[00:00:00] Speaker 03: Good morning, Your Honours. [00:00:01] Speaker 03: It may please the court. [00:00:02] Speaker 03: Thomas Sines on behalf of the appellant, Mr. Puckett. [00:00:05] Speaker 03: I'd like to reserve five minutes for my co-counsel's rebuttal and I'll keep an eye on the clock. [00:00:10] Speaker 00: And are you all, you're not splitting issues, right? [00:00:12] Speaker 00: You're both going to cover everything? [00:00:13] Speaker 00: Yes, Your Honour. [00:00:13] Speaker 00: Okay, thank you. [00:00:14] Speaker 00: Go ahead, please. [00:00:15] Speaker 03: This case is about a violent cell extraction committed by the defendants against Mr. Puckett, a pro se incarcerated litigant with a history of severe mental illness. [00:00:25] Speaker 03: At the heart of this appeal are three errors committed by the district court that we believe each independently warrant remand and reversal. [00:00:32] Speaker 03: First, the district court's refusal to allow four of Mr. Puckett's key witnesses from testifying at trial. [00:00:38] Speaker 03: Second, the court's denial of voluntary counsel for Mr. Puckett. [00:00:42] Speaker 03: And third, the court's dismissal of three viable claims at PLRA screening and summary judgment. [00:00:48] Speaker 03: I'd like to focus the majority of my time on the issues of witnesses and the right to counsel. [00:00:52] Speaker 03: But if your honors have any questions about the dismissed claims, I'm happy to address those as well. [00:00:57] Speaker 05: I guess I'd like to start at the end there. [00:01:02] Speaker 05: So the district court screened out the retaliation claim. [00:01:08] Speaker 05: And then when it went to summary judgment, the failure to protect claim, which appears [00:01:16] Speaker 05: by the record to rely on the same facts was granted summary judgment on that after failure of the plaintiff to oppose. [00:01:32] Speaker 05: Good would it do if we find that there was no genuine issue of material fact on the failure to protect claim to find error in the screening out of the retaliation claim, since the plaintiff didn't add anything else to the record other than his own verified complaint? [00:01:52] Speaker 03: Your Honor, we believe that the First Amendment retaliation claim would go to different elements. [00:01:56] Speaker 03: It's established by this court in Rhodes versus Robinson. [00:01:59] Speaker 03: It would allow Mr. Puckett [00:02:01] Speaker 03: further expand the record with respect to his protected conduct and filing a grievance? [00:02:06] Speaker 03: But what facts? [00:02:09] Speaker 05: What facts are we missing here in terms of it involved Ms. [00:02:13] Speaker 05: Lynch showing his record, allegedly showing his record to other inmates? [00:02:20] Speaker 05: So that is the core of both claims, right? [00:02:25] Speaker 03: Yes, Your Honor. [00:02:25] Speaker 03: They do rely on the same facts, but we believe that the issue here is that [00:02:29] Speaker 03: the PLRA screening standard allows for a much more liberal interpretation. [00:02:32] Speaker 05: Well, sure, but once they rely on the same facts, and if there's no genuine issue of material fact as to the failure to protect claim, why would there be a genuine issue of material fact or any claim that can move forward on the retaliation? [00:02:52] Speaker 03: Your Honor, while we do understand that if we understood Mr. Puckett's [00:02:57] Speaker 03: failure to protect claim to be properly dismissed at summary judgment, then yes, I would contend that your argument would make sense. [00:03:05] Speaker 03: But the issue here is that the district court improperly found summary judgment on Mr. Puckett's failure to protect claim by failing to consider his verified complaint as an affidavit that would present a genuine issue of material fact. [00:03:17] Speaker 05: What else was there beyond, I might ask [00:03:21] Speaker 05: ask your friend for why you might concede that, because I think it is maybe a trickier question, and we see that of necessity is a screened claim that depends on the same facts as a summary judgment claim, what we do there, whether it's harmless error or whatever. [00:03:37] Speaker 05: But as to the question of whether there's a genuine issue of material fact, the district court wasn't working with anything other than his verified complaint. [00:03:47] Speaker 05: Were there any third-party declarations [00:03:51] Speaker 05: that moved this issue forward? [00:03:54] Speaker 03: With respect to the failure to protect, the majority of Mr. Puckett's claim relied on his verified complaint. [00:04:00] Speaker 05: Well, does the minority of his claim rely on any other evidence other than his say so? [00:04:07] Speaker 03: To clarify, Your Honor, the entirety of the claim relies on his verified complaint. [00:04:11] Speaker 05: And he didn't oppose summary judgment, and so the district court is just left with his own statement on both the retaliation and failure to protect. [00:04:20] Speaker 03: Yes, your honor, but we believe that this court has established that verified complaints can serve as an affidavit and do did present a genuine dispute of material fact. [00:04:28] Speaker 03: It's unclear on the record whether or not