[00:00:00] Speaker 03:
Please come forward and I understand you are going to be Splitting your time for four and two is that correct yes, and are you dividing the issues in any particular way?

[00:00:13] Speaker 01:
I will be discussing the clearly established prong of qualified immunity and my co-counsel be discussing the eighth amendment violation Okay, all right.

[00:00:23] Speaker 01:
Thank you.

[00:00:23] Speaker 01:
Go ahead, please I

[00:00:26] Speaker 01:
Good morning, your honors, and may it please the court.

[00:00:28] Speaker 01:
My name is Dominique Cato, and I, along with my co-counsel Alice Chang, represent appellant Roy Moraga.

[00:00:34] Speaker 01:
At this time, we would like to request two minutes for rebuttal.

[00:00:38] Speaker 01:
Defendants are not entitled to qualified immunity because the law was clearly established at the time of their conduct in 2021.

[00:00:45] Speaker 01:
As an initial matter, Moraga would note that the district court did not reach this issue, and therefore this court should remand.

[00:00:51] Speaker 01:
However, if this court were to decide on qualified immunity,

[00:00:54] Speaker 01:
We ask that you find defendants are not entitled to it.

[00:00:57] Speaker 01:
First, I would like to distinguish between Carly V. Aranis.

[00:01:00] Speaker 01:
That case does not control for two reasons.

[00:01:04] Speaker 01:
First, Carly dealt with the claim that the NDLC medical directive was unconstitutional and no such claim is present here.

[00:01:12] Speaker 01:
Instead, we are arguing that the defendants failed to comply with the policy.

[00:01:17] Speaker 01:
Second, Carly dealt with an entirely different write-out issue.

[00:01:21] Speaker 01:
There the question was whether a prison medical director would have had noticed that the NDOC hepatitis policy was unconstitutional at the time.

[00:01:30] Speaker 01:
And here our right at issue is the right against a denial, delay, or an intentional interference with adequate medical treatment for hepatitis C, especially when in violation of a prison health care policy.

[00:01:41] Speaker 03:
Can I ask you a question on that?

[00:01:43] Speaker 03:
Doesn't Carly specifically reject that?

[00:01:46] Speaker 03:
There's language in Carly.

[00:01:48] Speaker 03:
that says, it's true we've held that prison doctors are deliberately indifferent when they fail to provide or delay providing necessary medical treatment.

[00:01:56] Speaker 03:
But again, we believe this defines the right too broadly in light of our precedent that requires to look at the law in light of the specific context of the case, not as a broad general proposition.

[00:02:08] Speaker 01:
Yes, Your Honor.

[00:02:08] Speaker 01:
However, we're arguing that ours is particularized to the facts of our case, given that this court's precedent in Tatum v. Winslow, which held that it's a delay or denial of hepatitis C treatment,

[00:02:19] Speaker 01:
was clearly established, and this court denied qualified immunity and sovereign judgment in that case.

[00:02:24] Speaker 01:
Additionally, Tatum also involved a hepatitis C policy, which received the blessings of the Madrid court, which this court said that the health care manager had every reason to believe that violating it constituted a violation of clearly established law.

[00:02:37] Speaker 01:
And similarly here, the NDSC- So what is the exact violation here?

[00:02:42] Speaker 03:
Your Honor- Or specific?

[00:02:43] Speaker 03:
Just denial of right to treatment is too general.

[00:02:47] Speaker 03:
What is it specifically?

[00:02:49] Speaker 01:
It's the right to adequate monitoring and including a new APRI score, which the NDOC Medical Directive 219 at ER 131 states.

[00:02:58] Speaker 04:
They were not allowed.

[00:03:00] Speaker 04:
Where have you raised that in?

[00:03:02] Speaker 04:
I guess, where could I find that in the record?

[00:03:07] Speaker 04:
Because I think he says, I requested to start the hep C treatment, which is pretty general and best read as an attempt to invoke the medical directive.

[00:03:18] Speaker 01:
Yes, Your Honor.

[00:03:20] Speaker 01:
We discussed that in our reply brief.

[00:03:22] Speaker 01:
We bring that up.

[00:03:24] Speaker 04:
Why would that be enough?

[00:03:26] Speaker 04:
It was, I guess, surprising not to see Carly addressed at the outset.

[00:03:31] Speaker 04:
So why should framing this in your reply brief not be viewed as not raising the issue properly to begin with in the appeal?

[00:03:43] Speaker 01:
Your Honor, we replied to the defendant's argument of qualified immunity.

[00:03:48] Speaker 01:
We didn't bring up qualified immunity because we don't believe defendants are entitled to it.

[00:03:53] Speaker 01:
Again, Carly doesn't clarify the right at issue in this case, which is the denial or delay of hepatitis C treatment, coupled with the violation of the policy.

[00:04:02] Speaker 04:
Why could the prison staff not rely on Carly for purposes of qualified immunity?

[00:04:10] Speaker 01:
Because Carly was dealing with whether the hepatitis C policy was unconstitutional at the time.

[00:04:16] Speaker 01:
Here we're arguing that they failed to comply with the co-op policy, not that the endoc policy is unconstitutional.

[00:04:22] Speaker 03:
Let's talk about that policy.

[00:04:24] Speaker 03:
So you're saying the violation is the right to adequate monitoring?

