and we went through hell and all of these cases, we said all reasonable prison officials would have been on notice in 2020 they could be held liable for exposing inmates to a serious disease, including a serious communicable disease.

[00:18:35] Speaker 03:
Although COVID-19 may have been unprecedented, the legal theory that plaintiff asserts is not.

[00:18:42] Speaker 03:
Now, why is that?

[00:18:47] Speaker 03:
not too general a standard if we're looking at this from the standpoint of trying to avoid being reversed by the Supreme Court?

[00:18:55] Speaker 00:
Sure.

[00:18:56] Speaker 00:
I think

[00:18:58] Speaker 00:
The level of generality here is correct, and there's no bright, obviously, your honor knows, there's no bright land rule here about how to define or how to approach the level of generality.

[00:19:09] Speaker 00:
We know that it can't be the right to be free from, the right to a reasonable pandemic response, the right to be free from a substantial risk of harm, or the right to be free from

[00:19:19] Speaker 00:
from deliberately indifferent policies or the right to constitutionally adequate conditions of confinement.

[00:19:24] Speaker 00:
But it also can't be so specific.

[00:19:27] Speaker 00:
And this court said in Nelson versus the city of Davis that it becomes applicable only to the particular facts of the case.

[00:19:33] Speaker 00:
And it can't be such that defendants can sort of define away liability by making the... What takes this out of generality?

[00:19:40] Speaker 03:
Is it too general?

[00:19:42] Speaker 03:
Is it because we're talking about a specific disease?

[00:19:45] Speaker 03:
COVID?

[00:19:48] Speaker 03:
That doesn't seem like that works.

[00:19:54] Speaker 00:
If I'm understanding, I'm not sure that I'm totally understanding that specific question.

[00:19:57] Speaker 00:
I think this is specific enough in the sense that it does apply only to serious communicable diseases.

[00:20:05] Speaker 00:
Well, that's pretty general.

[00:20:08] Speaker 00:
I'm sorry?

[00:20:09] Speaker 00:
That's pretty general.

[00:20:11] Speaker 00:
I think I would respectfully disagree.

[00:20:14] Speaker 00:
I think it's sufficiently specific.

[00:20:15] Speaker 00:
It's specific enough to not include exposure to general environmental toxins, exposure to asbestos, things of that nature.

[00:20:27] Speaker 00:
It's specific to serious diseases.

[00:20:31] Speaker 00:
And defendants, I think, aren't necessarily left to guess on what a serious disease is, or the seriousness of a medical condition or a serious disease.

[00:20:41] Speaker 00:
And it has to be communicable.

[00:20:42] Speaker 00:
It has to be communicable.

[00:20:43] Speaker 00:
And I think defendants here, as was true in Hampton, were aware

[00:20:49] Speaker 00:
at the time of the events giving rise to that case, the seriousness of the disease.

[00:20:52] Speaker 00:
There's actually no dispute on this record, on this particular record, as to the seriousness of COVID during the class period at issue.

[00:21:00] Speaker 00:
But just as a practical matter, defendants in Hampton were told by public health officials, this is a serious disease, and these are the steps you need to take to respond.

[00:21:09] Speaker 00:
The same was true here.

[00:21:10] Speaker 00:
Defendants were told by their own infectious disease specialist, this is a serious disease, and social distancing and other countermeasures need to be taken

[00:21:16] Speaker 00:
to address the risk to AICs in this context.

[00:21:21] Speaker 00:
So I think the seriousness and the communicable disease part make it sufficiently specific, but not so specific that it sort of defines away defendants' liabilities in future cases.

[00:21:31] Speaker 02:
But isn't the heart of your claim the reasonableness of the officials' response?

[00:21:36] Speaker 02:
You're not going to get a directed verdict at the close of the plaintiff's case on the ground that there is a generalized right on the part of inmates to be protected from contracting serious diseases while they're in custody.

[00:21:53] Speaker 02:
The question is, under the Eighth Amendment,

[00:21:56] Speaker 02:
whether or not the conduct of the prison officials was reasonable enough to refute what you want the jury to find, which is that they acted with deliberate indifference to the right of the inmates to be protected from COVID.

[00:22:11] Speaker 00:
That's absolutely correct, Judge Talman.

[00:22:14] Speaker 00:
We're talking about the pure legal question of clearly established law in this appeal.

[00:22:20] Speaker 00:
But the heart of our claim, as you pointed out, is the reasonableness of the response, whether defendants acted to reasonably abate the risk that COVID presented or whether they consciously disregarded that risk.

[00:22:30] Speaker 02:
And that's what the district court said is in dispute.