any third party saw or heard the specific interaction that defendant or that unclear. [00:04:37] Speaker 05: It's just not established at all that any third party did. [00:04:40] Speaker 05: It's only his speculation. [00:04:42] Speaker 03: With your respect, since it is a verified complaint, Your Honor, it serves the way of an affidavit. [00:04:47] Speaker 00: But it can only serve as an affidavit if it's based on personal knowledge and specific facts. [00:04:52] Speaker 00: And even Mr. Puckett doesn't say that he actually saw Nurse Lynch showing his conviction documents to other inmates. [00:05:03] Speaker 03: Your Honor. [00:05:03] Speaker 00: All speculation on his part, right? [00:05:05] Speaker 00: What in there in his affidavit is actual personal knowledge that Nurse Lynch showed his conviction documents [00:05:13] Speaker 00: and told other inmates about his convictions. [00:05:17] Speaker 03: On page 384 of the record, Your Honor, Mr. Puckett begins by alleging that defendant Lynch came to his door on or about five days later after finding out about me finding Mr. Puckett trying to file an emergency 602 and showed his objective judgment to the inmates in the tier. [00:05:37] Speaker 03: This shows that there was clear [00:05:39] Speaker 03: a clear conversation and clear facts that were established in the record below. [00:05:44] Speaker 03: And I would also like to point out, Your Honor, that on page 383 of the record, the form that Mr. Puckett submitted his complaint with, presented or notified him that he would just submit the facts and would not make any legal arguments whatsoever. [00:06:00] Speaker 03: So we believe that here, this shows that there was clear factual basis for Mr. Puckett to establish a genuine dispute of material [00:06:07] Speaker 03: that should not have been ignored by the court at summary judgment. [00:06:11] Speaker 05: So the genuine dispute is, Ms. [00:06:16] Speaker 05: Lynch categorically denies this in her declaration at summary judgment. [00:06:20] Speaker 05: And against that, we have the complaint where Mr. Puckett says that she showed my abstractive judgment to inmates on the tier. [00:06:29] Speaker 05: That's the dispute. [00:06:32] Speaker 03: Yes, your honor. [00:06:32] Speaker 03: And with respect to Mr. Puckett's First Amendment retaliation claim, we think that the difference here is showing that because Mr. Puckett, as a result of Ms. [00:06:42] Speaker 03: Lynch disclosing those allegations, the threats of violence and bodily harm that were inflicted on Mr. Puckett, that goes to a completely factual different narrative and different claims on the First Amendment claim than it would for the failure to protect. [00:06:55] Speaker 05: And whether he was subjected to threats would have been based on his personal experience. [00:07:02] Speaker 05: Yes, sir. [00:07:03] Speaker 05: And that those threats he alleges in the complaint and is verified, so it serves as an affidavit to establish. [00:07:09] Speaker 05: a record on summary judgment that those threats were the result of Ms. [00:07:16] Speaker 05: Lynch's showing his offenses. [00:07:22] Speaker 05: Going back to the issues you'd hope to present at the top, on the calling witnesses, you urge a due process analysis. [00:07:36] Speaker 05: What kind of [00:07:37] Speaker 05: Liberty interest is an issue. [00:07:40] Speaker 05: What's the right that triggers the Matthews v. Eldridge balancing test from calling witnesses? [00:07:50] Speaker 05: I wasn't able to see where we would get that idea that that's a due process interest. [00:07:57] Speaker 03: Your Honor, we believe that this comes from this court's precedent in Barnett v. Norman, which establishes that the right to call witnesses is a fundamental right. [00:08:05] Speaker 03: and especially should be afforded for pro se incarcerated litigants such as Mr. Puckett. [00:08:10] Speaker 03: Considering the informational asymmetries that were present in this case and the fact that Mr. Puckett was precluded from accessing the addresses of his inmates solely on his status as an incarcerated individual triggers this analysis that weighs in favour of Mr. Puckett. [00:08:25] Speaker 03: With respect to the Matthews v Eldridge test, Mr. Puckett clearly had an interest in calling his witnesses [00:08:30] Speaker 03: and establishing a factual basis that would dispute the defendant's narrative of the saw extraction in which the district court below recognized was a factual dispute. [00:08:38] Speaker 00: So let me ask you, we can only reverse under an abuse of discretion standard if we think the exclusion more probably than not affected the verdict. [00:08:48] Speaker 00: And we have [00:08:50] Speaker 00: Mr. Puckett's own document saying, I believe my main two witnesses were paroled as my case is 10 years old. [00:08:57] Speaker 00: No witnesses may remember such a non-direct involvement incident. [00:09:02] Speaker 00: He says my witnesses may be gone home or no recollection of incident as they're not a part of suit. [00:09:08] Speaker 00: And then he simultaneously says, you know, [00:09:13] Speaker 00: I, the plaintiff, moved today for a trial date. [00:09:16] Speaker 00: This case has been going on for a long time, eight