[00:04:28] Speaker 03:
Is that right?

[00:04:29] Speaker 03:
Yes.

[00:04:29] Speaker 03:
Okay, so if I look at MD 219, it says any inmates with HCV who have not been treated with DAAs will be evaluated every six months.

[00:04:41] Speaker 03:
Including obtaining a new APR I score.

[00:04:45] Speaker 03:
I think it's been clear from the testing that was done on Mr. Moraga that he didn't have HCV His APR I score was too low.

[00:04:56] Speaker 03:
It was within the normal range so he wasn't entitled to get the DAA the direct acting antiviral treatment and

[00:05:05] Speaker 03:
even according to MD 219.

[00:05:08] Speaker 03:
So what is the monitoring that he didn't get if he, or actually point me to a specific provision of 219 that says that someone with Mr. Moraga's health scores would have been entitled to more monitoring.

[00:05:25] Speaker 01:
Your Honor, we want to point out that the only APRA score in the record is from February 25th of 2022.

[00:05:32] Speaker 01:
This was at least a year after Moraga submitted his grievances and is the one that the defendants are relying on.

[00:05:38] Speaker 01:
Additionally, even after six months of February, there was no other APRI score.

[00:05:43] Speaker 01:
There should have been one in August.

[00:05:44] Speaker 01:
However, there's nothing in the record that states that.

[00:05:47] Speaker 03:
They were required to have... But why is he entitled to a score, an APRI score every six months if he doesn't have HCV and he's not entitled to the direct

[00:06:02] Speaker 03:
anti or acting antiviral treatment because if I'm I mean you need to point me to where in MD 219 does it say that somebody in Mr. Moraga's situation is entitled to get new APR that my understanding is the reason you get APRI scores every six months if you have HCV is

[00:06:25] Speaker 03:
is so that they can determine whether your priority, since MD219 is a prioritization scheme of this treatment, of whether your priority should be increased based on the fact that your APRI score is getting worse or your conditions are getting worse.

[00:06:41] Speaker 03:
So if you're not even entitled to get the DAA treatment in the first place, what says you get every six month new APRI scores?

[00:06:49] Speaker 01:
It is a genuine dispute of material fact of whether Moraga has hepatitis C, and therefore he had not been treated with the AAs, and he should have been evaluated every six months.

[00:06:58] Speaker 01:
The defendants prioritize the policy and the API scoring based on the score, and therefore they should have done the score every six months.

[00:07:08] Speaker 03:
OK.

[00:07:08] Speaker 03:
Show me where in the record it says he has hep C, right?

[00:07:13] Speaker 03:
Because his viral load was undetected.

[00:07:18] Speaker 03:
Right?

[00:07:18] Speaker 03:
His APRI scores with the normal range.

[00:07:21] Speaker 03:
He has no fibrosis.

[00:07:23] Speaker 03:
His abdominal x-ray is normal.

[00:07:25] Speaker 03:
Show me where in the record he has HCV.

[00:07:29] Speaker 01:
Your Honor, that is for my co-counsel to discuss.

[00:07:32] Speaker 01:
However, the undetected score doesn't underlie the fact that he didn't have hep C at any point in time.

[00:07:40] Speaker 01:
If there are no further questions to qualify to immunity, I'll turn to my co-counsel.

[00:07:46] Speaker 03:
That's fine.

[00:07:46] Speaker 03:
Thank you.

[00:07:50] Speaker 02:
Good morning, Your Honors, and may it please the Court, Alice Chang, on behalf of Mr. Moraga.

[00:07:55] Speaker 02:
Mr. Moraga's Eighth Amendment claim survives summary judgment for three reasons.

[00:08:00] Speaker 02:
First, there's a genuine issue of material fact as to whether Moraga had chronic hep C. Second, defendant's denial of crucial medical treatment caused Moraga further injury.

[00:08:12] Speaker 02:
And finally, defendants are each liable for deliberate indifference.

[00:08:17] Speaker 02:
To my first point, the District Court correctly found

[00:08:20] Speaker 02:
that the record indicates a genuine issue of material fact as to how whether Moraga has chronic hep C. First, at ER 264, based on Moraga's visit at the chronic care clinic on February 18, 2021, the doctor specifically documented one of his specific illnesses as hep C. Further- Okay, I'm looking at ER 264, and the assessment just showed diabetes and hypertension.

[00:08:51] Speaker 03:
You may have come in and said, hey, I was at some point in my life exposed to hep C. But when they did the testing, what they determined he actually had at that moment was diabetes and hypertension.

[00:09:03] Speaker 02:
Your Honor, the record indicates at the top that one of his specific illness is hep C. The fact that the rest of the record does not discuss his hep C diagnosis indicates that these defendants did not monitor him for this hep C illness.

[00:09:19] Speaker 02:
in compliance with medical directive 219.

[00:09:21] Speaker 04:
Why wasn't that just a mistake or a cautionary assumption going in?

[00:09:26] Speaker 04:
Is there any evidence after the test came back, the follow-up tests came back negative?

[00:09:34] Speaker 04:
Is there any evidence after that point that he had hep C?

[00:09:37] Speaker 02:
To clarify, the HCV test of whether he had hep C occurred in November of 2022.

[00:09:42] Speaker 02:
This record of his visit

[00:09:46] Speaker 02:
at the chronic care clinic for hep C a code in around February 2021 when Moraga.