[00:22:33] Speaker 02:
And I can't grant summary judgment here until I get these facts resolved.

[00:22:37] Speaker 00:
Absolutely, absolutely.

[00:22:39] Speaker 00:
And there are several different disputes of fact about the centralized nature of the policies and whether the policies were implemented on a system-wide basis, all of which the district court found, and I think this court is at least bound to or lacks jurisdiction to reconsider in this appeal, were triable issues of fact for the jury.

[00:23:01] Speaker 00:
Unless the court has further questions, we would request that this panel affirm the district court's judgment.

[00:23:06] Speaker 04:
Thank you.

[00:23:07] Speaker 04:
Thank you, Council.

[00:23:13] Speaker 01:
Your Honors, I'd like to focus on one thing that plaintiffs say that their claim is about exposure to COVID, but that's actually not true because there's no allegation about how they were exposed to COVID.

[00:23:25] Speaker 01:
There's no evidence about how they were exposed to COVID.

[00:23:29] Speaker 01:
And that's why what they have framed their right as.

[00:23:33] Speaker 02:
I'm a little confused by the argument because don't they have allegations in the complaint about

[00:23:38] Speaker 02:
intermingling of people who were symptomatic with people who had not yet tested positive for COVID and then later tested positive.

[00:23:49] Speaker 01:
They have allegations that we didn't do enough policy-wise, but they never identify how any plaintiff got COVID.

[00:23:56] Speaker 02:
That's their injury.

[00:23:57] Speaker 02:
But they're going to point to things like you didn't require masking, you didn't provide for adequate social distancing, you didn't reopen

[00:24:05] Speaker 02:
a couple of facilities that you had closed, you didn't open the gates of the prison and release some of the nonviolent offenders in order to reduce crowding.

[00:24:16] Speaker 02:
That all goes to the reasonableness of the officials' response and whether or not they were deliberately indifferent.

[00:24:23] Speaker 01:
But it's important, the reasonable response to what?

[00:24:27] Speaker 01:
And what Hampton said is that it's a reasonable response to the exposure of an AIC to a serious communicable disease.

[00:24:37] Speaker 01:
But what plaintiffs have alleged, and what the district court framed the right as, is a right not to have a heightened exposure.

[00:24:49] Speaker 01:
basically an increased risk of exposure to COVID.

[00:24:53] Speaker 02:
But doesn't that come if the plaintiffs are able to successfully establish that, for example, inmates were not confined to the pod that they were housed in, they were still allowed to go to the chow hall, they were still allowed to go out into the general exercise yard where they mingled with other prisoners.

[00:25:12] Speaker 02:
I mean, that's the kind of proof I would expect them to offer at trial in support of their claim.

[00:25:17] Speaker 01:
I would expect that would be proof for an individual AIC's Hampton claim.

[00:25:23] Speaker 01:
But again, what we're looking at here is a singular claim over the span of two and a half years whether the state did enough.

[00:25:31] Speaker 01:
And what they're alleging is that you didn't do enough to decrease our risk of getting COVID.

[00:25:37] Speaker 02:
But you're going to respond with the fact that the Department of Corrections

[00:25:42] Speaker 02:
put together a task force which met on a daily basis and went out and talked to infectious disease specialists to try and get some advice on how to address the problem.

[00:25:57] Speaker 02:
And they're going to say that was not adequate.

[00:26:00] Speaker 02:
They have experts that say you should have done more or you should have listened to some of the recommendations that were made that for whatever reason were not implemented.

[00:26:08] Speaker 02:
That's the legitimacy of the facts that are in dispute.

[00:26:12] Speaker 01:
That goes to whether the overall response was reasonable.

[00:26:18] Speaker 02:
Isn't that the heart of the case?

[00:26:21] Speaker 01:
No, Your Honor.

[00:26:22] Speaker 01:
To defeat qualified immunity, the asserted right has to be clearly established.

[00:26:27] Speaker 02:
But are you saying that there is not a clearly established right to protect adults in custody from exposure to infectious diseases?

[00:26:38] Speaker 01:
There is for injunctive relief purposes, but we're talking, this is a damaged claim.

[00:26:42] Speaker 01:
And so the damages, as the court clarified and emphasized in Hampton,

[00:26:50] Speaker 01:
The idea you have, in fact, to quote from it, it is not sufficient that Farmer clearly states the general rule that prison officials cannot deliberately disregard a substantial risk of serious harm to an inmate.

[00:27:03] Speaker 01:
But that's far too general for establishing a right for qualified immunity purposes.

[00:27:08] Speaker 03:
This isn't just a serious harm.