years plus. [00:09:19] Speaker 00: Summary judgments have been filed to no avail. [00:09:21] Speaker 00: I respectfully request a trial order. [00:09:24] Speaker 00: So he was pushing for a trial date. [00:09:28] Speaker 00: and knowing that his witnesses were not available and may not recall an incident that was so long ago. [00:09:36] Speaker 00: So how can we make that finding that it's more probably than not that these witnesses would have affected the verdict? [00:09:46] Speaker 00: And how should we view the fact that Mr. Puckett was demanding going to trial even though he knew that his witness had gone home or may not recall? [00:09:55] Speaker 03: With respect to the first point, Your Honor, [00:09:57] Speaker 03: We believe that this was clearly established in the trial court in two respects. [00:10:03] Speaker 03: First, on page 21 of the record, the district court clearly established two factual disputes that would be resolved at trial. [00:10:11] Speaker 03: First, whether any of the defendants were malicious and sadistic in their application of force, and second, the extent and severity of the injuries at hand. [00:10:19] Speaker 03: Mr. Puckett's affidavits and the inmates purported to [00:10:22] Speaker 03: create a factual dispute with regards to both factors as they would have shown that Mr. Puckett, the defendants in this case, applied malicious force and created injuries that were far beyond what were presented by the defendants. [00:10:38] Speaker 03: Second, with respect to Mr. Puckett's request for trial, Mr. Puckett continued to request the appointment of counsel up until the month before trial. [00:10:46] Speaker 03: He was determined to have counsel appointed for Mr. Puckett [00:10:49] Speaker 03: given the fact that he established multiple times throughout the record that in previous cases he had issues presenting this case before the court and needed counsel in order to rectify those issues. [00:11:03] Speaker 03: So Mr. Puckett attempted up until the very last minute at the eve of trial to seek counsel. [00:11:08] Speaker 00: So we believe that this... No, but I mean, looking at his own statement filing to the court, he says there's no point in the continuous delay of trial. [00:11:17] Speaker 00: So he wanted to go forward with his trial, even though he knew his witnesses were not available or might not recall the incident. [00:11:24] Speaker 00: So how are we supposed to say, well, that was abuse of discretion, then, to ignore that request of one of the litigants? [00:11:31] Speaker 03: We believe that this, coupled along with the request for counsel, [00:11:35] Speaker 03: and along with Mr. Puckett's presentation of his history of mental illness, created a narrative that showed that even though Mr. Puckett was requesting [00:11:45] Speaker 03: to go to trial at that point. [00:11:47] Speaker 03: He was under the pretense that he may still be appointed counsel to help him assist him, specifically with respect to presenting this case and to locate his witnesses. [00:11:58] Speaker 03: I see that I'm out of time, so quickly to, if your honors have no further questions. [00:12:03] Speaker 03: We ask that this court reverse and remand this case with instructions to appoint counsel, considering this two-factor test on a Woldburn versus Askadarian, to reinstate the dismissed claims [00:12:13] Speaker 03: and to... I have one last question. [00:12:16] Speaker 00: You can see that if Mr. Puckett's witnesses were not incarcerated, the defendants in the district court wouldn't have any obligation to locate those witnesses, correct? [00:12:25] Speaker 00: Your Honor, while they... Even if Mr. Puckett was pro se? [00:12:27] Speaker 03: While they wouldn't have the obligation, they would still have the requirement of using the traditional subpoena powers to locate or to compel those witnesses to appear before the court. [00:12:37] Speaker 03: We believe that two factors should have been addressed by this court. [00:12:39] Speaker 00: But who would have found those witnesses addresses to fill out the subpoena? [00:12:44] Speaker 00: Your honor who is responsible to do that for witnesses who are not incarcerated? [00:12:49] Speaker 03: Mr.. Puckett had a form that he could have filled out and mr. Puckett would have presented to the court that he was no longer able to locate these witnesses due to his incarcerated and pro se status and at that point the district court should have intervened and assisted in locating those witnesses using the traditional subpoena powers The district courts anyway, that's fine. [00:13:08] Speaker 00: Thank you [00:13:38] Speaker 02: Good morning, Your Honors. [00:13:39] Speaker 02: My name is Deputy Attorney General Jamil Ghanem, and I have the honor and privilege of representing the appellees, Balawan, Lynch, Dyson, Yalow, Varar, Bellar, and Nurse Luis, both in the trial court at trial and also on this appeal. [00:13:56] Speaker 02: And here, Mr. Puckett's contentions on appeal are that the district court abused its discretion. [00:14:02] Speaker 02: But in order to show an abuse of discretion, it needs to show that the district courts [00:14:07] Speaker 02: decision was either illogical, implausible, or without support