[00:09:52] Speaker 02:
submitted his complaints and his grievances.

[00:09:55] Speaker 02:
And furthermore, as indicated at ER 241 and ER 243, both Defendants Ramber and Defendants Menev acknowledged that he was enrolled in the chronic care clinic for Hep C. And as, excuse me, Defendant Richard and Defendant Menev.

[00:10:12] Speaker 02:
As Defendant Richard indicated in her grievance response at ER 243, she stated that, she outlined the process of enrollment in the chronic care clinic.

[00:10:21] Speaker 03:
stated that you do you believe that if someone has been exposed to hep C they can show reactivity to an hep C antibody but they won't necessarily have enough of the hep C viral load for hepatitis C to be detected isn't that what in fact happened with mr. Moraga

[00:10:41] Speaker 02:
Again, these tests occurred in 2022 and do not demonstrate that he did not have hep C during the relevant period of his complaints.

[00:10:49] Speaker 03:
And again, but you're saying your argument is that the injury.

[00:10:56] Speaker 03:
From his hepatitis C is the gallbladder stones correct and the gallbladder issues right so his gallbladder issue was November 24th 2022 correct right so November 29 2022 He gets tested and there's no hep C virus detected

[00:11:13] Speaker 02:
Yes, but based on the same specimen, there was an HCV antibody test that returned a reactive positive test.

[00:11:20] Speaker 02:
Right.

[00:11:20] Speaker 03:
Well, that's what I'm asking.

[00:11:21] Speaker 03:
Is this like tuberculosis, where if you've been exposed to tuberculosis, you will test positive on a tuberculosis skin test, but you may not actually have it actively growing in your lungs?

[00:11:32] Speaker 02:
If medical literature indicates that when you have a positive result based off of a

[00:11:37] Speaker 02:
Antibody test and then a negative RNA test this indicates that the patient likely had Hepatitis C at some point in the past, right?

[00:11:47] Speaker 03:
It's a prior exposure, correct?

[00:11:49] Speaker 03:
It doesn't mean that they actively have it at that moment Yes, yes you honor and that is in fact what the test showed on November 29 2022 There was no hep C virus detected in his viral load test, correct?

[00:12:03] Speaker 02:
Yes, but drawing all reasonable inferences in favor of Moraga, this does not mean that hepatitis C did not have a causal relationship on his further injury.

[00:12:13] Speaker 02:
In fact, as indicated at page 17 of Moraga's motion to supplement, Moraga's doctor stated that he thought the gallbladder... Let's go back.

[00:12:22] Speaker 03:
I still don't understand the MD 219 as requiring six-month APRI scores.

[00:12:30] Speaker 03:
for Mr. Moraga.

[00:12:31] Speaker 03:
Can you point me to what part of MD 219?

[00:12:35] Speaker 03:
I'm looking at ER 129 through 134.

[00:12:39] Speaker 03:
What specific section should I be looking at?

[00:12:42] Speaker 03:
Because the only one I see is on ER 131 that says any inmates with HCV who have been not treated with DAAs will be evaluated every six months, including a new APRI score.

[00:12:57] Speaker 03:
Yes.

[00:12:57] Speaker 03:
Where does it say that if you have ever previously either been exposed to hepatitis C or previously in the past had it, you still have to get a new APRI score every six months?

[00:13:09] Speaker 02:
Joanne, that provision governs individuals that are enrolled in the chronic care clinic for HCV.

[00:13:15] Speaker 02:
So we can reasonably infer that that provision applied to Moraga.

[00:13:19] Speaker 02:
Wait.

[00:13:20] Speaker 02:
No, but what I'm asking you, where is that provision?

[00:13:23] Speaker 02:
It's at EO 131, Joanne.

[00:13:26] Speaker 02:
I think you probably quoted it.

[00:13:28] Speaker 03:
But your co-counsel said this is what you're arguing is failure to comply with MD 219, correct?

[00:13:36] Speaker 03:
Correct.

[00:13:37] Speaker 03:
That is your argument.

[00:13:39] Speaker 03:
So where in 219 does it require six-month new APRI scores for someone who does not have active hepatitis C?

[00:13:49] Speaker 03:
That is my question.

[00:13:50] Speaker 02:
Your Honor, Moraga did have Hepatitis C. As defendant Richard stated in her grievance response, you're not enrolled in the clinic unless there is a confirmation of a positive diagnosis for Hep C. OK.

[00:14:04] Speaker 03:
Since I've not gotten an answer from you or your co-counsel, I'm going to assume that that requirement is not in MD 219.

[00:14:10] Speaker 03:
Is that correct?

[00:14:11] Speaker 02:
The requirement, we can reasonably infer it is from MD 219 because... But where?

[00:14:16] Speaker 03:
Where in the penumbra of MD 219 do I find that assumption or requirement?

[00:14:27] Speaker 02:
MD 219.02 provision I, Your Honor, stating that inmates enrolled in the clinic for Hep C must be reevaluated every six months.

[00:14:37] Speaker 03:
Okay.

[00:14:38] Speaker 03:
Can you give me an ER site, please?

[00:14:40] Speaker 03:
ER 131.

[00:14:41] Speaker 03:
Okay.

