[00:00:07] Speaker 03:
So do I get an award for this?

[00:00:09] Speaker 03:
Because have you ever had somebody argue for or arguments at the same time in one day?

[00:00:14] Speaker 03:
I have.

[00:00:15] Speaker 05:
The DOJ attorneys often will do that.

[00:00:18] Speaker 03:
Oh, dang.

[00:00:18] Speaker 03:
You know, has anybody done anything more than four, though?

[00:00:21] Speaker 03:
Have you seen somebody do more than four?

[00:00:23] Speaker 03:
Anyway, OK.

[00:00:26] Speaker 00:
Get an award for filing this appeal in a timely way.

[00:00:29] Speaker 00:
Oh, sorry.

[00:00:30] Speaker 03:
OK.

[00:00:31] Speaker 05:
One timely appeal.

[00:00:33] Speaker 03:
Again, my name is Chris Davis.

[00:00:35] Speaker 03:
I'm appearing on behalf of the appellants, and I appreciate the opportunity to address this court.

[00:00:41] Speaker 03:
This court should be glad to hear.

[00:00:44] Speaker 03:
This case doesn't involve timeliness.

[00:00:48] Speaker 03:
I don't think any petty disputes that this is timely.

[00:00:50] Speaker 03:
This was filed on the 31th day, but the 30th day filed on a Sunday, so I don't think any of the disputes this is timely.

[00:00:57] Speaker 03:
They do say, though, that this court doesn't have jurisdiction.

[00:01:00] Speaker 03:
I assume you want to talk about jurisdiction first, too?

[00:01:03] Speaker 03:
Anyway, that this court has jurisdiction because of the sufficiency of the evidence.

[00:01:09] Speaker 03:
the court's decision.

[00:01:10] Speaker 03:
The court's decision.

[00:01:10] Speaker 03:
And Howard, this court recently clarified that not withstanding the rule of hearing evidence, efficiency challenges on interlocker appeals.

[00:01:17] Speaker 03:
This court has jurisdiction not only when plaintiff's version of the facts is blatantly contradicted by the record, but also when plaintiff's claims are premised on

[00:01:27] Speaker 03:
Here McNeil's arguments that he was not afforded due process fail either for lack of sufficiency events or because McNeil's version of the fact is blatantly contradicted by the auto recording of the disciplinary hearing so that no reasonable jury could believe it.

[00:01:41] Speaker 05:
Doesn't the plaintiff say that there were conversations that took place outside the audio recording?

[00:01:48] Speaker 03:
Yeah, yes, Your Honor, he does.

[00:01:49] Speaker 03:
He says that.

[00:01:50] Speaker 05:
Well, so if we take that in the light most favorable to the plaintiff, then your argument that he does not stay sufficient evidence, how can that be?

[00:02:02] Speaker 03:
Well, first of all, he alleges something different in his complaint.

[00:02:06] Speaker 05:
Well, but at the qualified immunity stage, we are to assume the facts in the light most favorable to the plaintiff.

[00:02:15] Speaker 03:
But the thing is, his complaint is also verified, is a verified complaint.

[00:02:25] Speaker 03:
And therefore, it's a declaration.

[00:02:26] Speaker 03:
And this, I think, would fall under the sham declaration rule, that he's now changing his story about what's happened.

[00:02:31] Speaker 05:
Well, if we disagree with you on that,

[00:02:33] Speaker 05:
If you say he's clarifying what happened as opposed to contradicting what happened, then where are we?

[00:02:41] Speaker 03:
Then where you are is you have to listen to the tape, because he also says where the break happened.

[00:02:48] Speaker 03:
And if you listen to the tape, there is no break.

[00:02:51] Speaker 03:
He goes from, Mr. McNeil finally states his case,

[00:02:57] Speaker 03:
Then he goes, Mr. McNeil says that he finally states his case.

[00:03:01] Speaker 03:
They go out for deliberations.

[00:03:03] Speaker 03:
While the deliberations are not going on, all these things happened that supposedly defeat our case.

[00:03:10] Speaker 03:
And then...

[00:03:12] Speaker 03:
He comes back and makes his decision.

[00:03:14] Speaker 03:
If you listen to the tape, I don't think there's any dispute that none of that happened.

[00:03:19] Speaker 03:
There is no break in the case.

[00:03:20] Speaker 03:
And you know why there's no break in the case?

[00:03:22] Speaker 03:
Because when there is a break in the case, which happened at the beginning when they had the witness, when he went out to go do the witness, there's another audit recording.