in inferences that may be drawn from the facts in the record. [00:14:15] Speaker 02: And here, there's plenty of evidence in the record to support the district court's decisions with respect to his request, denying his request for counsel, as well as his [00:14:24] Speaker 05: request for the attendance of various incarcerated witnesses. [00:14:38] Speaker 05: working backwards, why doesn't the verified complaint act as an affidavit based on his personal witnessing of Ms. [00:14:50] Speaker 05: Lynch showing his offenses around the tear to contradict her declaration? [00:14:58] Speaker 02: Not just because Mr. Puckett signs, I declare under penalty of perjury that the foregoing is true and correct on his complaint doesn't necessarily mean every single statement in his complaint is admissible evidence, right? [00:15:12] Speaker 05: Because he, you know, I can declare- Okay, but just the parts that he's, um, [00:15:18] Speaker 05: to under penalty of perjury based on what he's seen and it seems like his complaint says that he saw Ms. [00:15:25] Speaker 05: Lynch show his defenses around. [00:15:30] Speaker 02: And that's where we would disagree. [00:15:33] Speaker 02: You know, his complaint does say, oh, Ms. [00:15:35] Speaker 02: Lynch came to my door and she talked to me and he says, and then he goes on to say she showed this, she showed that, but he doesn't really indicate, you know, [00:15:44] Speaker 02: what documents that she had in her hand, that he ever saw these documents, that he ever saw Ms. [00:15:50] Speaker 02: Lynch showing those documents to other people. [00:15:53] Speaker 02: How many could have seen it if he's in his cell? [00:15:55] Speaker 05: Well, he quotes Ms. [00:15:56] Speaker 05: Lynch. [00:15:56] Speaker 05: Quote, unquote, three counts of rape by force, kidnapping. [00:15:59] Speaker 05: There's quotes around that, which suggests that that's something that he heard directly. [00:16:04] Speaker 02: Well, I thought that was just him quoting what his criminal history was. [00:16:08] Speaker 05: I guess that's the, but which way with a pro se plaintiff on summary judgment, we're supposed to, I think, cut him some slack. [00:16:19] Speaker 00: And where do you get authority that says, oh, if there is a verified complaint, only some statements are treated as affidavit statements and some are not? [00:16:29] Speaker 00: Because he signs [00:16:30] Speaker 00: his complaint as I declare under penalty of perjury that the foregoing is true and correct. [00:16:36] Speaker 00: He doesn't say certain portions, certain statements. [00:16:40] Speaker 02: Correct. [00:16:40] Speaker 02: My point to that is it's really just the summary judgment standard, right? [00:16:45] Speaker 02: For summary judgment, a tribal dispute has to be based on admissible evidence. [00:16:49] Speaker 02: Just because you sign a document saying various allegations doesn't necessarily mean all of those allegations are made with personal knowledge, that they have foundation, that they're coming from authenticated documents. [00:17:03] Speaker 02: I could sit here and sign something that says, I declare an appellate perjury. [00:17:06] Speaker 02: Well, just the personal. [00:17:06] Speaker 05: Of course, this is all you have from Ms. [00:17:08] Speaker 05: Lynch, too. [00:17:09] Speaker 05: So let's just take the two parts that are purportedly personal knowledge. [00:17:15] Speaker 05: He says, she said this. [00:17:19] Speaker 05: She did this. [00:17:20] Speaker 05: She says she didn't. [00:17:21] Speaker 05: Why isn't that a classical tribal issue? [00:17:25] Speaker 02: Well, because I think the issue with Mr. Puckett's complaint is he goes, you know, that step further and tries to attribute more to what Lynch did. [00:17:36] Speaker 02: You know, because there's no foundation for how he could have seen or observed Ms. [00:17:41] Speaker 02: Lynch showing anything to anybody. [00:17:43] Speaker 05: Is that in the record? [00:17:45] Speaker 05: I mean, I could imagine that there's [00:17:48] Speaker 05: It may be impossibility, right, if he was administratively segregated, but is there anything in the record that would rule out his ability to overhear her or watch her showing this around the tier? [00:18:03] Speaker 02: Well, then that's just it, right? [00:18:04] Speaker 02: There's nothing from Mr. Puckett indicating, you know, how he knows this. [00:18:07] Speaker 02: Oh, I overheard her saying this to somebody, or even though I'm in my cell with one window and I can't see, you know, the whole tier, I can't see the whole hallway, I was able to look this way and see that. [00:18:20] Speaker 02: There's just nothing there. [00:18:21] Speaker 02: It's just, it's kind of a blase allegation. [00:18:23] Speaker 05: Well, is there anything from, so from the state's end, is there anything [00:18:28] Speaker 05: that would rule out his ability to overhear or see this? [00:18:33] Speaker 02: Well, nothing that would rule out his, you know, physical ability to do so, but, you know, speculation. [00:18:39] Speaker 05: But we have to, then we have to read this in the light most favorable to Mr. Pocket. [00:18:43] Speaker 02: Correct, but speculation still cannot raise a tribal