[00:14:41] Speaker 03:
That's the same provision I've been reading.

[00:14:43] Speaker 03:
Yes.

[00:14:43] Speaker 03:
Any inmates with HCV?

[00:14:45] Speaker 03:
Okay.

[00:14:46] Speaker 03:
What hepatitis treatment was, do you believe Mr. Moraga was denied?

[00:14:54] Speaker 03:
Is it the direct acting antivirals?

[00:14:56] Speaker 03:
No.

[00:14:57] Speaker 03:
It was the most minimal monitoring.

[00:14:59] Speaker 02:
Which is what?

[00:15:00] Speaker 02:
Which includes the reevaluation of whether he qualified for DAA treatments every six months.

[00:15:05] Speaker 02:
So it's getting a new APRI score every six months?

[00:15:08] Speaker 02:
Well, yes.

[00:15:09] Speaker 02:
Yes, Your Honor.

[00:15:11] Speaker 02:
I have thrown out for the questions.

[00:15:12] Speaker 02:
We'd like to reserve the remainder of our time for a battle.

[00:15:14] Speaker 02:
Thank you very much.

[00:15:15] Speaker 03:
OK, thank you.

[00:15:34] Speaker 00:
I appreciate the opportunity to address this court.

[00:15:40] Speaker 00:
My name is Chris Davis.

[00:15:41] Speaker 00:
I represent the appellees.

[00:15:45] Speaker 00:
First of all, I'd like to address this argument about MD 219, because while we

[00:15:50] Speaker 00:
Disagree and I think your honor is correct that there is no provision in there that that we were required to give him a APR score every six months.

[00:15:59] Speaker 03:
Why not?

[00:16:00] Speaker 03:
Any inmates with HCV who have not been treated with DAAs, I think we all agree Mr. Moraga was not treated with DAAs, will be evaluated every six months including obtaining a new APRI score.

[00:16:11] Speaker 03:
Why doesn't that apply to him?

[00:16:12] Speaker 00:
Because the first thing is he has to have hepatitis C, an active case of hepatitis C. Why isn't there a genuine dispute as to that fact?

[00:16:19] Speaker 00:
Well, because there is no objective medical evidence establishing that he has an active case of hepatitis C in the record.

[00:16:26] Speaker 03:
You have to have evidence in order to... But where does MD 219 says that it has to be active?

[00:16:32] Speaker 03:
I don't see a definition of HCV in this document, right?

[00:16:36] Speaker 03:
It could apply to someone who had a prior exposure and previously had hepatitis C. Your Honor, respectfully,

[00:16:48] Speaker 00:
Our interpretation of MD-219 is that it has to be an active infection because only an active infection would endanger the health of the inmate.

[00:16:55] Speaker 00:
If there's not an active infection, there's no need to do an APRI score.

[00:17:00] Speaker 00:
The whole purpose of having MD-219 is to prevent inmates from damaging their liver.

[00:17:06] Speaker 00:
And if they don't have an active hepatitis C score, they're not going to have one.

[00:17:10] Speaker 00:
Once they're cured of hepatitis C, they're not going to have one.

[00:17:13] Speaker 03:
OK, if I look at MD-219, I'm sorry to interrupt you.

[00:17:15] Speaker 03:
It just defines HCV as chronic hepatitis C as diagnosed by qualified medical practitioner.

[00:17:22] Speaker 03:
And Mr. Moraga was already in the chronic disease infectious disease clinic.

[00:17:27] Speaker 00:
That's that's correct your honor.

[00:17:28] Speaker 00:
He was in the crop.

[00:17:29] Speaker 00:
He was in the disease clinic for two conditions.

[00:17:32] Speaker 00:
One was diabetes and one was hypertension.

[00:17:35] Speaker 00:
When he did when he when he filed his when he filed his grievance saying that he had hepatitis C they then

[00:17:42] Speaker 00:
said, OK, well, we're going to have the chronic.

[00:17:43] Speaker 00:
Since you're already in the chronic care unit, we're going to have you

[00:17:50] Speaker 03:
We're going to have you evaluated for hepatitis C. And as your honor wrote it on the... But where did they... I don't see in ER 264 him being evaluated for hepatitis C. Well, he wasn't... Well, it does.

[00:18:02] Speaker 00:
It says at the very top corner that they're coming in here to evaluate him for hepatitis C. But when they get to the assessment at the bottom, all they assess him with is hypertension and with diabetes.

[00:18:12] Speaker 03:
That says what he was diagnosed with having.

[00:18:16] Speaker 03:
That doesn't say what he was actually assessed and tested for.

[00:18:19] Speaker 00:
No, no.

[00:18:19] Speaker 03:
In the top right-hand corner.

[00:18:20] Speaker 03:
I know.

[00:18:21] Speaker 03:
The top right-hand corner says, check all that apply.

[00:18:24] Speaker 03:
And under infectious disease-specific illness, it says hep C. But if I look under the assessment, I don't see anything saying, we tested you for hep C, and you just don't have anything active or previous.

[00:18:36] Speaker 00:
Well, it doesn't say that with clarity, the clarity that I guess your honor wants.

[00:18:42] Speaker 00:
Because they didn't put down that he has hepatitis C, they didn't assess him with it.

[00:18:46] Speaker 00:
It's an assessment.

[00:18:47] Speaker 00:
We're assessing what you have.