[00:27:11] Speaker 03:
I mean, this is a specific communicable disease.

[00:27:15] Speaker 01:
It is your honor.

[00:27:16] Speaker 01:
And if an AIC got COVID, that is because of the actions of defendant state officials, then they can bring a Hampton claim.

[00:27:25] Speaker 01:
But what plaintiffs are asserting here is an omnibus claim for the entire scope of the pandemic to say, you weren't reasonable enough to reduce my risk of harm of getting COVID.

[00:27:38] Speaker 02:
And they're going to point to the deaths that resulted and the numbers of inmates that tested positive.

[00:27:46] Speaker 02:
And, I mean, they've got a whole slew of bad things that flowed, allegedly, from the acts or omissions of the prison officials.

[00:27:58] Speaker 02:
Why doesn't that state a putative Eighth Amendment claim?

[00:28:01] Speaker 01:
Because risk of harm is too general of an asserted right to be clearly established for purposes of the Eighth Amendment.

[00:28:09] Speaker 01:
If defendant officials exposed individual AICs to COVID, then they can bring a Hampton claim.

[00:28:15] Speaker 01:
But that's not what plaintiffs have alleged.

[00:28:18] Speaker 02:
Suppose it was an outbreak of typhus or something and the prison officials did nothing.

[00:28:25] Speaker 01:
Then two things.

[00:28:27] Speaker 01:
One, you'd have a great claim for injunctive relief under Parsons.

[00:28:31] Speaker 02:
But no claim for damages?

[00:28:32] Speaker 01:
No, you would.

[00:28:33] Speaker 01:
I'm sure that there would be a boatload of Hampton-type claims there.

[00:28:37] Speaker 01:
Plaintiffs have never identified how any of them were exposed to COVID.

[00:28:41] Speaker 01:
And that's what's so different about this case from Hampton.

[00:28:44] Speaker 01:
In Hampton, you had an AIC who got COVID in May 2020 because the defendant state officials botched a prison transfer, mingling healthy AICs with sick AICs.

[00:28:56] Speaker 01:
There's no identification here how the actual, there's no allegation

[00:29:02] Speaker 01:
much less evidence of exposure.

[00:29:04] Speaker 02:
I think the allegations are sufficient that they didn't confine people to areas of the prison.

[00:29:11] Speaker 02:
They allowed them basically to mix with the other inmates in the yard and in the chow hall.

[00:29:19] Speaker 01:
No, the problem is that, so the reason, and there's a reason why there's no allegation, much less evidence about any actual exposure.

[00:29:28] Speaker 01:
And if I, I'm cognizant I'm well over, okay.

[00:29:32] Speaker 01:
So the reason why there is no allegation, much less evidence of exposure is because they're asserting a class claim.

[00:29:39] Speaker 01:
And the specifics of any actual infection are gonna be time specific, person specific, location specific.

[00:29:46] Speaker 01:
And to get around that, they instead are asserting this generalized right about a substantial risk of harm.

[00:29:54] Speaker 01:
The problem is that that framing is far too general to put any defendant on notice.

[00:29:59] Speaker 01:
And so either one of two things are true.

[00:30:02] Speaker 01:
So if they actually are asserting a claim about exposure, then they don't have standing, because there's no indication of how any of them

[00:30:12] Speaker 01:
actually were exposed to COVID, much less tracing that back to any act of a defendant.

[00:30:17] Speaker 01:
Or they're asserting this generalized right to a reasonable response to a substantial risk of harm from COVID.

[00:30:24] Speaker 01:
But Hampton expressly said that that's far too general to clearly establish anything for purposes of defeating qualified immunity.

[00:30:34] Speaker 01:
unless we ask this court to reverse the denial of qualified immunity.

[00:30:37] Speaker 01:
Thank you.

[00:30:38] Speaker 04:
All right.

[00:30:38] Speaker 04:
Thank you to both, counsel.

[00:30:39] Speaker 04:
I understand this was Graeber versus Graeber.

[00:30:43] Speaker 04:
Am I correct about that?

[00:30:45] Speaker 04:
Because most of you don't know what I'm talking about.

[00:30:47] Speaker 04:
Judge Graeber's portrait's on the wall up there.

[00:30:49] Speaker 04:
And both of them were law clerks for Judge Graeber.

[00:30:51] Speaker 04:
And I'm sure she'll watch the video.

[00:30:53] Speaker 04:
And I'm sure she'll be very, very proud of both of you, how you argued and briefed this case.

[00:30:57] Speaker 04:
So thank you both.

[00:30:58] Speaker 04:
This matter is submitted.