dispute. [00:18:46] Speaker 02: And if what he's, you know, our point is what he's saying, there's really no foundation for it because he doesn't, there's nothing demonstrating how he knows or how he observed any of what, you know, he's alleged to do. [00:18:56] Speaker 02: And it goes the same with respect to [00:18:58] Speaker 02: oh, these later things that happened to me, I know they happened to me because of what she did, but there's no evidence of that. [00:19:05] Speaker 00: You know, if you're going to rely on the motion for summary judgment standard, that might address the failure to protect claim, but that doesn't address the retaliation claim that was screened out. [00:19:15] Speaker 00: Sure, and I can address the retaliation claim. [00:19:18] Speaker 00: At screening, why shouldn't this affidavit, this verified complaint, be sufficient? [00:19:24] Speaker 02: Sure, and at screening, it again goes to the causation element, right, because even a complaint needs more than the, you know, defendant unlawfully harmed me accusation. [00:19:35] Speaker 02: There needs to be something, you know, taking it from the realm of possibility to plausibility, right? [00:19:42] Speaker 05: Well, I mean, so in a retaliation, she learned that I'd filed a grievance, and then she did this. [00:19:50] Speaker 05: And the thing that she did is not something [00:19:53] Speaker 05: that we would generally consider to be within the realm of her general duties. [00:20:00] Speaker 02: With the PLA screening and retaliation claim, even assuming as true what he's alleged, there's still nothing tying what Lynch does at [00:20:11] Speaker 02: the Department of State Hospitals in Vacaville at one point in time to whatever other later events by unidentified people at unidentified times, what they're doing and that what they're doing is because of what she did. [00:20:24] Speaker 02: There's no, there isn't even an allegation kind of tying the two together. [00:20:28] Speaker 02: I know the guy tried to stab me because when he stabbed me, he said, ah, for Lynch, right? [00:20:32] Speaker 02: There's nothing there. [00:20:33] Speaker 02: It's just maybe something happened later on, but how do we know [00:20:36] Speaker 02: that that has anything to do with what happened with another person at another facility at a completely different time. [00:20:41] Speaker 02: He doesn't even allege that. [00:20:43] Speaker 02: He just says, you know, she showed all my stuff on the tier and then five weeks later or five weeks later I'm being threatened by unidentified inmates. [00:20:51] Speaker 02: He doesn't say who, doesn't say when, doesn't say anything with the attack. [00:20:54] Speaker 02: He doesn't say who or when. [00:20:56] Speaker 05: But it is, I mean, there are several claims here and this appears to be kind of one [00:21:05] Speaker 05: cohesive count. [00:21:08] Speaker 05: Do you have anything to help us with this question of let's assume that it was unopposed, so we went into summary judgment on the same, assume it's the same facts for failure to protect and retaliation, and he doesn't oppose, and the district court grants summary judgment on the facts underlying the failure to protect. [00:21:29] Speaker 05: but has already screened out the retaliation. [00:21:31] Speaker 05: If we find that he's met the pleading standard, the lower pleading standard for the retaliation claim, what do we do with the fact that he doesn't come forward with facts on the summary judgment? [00:21:48] Speaker 05: They seem logically inconsistent, but I don't see an argument from you that suggests that there's somehow backwards law of the case or something going on here that would allow us [00:21:58] Speaker 02: to that would require us to treat those together. [00:22:16] Speaker 02: is kind of happening here is they're taking kind of a second bite at the apple and saying, oh, we want to take these other things and morph it into another claim. [00:22:24] Speaker 05: But it's one the district court gave by screening out a claim premised on the same facts that also went to summary judgment. [00:22:31] Speaker 02: And the district court's screening of the retaliation claim was focused more on the cell extraction incident. [00:22:39] Speaker 02: that, oh, there's nothing indicating that what happened at the conclusion of the cell extraction, the excessive force, that that was the product of retaliation. [00:22:47] Speaker 02: So I think that's what the district court screening order on retaliation was. [00:22:51] Speaker 00: But... So you're saying there was no district court ruling on the retaliation as to Ms. [00:22:56] Speaker 00: Lynch and the grievance, and they're showing the abstractive judgment of the inmates? [00:23:00] Speaker 02: It screened it to find a failure to protect claim. [00:23:03] Speaker 02: And so to construe those same allegations to just make up another claim now on appeal, when he's already had the opportunity to litigate it, it's redundancy. [00:23:16] Speaker 02: It's inefficient. [00:23:16] Speaker 02: If Mr. Puckett had more allegations and more to argue and more to put in there about a retaliation claim, or even more with respect to defendant Lynch in particular, he's always free to file a motion