[00:18:49] Speaker 00:
And they don't put down the assessment.

[00:18:51] Speaker 03:
But why isn't this, going back to Judge Johnstone's question, why isn't this a genuine dispute of fact as to whether he was actually evaluated for hep C at this time?

[00:19:00] Speaker 00:
Your Honor, I don't think it's whether or not.

[00:19:02] Speaker 00:
Because your Honor, for example, those aren't the defendants we have in front of us.

[00:19:06] Speaker 00:
We don't have the defendants that evaluated him, the people that did the evaluations.

[00:19:10] Speaker 00:
What we have are three grievance responders.

[00:19:14] Speaker 00:
And so we're not even talking about who's doing the assessment or why, what there is.

[00:19:20] Speaker 00:
It's not a question of fact of whether they have an assessment.

[00:19:23] Speaker 00:
It's a question of fact of whether these people knew that he faces substantial risk of serious harm from hepatitis C. And then we're deliberately indifferent to it.

[00:19:35] Speaker 00:
There's absolutely no evidence in the record that they had any inkling or knowledge that he had an active infection of hepatitis C in the record.

[00:19:44] Speaker 00:
Without that knowledge, they cannot be delivered indifference and therefore... Hey, I'm looking at Dr. Manev's declaration.

[00:19:50] Speaker 03:
He says, you know, as part of my duties, I oversee the chronic hepatitis C treatment program.

[00:19:58] Speaker 03:
I review the test results and medical records of NDOC inmates who are afflicted with hepatitis C to determine

[00:20:04] Speaker 03:
Whether the inmates, well, there's a word missing, the inmates who require advanced forms of chronic hepatitis C treatment.

[00:20:13] Speaker 03:
So in his grievance, he did not look at the test results or medical records for Mr. Moraga.

[00:20:21] Speaker 03:
He just said, oh, when you have your next appointment, go check with the nurse.

[00:20:26] Speaker 03:
What did he say?

[00:20:26] Speaker 00:
You mean Dr. Manev?

[00:20:28] Speaker 03:
Yeah, Dr. Menev.

[00:20:29] Speaker 03:
I mean, he says in his declaration, I'm the one that reviews the test to see whether people are entitled to treatment.

[00:20:36] Speaker 03:
And in his official response to the grievance, he just says, the infectious disease and clinic nurse at your institution has been contacted to review your case.

[00:20:50] Speaker 00:
Again, Your Honor, I would say that what Dr. Menev is saying is that

[00:20:54] Speaker 00:
in this particular instance, once this case became evaluated, he took it upon himself to review Mr. Moraga's case.

[00:21:01] Speaker 00:
What Dr. Manev did in this particular instance was he went and he went to a nurse and said, hey, make sure that NB 219 is being followed.

[00:21:11] Speaker 00:
And that's what he did because

[00:21:13] Speaker 00:
They didn't have any evidence.

[00:21:14] Speaker 00:
There was no evidence that he had an active infection of hepatitis C. And so what he did is what was reasonable, which was he decided to do that.

[00:21:26] Speaker 00:
I would like to talk a little bit about qualified immunity.

[00:21:28] Speaker 04:
Well, I guess first, you've got some preceding pro se.

[00:21:37] Speaker 04:
We're having trouble making sense of the record here.

[00:21:40] Speaker 04:
Where would you point us and Mr. Moraga to the clearest statement that you think resolves the question of whether he was subject to 219?

[00:21:55] Speaker 04:
Because the test results, not everyone are defendants here, but

[00:21:59] Speaker 04:
But there's, whether it's a genuine issue, whether it's material, separate question, but this is a pretty messy record.

[00:22:08] Speaker 04:
Where should he look and where should we look to know for sure that he's not under 219?

[00:22:14] Speaker 00:
I mean, I'm not exactly certain.

[00:22:16] Speaker 00:
Well, I think the clearest point is when Dr. Manev says in his declaration that, just a second.

[00:22:27] Speaker 00:
Dr. Menev states in his declaration that he does not have a chronic infection of hepatitis C. I think that's the clearest point in the record.

[00:22:46] Speaker 04:
And the site for that?

[00:22:53] Speaker 00:
That's ER 138.

[00:22:55] Speaker 04:
Okay.

[00:22:55] Speaker 04:
And then, of course, that's in litigation after bringing these claims.

[00:23:02] Speaker 04:
Where in the underlying record do you think Mr. Moraga would have had the best chance to understand his situation, given the confusion around his diagnosis?

[00:23:16] Speaker 00:
Well, I think part of it is that when Nurse Rambler says, not Nurse Rambler, Nurse Richardson, she indicates in the agreement, she says, you don't follow under the provisions of 219.

[00:23:28] Speaker 00:
She says that directly in her when responding to that grievance.

[00:23:32] Speaker 00:
So I think that's also another clear indication.

[00:23:35] Speaker 00:
I would like to get, because the court asked us to review Carly, so I'd like to get to that.

[00:23:42] Speaker 03:
Let me ask you a question.

[00:23:46] Speaker 03:
You know, the APRI score is February 25, 2022.

[00:23:50] Speaker 03:
And I agree with you that shows that his APRI is normal.

[00:23:56] Speaker 03:
But he wasn't tested and given an APRI score from the time he first complained in January of 2021 until February of 2022.