[00:03:30] Speaker 03:
Our processes doesn't have the ability to stop and then restart with the same audit recording.

[00:03:37] Speaker 05:
That's not in the record.

[00:03:39] Speaker 05:
Whether or not they have the ability to stop and start is not in the record.

[00:03:44] Speaker 03:
It is in the record that that happened though, Your Honor.

[00:03:46] Speaker 03:
That as soon as they stop the conversation, you have one audio recording and then they restart with another audio recording.

[00:03:53] Speaker 03:
So it is in the record, Your Honor.

[00:03:55] Speaker 01:
I'm a little confused as to why you started here, because I thought you had an antecedent argument that there wasn't a deprivation of a liberty interest that would trigger a due process right, or at least not a clearly established one.

[00:04:09] Speaker 01:
Is that your position?

[00:04:10] Speaker 03:
Yes, yes, Your Honor.

[00:04:11] Speaker 03:
That there is no... Well, that's the position for the hearing officer.

[00:04:19] Speaker 03:
Our position with respect to the other defendants is the same that it was before, that the other people didn't deprive him of anything.

[00:04:25] Speaker 01:
Well, but doesn't that apply to everybody?

[00:04:28] Speaker 01:
If there was no liberty interest and no due process, right, don't all the defendants win?

[00:04:32] Speaker 03:
Now, Your Honor, to violate the due process clause, you have to deprive somebody of something.

[00:04:36] Speaker 03:
So if you don't deprive anybody of anything, you don't have to provide them with anything.

[00:04:40] Speaker 03:
I mean, and that's the inside case.

[00:04:44] Speaker 01:
So you're saying that there was no liberty interest is not sufficient to resolve the case for all the defendants?

[00:04:52] Speaker 03:
Yes, that's true, Your Honor.

[00:04:54] Speaker 03:
But I just wanted to get that out first.

[00:04:56] Speaker 03:
For example, in Sandin,

[00:04:59] Speaker 03:
this court held that rejected the claim that placing an inmate in disciplinary segregation involving solitary confinement implicated a liberty interest because there was not an atypical signatory deprivation, which is what we have here.

[00:05:12] Speaker 03:
That's all they're alleging.

[00:05:14] Speaker 01:
So we have our decision in Brown.

[00:05:16] Speaker 01:
So maybe you could explain how this is different from Brown.

[00:05:18] Speaker 03:
So in Brown, Brown made, Brown specifically held, not held, but they explained.

[00:05:26] Speaker 03:
that confinement, which subjected the inmate to solitary confinement for over 23 hours a day each day with almost no impersonal contact and denied him most privileges afforded by the inmate in the general population did not impose an atypical citizen charge because these conditions alone might apply to most solitary confinement facilities.

[00:05:49] Speaker 03:
And they said, well, if that was all that was happening, there is no liberty interest involved.

[00:05:54] Speaker 03:
But what they went on to say was that what was absent was periodic review, that he didn't have any periodic review.

[00:06:03] Speaker 03:
And that's what caused the thing to be atypical.

[00:06:05] Speaker 03:
But in this case, that's not what happened.

[00:06:07] Speaker 03:
The undisputed facts are he got repeated periodic review.

[00:06:11] Speaker 03:
And in fact, because of that periodic review, his condition of confinement was reduced from 23 months to only eight months.

[00:06:19] Speaker 03:
And so it all worked out the way that the court's court wanted to in Brown.

[00:06:24] Speaker 01:
And so Brown, I think involved, was it 27 months?

[00:06:28] Speaker 01:
Yes, Your Honor, it's 27.

[00:06:30] Speaker 01:
So in comparing this to Brown, do we look at the 23 months that were imposed or the eight months that were actually served?

[00:06:38] Speaker 03:
I think when you're looking at Brown, you have to look at the eight months, because that's what he was deprived of.

[00:06:44] Speaker 03:
He was only placed in it, so that was all he was deprived of.

[00:06:47] Speaker 03:
You can't say he was deprived of more than that, because that's all he ended up being deprived of was supposedly

[00:06:54] Speaker 03:
was being there in eight months.

[00:06:55] Speaker 03:
But the thing is, what Brown said, though, was is that, hey, it's a periodic review.

[00:07:00] Speaker 03:
And that's what they wanted to happen.

[00:07:01] Speaker 03:
They said, it's unfair for this inmate not to be in solitary confinement without having periodic review to determine whether or not he should get out.