to amend his complaint, to add new allegations. [00:23:32] Speaker 02: you know, several procedural devices you could have employed. [00:23:35] Speaker 00: I guess, just to follow up with Judge Johnstone's point, what is the state of the evidence if we're looking at the retaliation claim? [00:23:42] Speaker 00: Is it the state of the evidence that existed at the time of the screening, or is it the state of the evidence at the time of judgment? [00:23:49] Speaker 00: And can we consider basically the evidence at summary judgment? [00:23:54] Speaker 02: I think for the retaliation claim, it would still just be looking at the state of the evidence from the screening. [00:24:01] Speaker 00: But then again, like we put in our papers and like we have here, you know, even though we're reviewing the judgment, which would include all of the subsequent rulings and evidence. [00:24:13] Speaker 02: As to the PLRA screening, well, yeah, because the District Court, or sorry, the Court of Appeal, I mean, you have the whole judgment, right? [00:24:21] Speaker 02: So you can look at everything in the record in making that determination. [00:24:25] Speaker 02: But with respect to Mr. Puckett's retaliation claim, there was still nothing pushing that, pushing over the line of plausibility with respect to Lynch or tying the actions of any subsequent actor [00:24:38] Speaker 02: because of respondent lynch. [00:24:40] Speaker 02: There's no allegation there to do it, and that's why. [00:24:42] Speaker 05: So we'd be, it sounds like we'd do something like look at the record on summary judgment, but under the standard for pleading a claim? [00:24:54] Speaker 02: No, I don't think you would look at the additional evidence. [00:24:56] Speaker 02: I'm talking about just strictly, you know, on the allegations, the face of his complaint, the allegations of his complaint. [00:25:01] Speaker 05: And it's the same evidence at both stages, because there's nothing new on summary judgment. [00:25:04] Speaker 02: Yeah, he didn't submit anything additional. [00:25:06] Speaker 02: the complaint itself, you know, fails to state a valid retaliation claim because of the causation that is, you know, so insufficient and lacking from his allegations. [00:25:19] Speaker 00: So I am looking at the district court's [00:25:26] Speaker 00: screening order and it says the only mention of possible retaliatory conduct in the complaint is that plaintiff alleges the defendants attacked him in retaliation for biting one of them and making them do paperwork. [00:25:37] Speaker 00: So you're saying at that point it was [00:25:40] Speaker 00: Mr. Puckett was not even raising this retaliation claim based on... That's correct. [00:25:48] Speaker 02: It's being asserted now on appeal that he has some retaliation claim against Lynch that was improperly screened out. [00:25:54] Speaker 02: But when the court looked at the retaliation claim, they were thinking of retaliation in the context of him being the allegations of excessive force, which now we've gone through trial and he was not subjected to excessive force at all. [00:26:08] Speaker 05: Why isn't the delay in treatment sufficient to... [00:26:16] Speaker 05: be medical indifference. [00:26:20] Speaker 02: Yes, as to Nurse Lewis, right, so we have the incident where there's the alleged excessive force and Mr. Pluckett claims, oh, after the incident I had a bloody lip, a bloody nose and these facial injuries and he is seen by the nurse. [00:26:32] Speaker 02: There's no dispute that he's seen and evaluated by the nurse. [00:26:35] Speaker 02: The nurse sees him from, according to her testimony, head to toe. [00:26:40] Speaker 02: And at summary judgment, she kind of said the same thing in her declaration. [00:26:44] Speaker 02: And in her medical report, she examined him and only found him to have one particular, one minor issue. [00:26:50] Speaker 02: Then she says, I wrote it down, I noted it, and I notified the physician. [00:26:55] Speaker 02: So for Mr. Puckett and his dispute, it's at best, I have a bloody nose. [00:27:05] Speaker 02: No, you don't. [00:27:06] Speaker 02: That's, you misdiagnosed me, that's medical negligence. [00:27:10] Speaker 02: We're not even close to the threshold of deliberate indifference. [00:27:13] Speaker 02: There's no facts or evidence that she drew the inference of a substantial risk of harm to him and then completely disregarded it. [00:27:22] Speaker 02: He's just saying, I had something and she completely missed it, which is a misdiagnosis or medical negligence at best. [00:27:31] Speaker 02: And then if we carry that all the way through trial evidence at trial, and the jury found that he wasn't even subjected to excessive force, so whether he had those injuries or not is never even established. [00:27:46] Speaker 02: But as to Nurse Lewis, I mean, [00:27:50] Speaker 02: In order to have delivered indifference with her course of treatment of evaluating him and assessing him and notifying the doctor, there has to be something showing that what she did was completely medically unacceptable under the circumstances. [00:28:03] Speaker 02: And evaluating him, assessing him, and notifying the doctor, there's no evidence that that was medically