[00:24:07] Speaker 03:
So you have a good 12 months, 13 months where he wasn't even tested.

[00:24:13] Speaker 03:
Why isn't that a failure to monitor?

[00:24:16] Speaker 00:
Because when he was monitored, they became to the conclusion he didn't have hepatitis C. And I think that's been proven with every record that you have shows that he doesn't have hepatitis C. So I don't see how you can possibly say that he did have hepatitis C anywhere in the record.

[00:24:32] Speaker 00:
I mean, because he didn't.

[00:24:33] Speaker 03:
But it sounds like you agree that hepatitis C is something that can go sort of in and out of active status, right?

[00:24:39] Speaker 00:
No, Your Honor.

[00:24:40] Speaker 00:
No, I don't.

[00:24:41] Speaker 00:
Sorry.

[00:24:43] Speaker 03:
Where is that in the record, though?

[00:24:44] Speaker 03:
That information.

[00:24:45] Speaker 00:
Your Honor, well, the best place to that again would be Dr. Menaev's declaration where he says he doesn't suffer from chronic hepatitis C. Right.

[00:24:56] Speaker 03:
But that declaration is based on the APRI score from February 2022.

[00:25:02] Speaker 00:
And Your Honor, we didn't have any reason to put... Oh, sorry.

[00:25:07] Speaker 03:
We didn't have any reason to put any... I guess he also says lack of clinical signs.

[00:25:10] Speaker 00:
Right.

[00:25:11] Speaker 03:
But it's unclear whether he's talking about lack of clinical science in 2022.

[00:25:16] Speaker 03:
Do you see the concern as was there a failure to monitor in 2021?

[00:25:20] Speaker 03:
I totally agree with you.

[00:25:21] Speaker 03:
2022, when Mr. Moraga had his gallbladder issues, there were no medical indications.

[00:25:30] Speaker 00:
But then again, Your Honor, because these are just grievance responders.

[00:25:33] Speaker 00:
These are not the treating doctors.

[00:25:35] Speaker 00:
It's the treating doctor to have the responsibility to

[00:25:38] Speaker 00:
monitor the conditions.

[00:25:40] Speaker 00:
In Peralta, for example, they had the chief general officer there.

[00:25:44] Speaker 00:
And this court indicated that even though he was the chief general officer in a dental case, the chief general officer could rely on the treating physicians to properly

[00:25:56] Speaker 00:
diagnose and treat the inmates.

[00:25:58] Speaker 00:
And that's what we have here.

[00:26:00] Speaker 00:
Because they couldn't possibly know.

[00:26:02] Speaker 00:
Dr. Menaven and these nurses were not his treating physicians.

[00:26:05] Speaker 00:
They were not the people seeing him.

[00:26:07] Speaker 00:
They were not the people.

[00:26:08] Speaker 00:
And that's probably the reason for the spark to the record, is because these are not the people that were involved in his care.

[00:26:15] Speaker 04:
Well, I guess the record is not sparse in certain ways.

[00:26:20] Speaker 04:
It's confusing.

[00:26:20] Speaker 04:
He files the grievances and says, you're being monitored for HCV.

[00:26:24] Speaker 04:
You're being monitored.

[00:26:25] Speaker 04:
The program, they keep responding to them.

[00:26:28] Speaker 04:
From his perspective, he has an expectation that if he raises the complaint that the person who's responding to his grievances

[00:26:36] Speaker 04:
has some sense of what's going on and he's getting these mixed messages throughout that has left us with this record and spending most of our time trying to figure out exactly whether or not he actually has a fact at HCV.

[00:26:51] Speaker 04:
He was told mixed things over this time.

[00:26:54] Speaker 00:
Well, I think you need to look at it in the chronological events, OK?

[00:26:58] Speaker 00:
So he files his grievance, right?

[00:27:00] Speaker 00:
And then Nurse Rambler notes.

[00:27:03] Speaker 00:
And then somebody, which is not part of the record, somebody, once he filed his grievance, says, OK, we're going to set an appointment with respect to his chronic care clinic to see it evaluating for hepatitis C, OK?

[00:27:15] Speaker 00:
Before that evaluation happens, Nurse Rambler responds and says, hey, you have been

[00:27:21] Speaker 00:
You've been set for appointment to be evaluated for this, right?

[00:27:25] Speaker 00:
So Nurse Rambler can't be delivered indifference because she did everything properly.

[00:27:30] Speaker 00:
She said, hey, you want to be evaluated?

[00:27:32] Speaker 00:
You have an appointment.

[00:27:34] Speaker 00:
You're going to be evaluated.

[00:27:35] Speaker 00:
So Nurse Rambler's gone.

[00:27:37] Speaker 00:
You got Nurse Richardson, comes back, OK?

[00:27:39] Speaker 00:
Now he's been evaluated.

[00:27:40] Speaker 00:
He said it.

[00:27:41] Speaker 00:
And Nurse Richardson comes back and says, hey, we went through it.

[00:27:44] Speaker 00:
We're going through the MD 219.

[00:27:46] Speaker 00:
You don't meet the qualifications for receiving treatment for hepatitis C.

[00:27:50] Speaker 00:
And therefore, she does what's right.

[00:27:52] Speaker 00:
Because after the evaluation, the doctor comes back and the assessment isn't for hepatitis C, and that's the case.