[00:07:10] Speaker 03:
And here we had it.

[00:07:11] Speaker 03:
It's undisputed that we had it.

[00:07:13] Speaker 03:
And therefore, there is no liberty interest.

[00:07:15] Speaker 03:
And even if this court was to find that there was a minimal liberty interest involved, for example,

[00:07:23] Speaker 03:
in the Mendoza case.

[00:07:24] Speaker 03:
This court held that a prisoner charged with smuggling drugs is only entitled to notice of the charges, same type of facts here, I just was amazed at how close this case was, is only entitled to notice of the charges against him and opportunity to respond and no formal hearing is required.

[00:07:41] Speaker 03:
when the liberty interest is minimal.

[00:07:43] Speaker 03:
And that's what we have here at best, is a minimal liberty interest.

[00:07:47] Speaker 03:
I suggest, Your Honor, that there's no liberty interest at all.

[00:07:50] Speaker 03:
But even if you wanted to believe there's some liberty interest involved here, it's minimal at best, and this is all that was required.

[00:07:57] Speaker 03:
And it's undisputed in the facts that he received this.

[00:08:02] Speaker 05:
Counsel, could we go through each one of the defendants?

[00:08:06] Speaker 05:
So, Inspector Monard was the investigator.

[00:08:10] Speaker 05:
That's right, Your Honor.

[00:08:11] Speaker 05:
And was there an allegation that Monard directed the hearing officer to find him guilty?

[00:08:18] Speaker 05:
Your Honor... Is there an allegation of that?

[00:08:20] Speaker 03:
There is a... Do we have to take that as true?

[00:08:23] Speaker 03:
No, Your Honor.

[00:08:25] Speaker 03:
Why not?

[00:08:26] Speaker 03:
It's not an allegation, it's an argument.

[00:08:29] Speaker 03:
I don't believe there's any evidence.

[00:08:33] Speaker 03:
I don't believe so, Your Honor.

[00:08:34] Speaker 05:
We'll ask the opposing counsel.

[00:08:36] Speaker 05:
But if Inspector Monard directed the hearing officer to convict Mr. McNeil, would that be personal involvement?

[00:08:46] Speaker 03:
It would be if he had any authority to do so, but he doesn't.

[00:08:55] Speaker 03:
No, for example, Your Honor, I'll give you an example.

[00:08:58] Speaker 05:
Well, whether he had authority to do it or not, if he did that, that's personal participation.

[00:09:06] Speaker 05:
You can't say he wasn't involved if he was interjecting himself into the proceedings.

[00:09:13] Speaker 03:
OK.

[00:09:13] Speaker 03:
So for example, Your Honor, if you went to the hearing officer for some reason, this person had done your family wrong, and you go to the hearing officer and say, hey, you have to convict him.

[00:09:24] Speaker 05:
I'm not part of the prison system, though.

[00:09:26] Speaker 03:
I know.

[00:09:26] Speaker 03:
Well.

[00:09:28] Speaker 05:
But he is.

[00:09:28] Speaker 05:
And so let's move to the next one.

[00:09:31] Speaker 05:
I understand what you're saying.

[00:09:33] Speaker 03:
OK.

[00:09:33] Speaker 05:
Thank you, Your Honor.

[00:09:34] Speaker 05:
Warden Levin and Deputy Director Brann.

[00:09:39] Speaker 05:
I thought the allegation as to them was that they were aware that his due process rights were violated by not allowing him to call witnesses.

[00:09:49] Speaker 05:
And then the grievances that was brought to their attention, and they could have rectified it.

[00:09:53] Speaker 05:
So are you saying that assertion wasn't made?

[00:09:57] Speaker 03:
That assertion was made.

[00:09:58] Speaker 03:
But the Ramirez case says that he has no due process rights to grievance procedures.

[00:10:05] Speaker 03:
And therefore, they could not violate the due process clause.

[00:10:08] Speaker 05:
There's no right to grievance procedures?

[00:10:11] Speaker 03:
No, there's no right to due process of grievance procedures.

[00:10:13] Speaker 03:
That's our amendment in this case.

[00:10:15] Speaker 01:
But I think the argument on the other side is that they were ratifying the... I mean, if there was a violation at the hearing, that they somehow ratified that.

[00:10:23] Speaker 03:
But that's the exact same thing that happened in Ramirez.

[00:10:26] Speaker 03:
The exact same facts that are here were in Ramirez.