unacceptable under the circumstances. [00:28:11] Speaker 02: And the contention that I had these injuries and she completely botched it and missed it is at best [00:28:17] Speaker 02: an allegation of a misdiagnosis or medical negligence, it does not approach the threshold of deliberate indifference. [00:28:25] Speaker 02: And I apologize, I think I might have gone over my time. [00:28:27] Speaker 00: Okay, thank you. [00:28:30] Speaker 02: Thank you, Your Honors. [00:28:42] Speaker 01: Good morning, Your Honors. [00:28:43] Speaker 01: Joseph Moskovich, appearing for the appellee [00:28:46] Speaker 01: The only two issues that concern my client have to do with the denial of counsel and the rulings regarding Mr. Puckett's efforts to have incarcerated witnesses appear for trial. [00:29:08] Speaker 01: As has been commented on so far this morning, the abuse of discretion standard applies [00:29:15] Speaker 01: And if you look at all of the orders in total that the magistrates and the district court judge issued below, they clearly set forth the controlling law on each of these issues. [00:29:29] Speaker 01: And the rulings that they made are grounded in. [00:29:33] Speaker 00: How should we view the fact that the defendant's witness list had the same witnesses, Burton, Dixon, Torres, and Terrell, that the district court excluded Mr. Puckett from calling? [00:29:56] Speaker 01: The only reason that the district court excluded those witnesses was that Mr. Puckett had not complied with the procedures that were clearly laid out for having the court issue a writ of habeas corpus, I'm sorry, I'm blowing the Latin term, but to have those incarcerated witnesses appear for trial. [00:30:22] Speaker 00: But if they were already on the defendant's witness list, why not allow them to testify? [00:30:31] Speaker 01: Well, again, it wasn't a question at that point of whether the witnesses could testify and, in fact, had personal knowledge. [00:30:44] Speaker 01: And that's, in fact, relatively common for a defense attorney to list witnesses that the plaintiff intends to call [00:30:52] Speaker 01: just as a safeguard. [00:30:54] Speaker 01: But in this particular case, again, Mr. Puckett did not fulfill the carefully explained standards and guidelines for having the court arrange for the appearance of these witnesses at trial. [00:31:13] Speaker 01: So, and also with respect to the appointment of counsel issue, again, the law is very clear on this. [00:31:20] Speaker 01: You have to have exceptional circumstances. [00:31:24] Speaker 05: What else would be needed to show exceptional circumstances here? [00:31:28] Speaker 05: He's having trouble getting the witnesses. [00:31:30] Speaker 05: Of course, this becomes on the basis of the grant of summary judgment against him. [00:31:34] Speaker 05: He is being moved around. [00:31:38] Speaker 05: I don't know how many different institutions he's moved around to while he's trying to litigate this case. [00:31:45] Speaker 05: What's missing from this that the other exceptional circumstances cases have? [00:31:49] Speaker 01: I think what's missing, Your Honor, is some indication [00:31:53] Speaker 01: that the issues in the case were more complex than the usual run of the mill. [00:32:00] Speaker 01: prisoner litigation or pro-cite litigation. [00:32:03] Speaker 01: I mean, this is essentially just a tort case. [00:32:06] Speaker 01: It's not a case that involves technical questions of law. [00:32:13] Speaker 05: Well, I guess this may take you away from the claims against your client. [00:32:20] Speaker 05: But we've just had quite an extensive colloquy with your friend about [00:32:26] Speaker 05: what the district court, what claims the district court was screening, how that impacts summary judgment. [00:32:35] Speaker 05: It does seem like the absence of an opposition at summary judgment, again, maybe on the failure to, or on the retaliation claim, confused the record in a way that counsel might have helped with at the time. [00:32:51] Speaker 01: Again, Your Honor, I don't think that's a circumstance that rises to an exceptional level to the point where the court needs to appoint counsel to represent a pro se litigant. [00:33:05] Speaker 01: I would also, again, going back to I believe it's a point that Judge Coe made earlier, the last time that Mr. Puckett moved for an appointment of counsel was shortly before trial, and his application or his motion made clear [00:33:22] Speaker 01: that at that point he didn't want the trial to be delayed. [00:33:25] Speaker 01: He didn't want to cause any delay. [00:33:29] Speaker 01: And at that point, appointment of counsel would have certainly caused delay. [00:33:34] Speaker 05: Are we limited to, what are we reviewing? [00:33:37] Speaker 05: Are you asserting that we're limited to only reviewing the final request in denial of counsel? [00:33:41] Speaker 01: That's not my argument, but again, throughout the [00:33:48] Speaker 01: you know, from one motion to the next that he filed through the course of this case that was obviously pending quite a while. [00:33:55] Speaker 01: He repeatedly went back to the same issues, talking about his mental condition. [00:34:03] Speaker 01: You know, that