[00:27:58] Speaker 00:
Finally, it goes to Dr. Menev.

[00:28:00] Speaker 00:
Dr. Menev, out of the abundance of caution, even though with all of this other evidence to the record, comes back and says, OK.

[00:28:08] Speaker 00:
He assigned a nurse to go out and look and monitor and see whether or not ND219 was followed.

[00:28:15] Speaker 00:
And he's entitled to rely that that nurse is going to follow through with what he's asked her to do.

[00:28:20] Speaker 00:
And so he's done all that he needs to do.

[00:28:24] Speaker 00:
And that's the reason why.

[00:28:26] Speaker 00:
And like your honor indicated, this is on four floors with Carly, because none of these individuals delayed or denied treatment.

[00:28:35] Speaker 00:
But it says, even if they did, the cases they rely on are simply too general.

[00:28:42] Speaker 00:
And the Supreme Court has told this court that, in particular,

[00:28:50] Speaker 00:
that not to define the clearly established right in a level of generality.

[00:28:54] Speaker 00:
That's what's going on here.

[00:28:56] Speaker 00:
This comes under all four of Carly's.

[00:28:58] Speaker 00:
And therefore, I respectfully request that the defense are entitled to call 5 million because they did not know he had hepatitis C, even if they suspected that he had hepatitis C. That's not enough under Farmer.

[00:29:08] Speaker 00:
You have to be actually aware that he had it.

[00:29:10] Speaker 00:
And there's nothing in this record that shows that they were actually aware.

[00:29:13] Speaker 04:
Mr. Davis, I believe there are two motions to supplement the record on appeal.

[00:29:20] Speaker 04:
I believe the plaintiffs moved first and then maybe to complete the record as a better sense.

[00:29:27] Speaker 04:
Are any of the documents that you're asking us to view on appeal, were those before the district court?

[00:29:32] Speaker 00:
No.

[00:29:32] Speaker 00:
All those things that have been asked to be supplemented by both sides were not before the district court.

[00:29:38] Speaker 04:
But the thing is is that... Should we grant that or was this a defensive motion by you to complete the record based on what the plaintiffs have said?

[00:29:45] Speaker 00:
What it was is that I was... I never tried to supplement the record on behalf unless there's some reason for judicial notice, which I don't think is here.

[00:29:55] Speaker 00:
But when they cherry-picked and put a few pages

[00:29:59] Speaker 00:
in the record about, and doctors who initially opined based on Mr. Moraga's initial claim that he had hepatitis C with no tests at all, and then they put only a few pages.

[00:30:11] Speaker 00:
And then knowing that, you know, I decided, well, I'm going to go out and get the whole Carson Tahoe medical record.

[00:30:17] Speaker 04:
It sounds like your position is that you don't have a problem with the denial of your motion to supplement if we deny their motion to supplement.

[00:30:26] Speaker 04:
None of these are before the district court.

[00:30:27] Speaker 00:
No, that's true.

[00:30:28] Speaker 04:
Okay.

[00:30:29] Speaker 00:
Thanks.

[00:30:30] Speaker 03:
All right, thank you.

[00:30:31] Speaker 03:
You have two minutes for rebuttal.

[00:30:41] Speaker 02:
Two points on rebuttal, Johanna.

[00:30:43] Speaker 02:
First, Maraga would like to clarify that NDoc219 applies to Maraga because it applies to all inmates with chronic hepatitis C and nowhere does it require an active infection.

[00:30:57] Speaker 02:
As defendant Richard's grievance response states, individuals are not enrolled in the chronic care clinic unless a positive hepatitis C diagnosis is confirmed.

[00:31:10] Speaker 02:
And second, to the extent that this court is unsatisfied with the record.

[00:31:14] Speaker 03:
But didn't he get enrolled in clinic because Mr Moraga asked to?

[00:31:18] Speaker 03:
I thought your whole position is that he was never tested until February of 2022.

[00:31:24] Speaker 03:
And so he was just enrolled because he asked to be enrolled.

[00:31:28] Speaker 02:
And I know where it is the record state that he was enrolled because he asked.

[00:31:32] Speaker 03:
Well where does it show that he had hepatitis C other than his reactive test exhibit a SMR 61 190.

[00:31:42] Speaker 03:
November 26, 2022.

[00:31:43] Speaker 02:
We would point this point to the grievance responses by Defendant Meneve and Defendant Richard where they stated.

[00:31:49] Speaker 02:
Right.

[00:31:49] Speaker 03:
So there's nothing in the record then showing that he had chronic hepatitis C then.

[00:31:55] Speaker 02:
We can reasonably infer from the grievance responses that he had.

[00:31:58] Speaker 03:
Okay.

[00:31:58] Speaker 03:
Let's go through the grievance responses and I'd like you to respond to your opposing counsel's argument.

[00:32:04] Speaker 03:
So with regard to Nurse Ramber, she has no authority to order hep C treatment.

[00:32:10] Speaker 03:
She has not seen or treated or met with Mr. Moraga.

[00:32:15] Speaker 03:
She's just reviewing the grievance.

[00:32:17] Speaker 03:
She's not his care provider.

[00:32:18] Speaker 03:
And she says, you have an upcoming medical appointment with the provider.