[00:10:29] Speaker 05:
I mean, it's... There are cases that say that ratification of a violation of the Constitution can impose liability on the ratifier.

[00:10:41] Speaker 03:
Not in due process claims.

[00:10:43] Speaker 03:
There's not a single case that says that with respect to due process case.

[00:10:47] Speaker 03:
In fact, the Seventh Circuit held said that that kind of claim was frivolous.

[00:10:50] Speaker 05:
What about the Ninth Circuit?

[00:10:51] Speaker 03:
Well, like I said, the Ramirez case is the Ninth Circuit.

[00:10:54] Speaker 03:
The Ramirez case went against it, so it didn't apply.

[00:10:57] Speaker 03:
And the reason why is, this is the reason why, Your Honor, because due process doesn't require a result.

[00:11:02] Speaker 03:
in procedures.

[00:11:03] Speaker 04:
For example, Your Honor... We know what due process requires.

[00:11:07] Speaker 04:
It requires notice and opportunity to be heard.

[00:11:09] Speaker 03:
Right.

[00:11:10] Speaker 03:
That's your right, Your Honor, and that's exactly what you're receiving as grievance procedures.

[00:11:13] Speaker 03:
Even if due process did apply to grievance procedures, which it does not.

[00:11:17] Speaker 03:
But all you're entitled to is notice and opportunity to do it.

[00:11:19] Speaker 05:
Is there an opportunity to be heard if...

[00:11:23] Speaker 05:
a person is deprived of the witnesses that they want to present.

[00:11:28] Speaker 05:
Is that an opportunity to be heard?

[00:11:29] Speaker 03:
The opportunity to be heard is the opportunity to be heard in the precinct process.

[00:11:33] Speaker 03:
For example, Your Honor.

[00:11:34] Speaker 05:
But doesn't Wolfe say that there should be an opportunity to present witnesses and evidence as a matter of due process?

[00:11:44] Speaker 03:
It does, Your Honor, but let me give this analogy.

[00:11:49] Speaker 03:
So Your Honors are ruling on trial.

[00:11:51] Speaker 03:
At that trial, they come up to you and say, you know, I should have been able to present these witnesses and evidence at trial, but they didn't allow me to.

[00:11:57] Speaker 03:
And you come up and you say, well, we don't agree with you, we believe

[00:12:03] Speaker 03:
that the person did not, that you're not supposed to bring evidence and witnesses at trial.

[00:12:09] Speaker 03:
You didn't have the right in those particular circumstances.

[00:12:12] Speaker 03:
And so you deny this question.

[00:12:13] Speaker 03:
Well, he goes to the Supreme Court, and he appeals that ruling.

[00:12:16] Speaker 03:
And the Supreme Court says it comes down, well, guess what?

[00:12:19] Speaker 03:
You know, he was entitled to those witnesses and things, and you, and reverse it to the court.

[00:12:27] Speaker 03:
Well, you didn't deny him due process because you gave him an opportunity to be heard, even though he still didn't have his witnesses, you gave him an opportunity to be heard, and you allowed him to... An analogy doesn't track to this scenario, unfortunately.

[00:12:42] Speaker 05:
So you've exceeded your time.

[00:12:44] Speaker 05:
Are there any other questions?

[00:12:45] Speaker 05:
Thank you.

[00:12:46] Speaker 05:
All right.

[00:12:46] Speaker 03:
Appreciate it.

[00:12:46] Speaker 05:
We'll give you a minute for a bottle.

[00:12:59] Speaker 02:
Just one moment to get organized, please.

[00:13:01] Speaker 05:
Are you pro bono in this case?

[00:13:03] Speaker 02:
I am, yes, Your Honor.

[00:13:03] Speaker 05:
Thank you for your pro bono service.

[00:13:05] Speaker 02:
Thank you.

[00:13:09] Speaker 02:
Quinton Weinstein with Wilkinson Stackloft representing the appellee, Mr. Michael McNeil.

[00:13:14] Speaker 02:
I just want to start by addressing a couple of Your Honor's questions that you posed to Mr. Davis.

[00:13:18] Speaker 02:
First, Judge Robinson, your question about the content of the complaint, just to read the allegation in the verified complaint as it goes to Inspector Molnar.

[00:13:26] Speaker 02:
I.G.

[00:13:27] Speaker 02:
Molnar instructed me to find you guilty on all charges.

[00:13:30] Speaker 02:
That's a quote from the complaint.