[00:32:22] Speaker 03:
Please discuss your hepatitis C status at that appointment.

[00:32:28] Speaker 02:
Yes, absolutely.

[00:32:29] Speaker 03:
And she has no authority to order any hep C treatment.

[00:32:33] Speaker 03:
And she's not his care provider.

[00:32:35] Speaker 02:
Yes, this court has never required the finding of personal participation to require the individual, the defendant to have personally treated

[00:32:47] Speaker 02:
the inmate.

[00:32:48] Speaker 02:
For example, in Snow v. McDaniel, this court found that the warden and associate warden were liable for deliberate indifference.

[00:32:57] Speaker 03:
Okay, but you do need to prove that this nurse was on notice that Mr. Moraga was not being monitored by the chronic care clinic in accordance with MD 219, don't you?

[00:33:09] Speaker 03:
You have to show that they were on notice that he was not being treated in compliance with

[00:33:16] Speaker 03:
Yes.

[00:33:17] Speaker 03:
And how do you do that?

[00:33:20] Speaker 02:
In Def.

[00:33:21] Speaker 02:
Menev's grievance reviewed by Def.

[00:33:26] Speaker 02:
Rambo, he stated that he was not being treated for hepatitis C as far back as his first grievance, first request for treatment in November of 2020.

[00:33:37] Speaker 02:
And one can reasonably infer based on the summary judgment standard that this would put Def.

[00:33:43] Speaker 02:
Rambo on notice.

[00:33:44] Speaker 02:
Okay, let's go to Richard.

[00:33:47] Speaker 03:
You are enrolled in chronic care clinic and have been monitored regularly for hepatitis C treatment.

[00:33:52] Speaker 03:
You were last seen in the chronic care clinic on February 18, 2021.

[00:33:57] Speaker 03:
You do not currently qualify for hepatitis C treatment consideration based on the above criteria and it goes through all the APRI scores.

[00:34:07] Speaker 03:
You have been seeing regulated monitor hepatitis infection.

[00:34:10] Speaker 03:
The medical directive has been followed and I can go through.

[00:34:13] Speaker 03:
She goes specifically through hepatitis 2 19 and.

[00:34:18] Speaker 03:
It goes through all of the requirements that Mr Moraga does not meet.

[00:34:28] Speaker 03:
I guess I'm unclear based on this.

[00:34:32] Speaker 03:
How, yeah, how Nurse Richard is on notice that the care clinic who is providing the monitoring and treatment is not doing its job.

[00:34:43] Speaker 02:
The care clinic did not provide Moraga with monitoring, and we can infer that based on the grievance he provided to Nurse Richard, and she falsely stated that he was being monitored and did not meet the criteria.

[00:34:55] Speaker 02:
The record only indicates one APRI score that was ever obtained for Moraga, and that was in February of 2022, over a year after his grievances.

[00:35:06] Speaker 02:
There is no evidence

[00:35:08] Speaker 02:
that defendants have submitted in the record that he did not actually qualify for this advanced treatment.

[00:35:15] Speaker 03:
You know, if I look at the original complaint, Mr. Moraga said, I am entitled to immediate treatment for my hep C condition.

[00:35:23] Speaker 03:
You have sort of changed your argument solely to monitoring.

[00:35:28] Speaker 03:
That's not really the argument that was really made in your briefing.

[00:35:33] Speaker 03:
And it was more he was denied treatment.

[00:35:36] Speaker 03:
And that's also what Mr. Moraga's complaints mostly have been about is that he thought he was entitled to Hep C treatment.

[00:35:46] Speaker 03:
And it was denial of his treatment, delay of his treatment that caused the gallbladder issues.

[00:35:54] Speaker 03:
Wouldn't you say that's really been more what his argument has been and now it's kind of been morphing into a monitoring argument, correct?

[00:36:01] Speaker 02:
No, Your Honor.

[00:36:02] Speaker 02:
So at ER 215 in Moraga's first amended complaint, he states that I have never been seen on regular monitoring for my hep C. And again, I have never had any medical treatment for hepatitis C. So liberally construing his pleadings based on his status as a per se plaintiff in accordance with this court's holding in Thomas V. Ponder, he did- But even if you- Let's look at his grievances.

[00:36:26] Speaker 03:
On November 22, 2020, I requested to start the hep C treatment.

[00:36:31] Speaker 03:
As of today's date, I have not received an answer.

[00:36:34] Speaker 03:
But anyway, let me go ahead and let you finish.

[00:36:36] Speaker 02:
I see that my time has expired.

[00:36:38] Speaker 02:
May I briefly conclude?

[00:36:39] Speaker 03:
Yes, very briefly.

[00:36:41] Speaker 02:
Yes.

[00:36:42] Speaker 02:
Defendants Menev, we can reasonably avoid that.

[00:36:44] Speaker 02:
Defendants Menev, Richard, and Rambo had knowledge based on their grievance responses.

[00:36:49] Speaker 02:
And for these foregoing reasons, we respectfully request that this court

[00:36:52] Speaker 02:
grant Moraga's motion to supplement the record and judicial notice, deny defendant's motion to supplement the record, reverse on Moraga's Eighth Amendment claim, and remand on the issue of qualified immunity.

[00:37:04] Speaker 02:
Thank you very much.

[00:37:05] Speaker 03:
Thank you very much.