[00:13:32] Speaker 02:
We think that's definitive on that issue.

[00:13:34] Speaker 00:
Your friend on the other side says that it's undisputed that there was review of Mr. McNeil's confinement.

[00:13:38] Speaker 00:
Do you agree?

[00:13:40] Speaker 02:
We do not agree, Your Honor, that there was review of this confinement.

[00:13:44] Speaker 00:
I can't really tell from the record what review was done.

[00:13:50] Speaker 00:
I think that arguably some review was done because his confinement was reduced from the original 23 months to 8 months.

[00:14:00] Speaker 00:
So how do you address the argument that the state is making on this point?

[00:14:06] Speaker 02:
Right, so we have a couple different responses.

[00:14:08] Speaker 02:
What I want to start with just by clarifying my immediate response, which is there was some review that occurred.

[00:14:13] Speaker 02:
What we were getting at was Judge Miller's question earlier that there was no review assigned to Mr. McNeil as part of the sanction he received from Inspector Glass.

[00:14:22] Speaker 02:
It's our position that the sanction he received would have implicated his liberty interest, though we believe that even if the court were to view the actual time served in confinement, that would qualify as well.

[00:14:31] Speaker 02:
As to the review itself, after about four months, there was a

[00:14:36] Speaker 02:
Result review that reduced his sentence in disciplinary segregation by about a month and about another three months after that it was reduced another month and then after close to eight or nine months Apparently pursuant to no disciplinary review whatsoever So we don't believe anything on the record suggests this occurred pursuant to any review his segregation was just suspended

[00:14:58] Speaker 02:
So that's sort of the factual basis.

[00:15:00] Speaker 05:
Council, do you take issue with opposing council's representation that this solitary confinement was not atypical for solitary confinement in prisons?

[00:15:12] Speaker 02:
We absolutely do.

[00:15:13] Speaker 05:
And so how?

[00:15:15] Speaker 02:
So there's a couple of different responses to that, Your Honor, so I was just going to walk through them.

[00:15:19] Speaker 02:
So the first goes to his argument about Brown, which we think he's misinterpreting.

[00:15:23] Speaker 02:
Opposing counsel's argument centers that the core of Brown was that the lack of periodic meaningful review constituted a condition of confinement that implicated Mr. Brown's liberty interest.

[00:15:35] Speaker 02:
We don't think that's the correct reading of Brown.

[00:15:37] Speaker 02:
If you look at Brown, the lack of periodic meaningful review is that which created the due process violation itself.

[00:15:44] Speaker 02:
The not reviewing the conditions of his confinement for 27 months is what created the due process violation.

[00:15:50] Speaker 02:
We don't believe it's intrinsic nor do we think it makes sense to take the due process violation and go to whether there was a liberty interest in the first place.

[00:15:58] Speaker 02:
So we disagree with his argument there that any kind of review whatsoever would counter our claim there.

[00:16:04] Speaker 02:
In addition to that,

[00:16:06] Speaker 02:
The Supreme Court has set out a couple of baseline criteria in which to assess whether disciplinary confinement or solitary confinement is comparable or atypical.

[00:16:17] Speaker 02:
One of those, the first one, is whether it's comparable to the conditions of administrative segregation.

[00:16:22] Speaker 02:
Opposing counsel spoke about this a lot in its brief.

[00:16:25] Speaker 02:
So I would just like to note a couple differences between disciplinary segregation in the state of Nevada at the time as laid out in their own prison regulations to administrative segregation.

[00:16:36] Speaker 02:
And I think the court will note that there are substantial differences.

[00:16:39] Speaker 02:
So first, someone in disciplinary segregation, this is per NDOC 733 at the time, is entitled to five hours outside a week versus someone in administrative segregation who's entitled to seven.

[00:16:51] Speaker 02:
That's a two-hour difference, and I believe when we're counting the amount of sunshine you can see in a day, the amount of hours you get to see the sun on one hand versus two, that's a significant difference itself.

[00:17:01] Speaker 02:
In addition to that,

[00:17:02] Speaker 02:
someone in administrative segregation is typically allowed to normal visitation rights per those same regulations.

[00:17:09] Speaker 02:
Per Mr. McNeil's sanction, he was without visitation rights for an entire year, and for the second year of his sanction, and for the first year of his confinement, of course, he had no visitation rights whatsoever, but for the second year, assuming he would have served it, he had only behind glass no contact visitation.

[00:17:27] Speaker 01:
Right.

[00:17:27] Speaker 01:
So those are some differences.

[00:17:29] Speaker 01:
I mean, we have a set of similarities, a set of differences.

[00:17:33] Speaker 01:
We have Brown, which is 27 months.

[00:17:35] Speaker 01:
This is only eight months.

[00:17:37] Speaker 01:
What is the law that would have clearly established that there is a liberty interest and thus put the officers on notice that the sanction that actually was imposed would have run afoul of our decision in Brown?

[00:17:54] Speaker 02:
Of course, Your Honor.

[00:17:54] Speaker 02:
So we think Brown itself would establish that, because at base, we think at Brown, at a minimum, establish that there is a sufficiently long period of time where someone sent to administrative segregation, or pardon me, disciplinary segregation, meets that bar.

[00:18:07] Speaker 01:
But does Brown establish that eight months is over the line?

[00:18:11] Speaker 02:
We think Brown establishes that there are sufficient conditions where it would cross the line.

[00:18:14] Speaker 02:
Other cases in this circuit predating that had found sufficiently poor conditions with less time would violate that.

[00:18:21] Speaker 02:
In addition, I'd point your honor to Malnick.

[00:18:24] Speaker 02:
That's a 2021 case that was looking at conditions of confinement in the state of Nevada in 2015.

[00:18:30] Speaker 02:
And there, the plaintiff received a 36-month

[00:18:32] Speaker 02:
sanctioned and only served, I believe, just under 11 months, Your Honor.

[00:18:37] Speaker 02:
So we think that directly stands for the proposition that a sufficiently long sanction with extreme conditions about, with content, pardon me, with extreme conditions, restrictions on human contact, being able to speak and see other people, is sufficient to implicate that, particularly given those notable differences between administrative segregation and disciplinary segregation.

[00:19:01] Speaker 02:
Now, I'd just like to note a couple more differences between this.

[00:19:04] Speaker 00:
Can I just ask, so in Brown, it was not just the length of time, but it was also sort of the number of hours per day that the defendant was allowed no contact.

[00:19:14] Speaker 00:
So would it be appropriate to consider that similarity in this confinement, regardless of the sort of 8-month versus 23-month, that the fact of the matter is for your client, was there the same restriction on the contact for the number of hours of day?

[00:19:30] Speaker 02:
Yes, your honor.

[00:19:31] Speaker 02:
Mr. McNeil had no visitation rights whatsoever.

[00:19:33] Speaker 02:
And if you're asking about the specific time he spent in his cell, one, we would cite the, of course, the administrative record, pardon me, the administrative regulations that limit his ability to go outside and speak with other people to just five hours a week.

[00:19:46] Speaker 02:
And we'd also point to the district court's factual visitation.

[00:19:49] Speaker 05:
Are you saying there was absolutely no

[00:19:51] Speaker 05:
right to visitation from those outside the prison.

[00:19:55] Speaker 02:
That's Lieutenant Glass sanctioned for the first year of his confinement.

[00:20:00] Speaker 02:
Yes, Your Honor.

[00:20:00] Speaker 02:
That's on the recording.

[00:20:03] Speaker 00:
Is there anything in the record that talks about whether or not his visitation rights were restored?

[00:20:07] Speaker 02:
Nothing suggests that they were, Your Honor.

[00:20:11] Speaker 02:
And to follow up, the district court had a factual finding in its order that he was confined for 23 hours a day.

[00:20:17] Speaker 02:
And we think that's dispositive on this issue where there is record support on interlocutory review.

[00:20:24] Speaker 02:
Now, the last thing I want to touch on is, in brief, the due process issue that, pardon me.

[00:20:32] Speaker 05:
answering my questions about the personal involvement.

[00:20:35] Speaker 02:
Yes, Your Honor.

[00:20:36] Speaker 02:
OK.

[00:20:37] Speaker 02:
Yeah, I wanted to get to the administrative reviews as well.

[00:20:40] Speaker 02:
Pardon me, the grievance procedures.

[00:20:41] Speaker 02:
And they're, just like Your Honor's noted in your questioning, our theory here is not that Mr. McNeil was entitled to a specific form of disciplinary procedure, but rather that it was clearly established law in the Ninth Circuit at the time, that if a prison official who reviews a constitutional violation sees those facts on the record and chooses to ratify it, and if you look at the

[00:21:01] Speaker 01:
that there was a violation of due process that they violated due process in their consideration of his grievance or that they.

[00:21:31] Speaker 02:
The latter, Your Honor, that by ratifying it, they took on their own due process violation.

[00:21:36] Speaker 01:
And why is, I mean, I mean, your friend on the other side, I'm not sure that the judicial appellate analogy is exactly analogous, but they are acting in a sort of quasi-appellate capacity.

[00:21:50] Speaker 01:
And I mean, it seems somewhat concerning to have a rule that deciding an appeal incorrectly would make you liable for something.

[00:22:00] Speaker 02:
So your honor that's goes to the 9th circus decided in Blankenhorn versus City of Orange that there are and in part of the other case as well.

[00:22:08] Speaker 02:
McViever honest was a district court decision that site circuit court decisions from the circuit in the appropriate time that sustained.

[00:22:15] Speaker 02:
process complaints against prison officials on that theory, where the prison official was aware of the underlying issues and still chose to ratify it, and we think this is an important factor as well to address your concerns, Your Honor, where the prison official was in a position where they could have resolved the underlying issue.

[00:22:30] Speaker 02:
If you look at the timeline of the reviews, both Def.

[00:22:33] Speaker 02:
Nevins and Def.

[00:22:34] Speaker 02:
Brinn were reviewing this complaint while Mr. McNeil was still in solitary confinement.

[00:22:39] Speaker 01:
I guess this is a question of Nevada administrative law.

[00:22:43] Speaker 01:
Do they owe any deference to the initial hearing officer when they're evaluating a grievance that's complaining about how the hearing was conducted?

[00:22:54] Speaker 01:
I can't speak to the standard of review, Your Honor.

[00:22:56] Speaker 01:
I'm not familiar with that.

[00:22:57] Speaker 01:
Does that make a difference?

[00:22:58] Speaker 01:
If it were a deferential review, then

[00:23:03] Speaker 01:
then it's harder to say that they're really ratifying anything, isn't it?

[00:23:08] Speaker 01:
If, for example, all they had said was, well, we don't think he abused his discretion, then that's not really a ratification of what he did, is it?

[00:23:14] Speaker 02:
So let me give two brief responses.

[00:23:16] Speaker 02:
I see my time's expired.

[00:23:17] Speaker 02:
May I?

[00:23:18] Speaker 05:
I just wanted to say that the critical point on this is all of them were part of the prison system.

[00:23:24] Speaker 05:
It wasn't like an appeal to an impartial official.

[00:23:30] Speaker 02:
We agree with that as well, Your Honor.

[00:23:31] Speaker 02:
And may I just give my brief response to Judge Miller?

[00:23:33] Speaker 02:
Thank you.

[00:23:35] Speaker 02:
We agree that perhaps there is a world in which a particular system could be created in which there would be some serious deferential review.

[00:23:42] Speaker 02:
That might itself raise its own issues that we won't get into right now, depending on other guarantees.

[00:23:47] Speaker 02:
But here, if you look at the records, both defendants say that they reviewed the record and found there to be no issue.

[00:23:53] Speaker 02:
Nor do we think there's support on the record that opposing counsel cited or anything in this.

[00:23:57] Speaker 02:
This suggests that some sort of deferential review would make a difference here.

[00:24:02] Speaker 02:
For all the reason, thank you.

[00:24:04] Speaker 05:
Thank you, Council.

[00:24:04] Speaker 05:
Thank you once again for your pro bono service.

[00:24:06] Speaker 02:
Of course, Your Honor.

[00:24:07] Speaker 05:
Good bottle.

[00:24:11] Speaker 05:
I'm sure Mr. Davis can tell us about the administrative process and I probably could too, but I won't.

[00:24:19] Speaker 05:
Is there a difference?

[00:24:21] Speaker 03:
I don't believe that there is any regulation that requires them to provide any specific deference to the things, but I may be wrong there.

[00:24:31] Speaker 03:
But that's my opinion at this point.

[00:24:36] Speaker 00:
But the problem with that is... They had the authority to grant a new disciplinary proceeding, correct?

[00:24:41] Speaker 00:
They had the authority to grant a new disciplinary proceeding, correct?

[00:24:46] Speaker 03:
They could, Your Honor.

[00:24:48] Speaker 03:
Yes, but if you take a look at also the facts of the case, if you want to look at it about giving deference, right?

[00:24:53] Speaker 03:
They also had, they could review the underlying tape just like I've asked their Honors to review it.

[00:24:58] Speaker 03:
And if they come to the conclusion that none of this ever happened,

[00:25:01] Speaker 03:
right, then that's a legitimate conclusion that they could reach.

[00:25:06] Speaker 03:
And they're entitled to make that conclusion.

[00:25:07] Speaker 03:
There's no way you can hold them liable because they decided, different from your honors, that, hey, something that they didn't want to believe him on that issue.

[00:25:18] Speaker 05:
It's not on the merits.

[00:25:20] Speaker 05:
It's on the process.

[00:25:22] Speaker 05:
So the difficulty here is if he asked for a witness

[00:25:28] Speaker 05:
to for his defense.

[00:25:31] Speaker 05:
And that request was denied.

[00:25:33] Speaker 05:
And then he filed a grievance saying, I asked for, I wasn't able to properly defend myself.

[00:25:38] Speaker 05:
I asked for a witness and it was denied.

[00:25:41] Speaker 05:
And the reviewers said that was OK, even though it was a violation of his due process rights.

[00:25:49] Speaker 05:
That's not the merits.

[00:25:51] Speaker 03:
But that's not what happened here, Your Honor.

[00:25:52] Speaker 03:
They reviewed the tape, and they come to the conclusion that he never requested it.

[00:25:56] Speaker 03:
That's what I'm saying, that if you review the tape, you will never find a place where there's a break in the tape where he requested it.

[00:26:02] Speaker 03:
They came to the same conclusion.

[00:26:02] Speaker 05:
He requested the witness ahead of the hearing, correct?

[00:26:05] Speaker 03:
What?

[00:26:06] Speaker 05:
Don't say what to me.

[00:26:07] Speaker 05:
Sorry, Your Honor.

[00:26:09] Speaker 05:
He requested the witness before the hearing, correct?

[00:26:13] Speaker 03:
No, Your Honor, he did not.

[00:26:14] Speaker 05:
And so the only evidence in the record regarding him requesting the witness is his declaration?

[00:26:20] Speaker 03:
It's his statement that he requested it when the tape wasn't going on.

[00:26:25] Speaker 03:
And so they should have the ability without facing a due process challenge in the case.

[00:26:32] Speaker 03:
I also wanted to make clear, because I guess I'm way over my time, but I want to talk about the Melnick case and the Brown case.

[00:26:37] Speaker 03:
Briefly.

[00:26:38] Speaker 03:
The Melnick case was decided in 2021.

[00:26:40] Speaker 03:
The hearing in here was 2016.

[00:26:44] Speaker 03:
Cannot possibly have established anything clearly established.

[00:26:47] Speaker 03:
Same thing with the Brown case.

[00:26:49] Speaker 03:
The Brown case came out, and it said,

[00:26:52] Speaker 03:
These conditions of confinement that he's complaining of, this HRP status, which there's no evidence in the record that he was ever on HRP status.

[00:27:00] Speaker 03:
But it says that if he was in those same kind of conditions that are in HRP status, that would not be enough.

[00:27:06] Speaker 03:
It's the periodic review.

[00:27:08] Speaker 03:
And so I think you would be setting a bad decision to say, hey, you know, we can't rely on Brown saying that, hey, that's not enough.

[00:27:18] Speaker 03:
As long as we provide him with periodic review, you're going to not violate his due process rights.

[00:27:22] Speaker 03:
And that's exactly what happened here.

[00:27:24] Speaker 03:
It's undisputable.

[00:27:26] Speaker 03:
based on the record that he received it, and he was reduced to sentence to eight months.

[00:27:29] Speaker 03:
And to answer your questions, once his eight months was up, he was entitled to have visitation rights.

[00:27:35] Speaker 05:
We're in the record.

[00:27:37] Speaker 05:
Can we look to show that there was a review process set up?

[00:27:40] Speaker 03:
You look at all the notes, the case notes in his thing.

[00:27:44] Speaker 03:
It talks about the review, and it talks about reducing all of it.

[00:27:47] Speaker 03:
Part of the order, though.

[00:27:48] Speaker 03:
It wasn't part of the order, but it's part of the record before this court.

[00:27:51] Speaker 05:
Got it.

[00:27:52] Speaker 03:
Thank you.

[00:27:52] Speaker 05:
Thank you.

[00:27:53] Speaker 05:
Thank you to both counsel.

[00:27:53] Speaker 05:
The case just argued is submitted for decision by the court.

[00:27:57] Speaker 05:
We will be in recess until 1125.