was the main thing, talking about his lack of access to, you know, legal materials. [00:34:09] Speaker 01: Basically, he was talking about matters that are inherent in pro se status, especially for [00:34:16] Speaker 01: an incarcerated prisoner. [00:34:18] Speaker 01: He wasn't raising these additional issues about the complexity of the issues. [00:34:23] Speaker 01: He essentially said, I would be better able to articulate my arguments if I had counsel. [00:34:31] Speaker 01: But again, that's always going to be true for a pro se litigant. [00:34:38] Speaker 01: I've exceeded my time, so unless the court has any additional questions for me, I'll submit. [00:34:44] Speaker 00: Thank you. [00:34:59] Speaker 00: morning may I please the court Paul Rock for appellant pocket I just want to quickly address you know I want to talk about the the retaliation yes so I went back and looked at the complaint so the statement of claim [00:35:14] Speaker 00: ER 383 is only talking about the cell extraction and the being punched after he bit Mr. Agboli, and that as a result of the attacks on him from the cell extraction incident, he feels homicidal, he hears voices, and then he says the nurse Luis didn't lie in a cover-up misconduct, [00:35:43] Speaker 00: Several John and Jane Doe's watching misconduct, cheering it on, failing to protect me or intervene. [00:35:49] Speaker 00: So it's failing to protect me during the attack from the cell extraction. [00:35:54] Speaker 00: Even while I screamed for help for 11 days, they denied medical care. [00:35:59] Speaker 00: To this day, I can't properly see out of my right eye. [00:36:02] Speaker 00: So that is what he states is his claim. [00:36:05] Speaker 00: And then the next section is the relief. [00:36:07] Speaker 00: It says, what specific relief do you want? [00:36:10] Speaker 00: And in it, that's when he says, Miss Lynch showed my abstract of judgment to inmates on the tier. [00:36:16] Speaker 00: And he says, my group that I run with told me when I'm not EOP, I have to go into protective custody. [00:36:25] Speaker 00: But CDCR won't let me go from general population mainline to public protective custody sensitive inmate. [00:36:35] Speaker 00: So the Lynch abstract of judgment allegation has to do with his request for protective custody. [00:36:45] Speaker 00: It I also looking at this as a district judge wouldn't have known that he's making a retaliation claim against. [00:36:55] Speaker 00: Miss Lynch he doesn't even say in this section anything about she did this to me because I filed a grievance. [00:37:04] Speaker 00: Right? [00:37:05] Speaker 00: I mean, look at page 384. [00:37:07] Speaker 00: And so then when it goes on about, you know, Ms. [00:37:11] Speaker 00: Lynch complained of crucifying pain, but Louise told me, you know, fuck my medical treatment, or words to that effect, and since I'm going to file a complaint. [00:37:19] Speaker 00: The retaliation about any complaint seems more about Nurse Louise. [00:37:24] Speaker 00: He doesn't allege anything about Lynch knowing that there's going to be a complaint or a grievance, or even specify when she allegedly showed the abstract of judgment to inmates on the tier. [00:37:41] Speaker 00: It's not at all tied to any filing of a grievance. [00:37:45] Speaker 00: And he says, you know, I want $2,500 against John and Jane Doe for failure to intervene and protect. [00:37:56] Speaker 00: And that failure to intervene and protect is all talking about the cell extraction attack, because that's the language he uses in the statement of his claim. [00:38:06] Speaker 00: He says, there were Jane and Joan Doe's watching the attack on me. [00:38:10] Speaker 00: They failed to protect me. [00:38:12] Speaker 00: They failed to intervene. [00:38:13] Speaker 00: I want $2,500 on them. [00:38:15] Speaker 00: So I don't even see a retaliation claim here against Lynch. [00:38:20] Speaker 00: Why don't you respond to that? [00:38:22] Speaker 04: Well, first, Your Honor, I just want to point out that the fillable form that Mr. Puckett filed this complaint on instructs pro se litigants not to make legal arguments and just simply to state what occurred. [00:38:34] Speaker 00: Right. [00:38:35] Speaker 00: But he doesn't put anything about Ms. [00:38:37] Speaker 00: Lynch in the statement of his claim. [00:38:39] Speaker 00: He only puts it in the section that states, what is the relief, the specific relief that you want? [00:38:45] Speaker 00: And the relief he wants after talking about Lynch is, I want to go into protective custody. [00:38:50] Speaker 00: I want to be a sensitive inmate versus a general population mainline inmate. [00:38:56] Speaker 00: So how would the district court know that there was a retaliation claim here? [00:38:59] Speaker 04: Well, the district court did read in a retaliation claim. [00:39:03] Speaker 00: Right. [00:39:03] Speaker 00: They said, the only mention of possible retaliatory conduct in the complaint is that plaintiff alleges the defendants attacked him in retaliation for biting one of them and making them do paperwork. [00:39:14] Speaker 00: Because that is what he says. [00:39:16] Speaker 00: They said, under his statement of claim, after the completion of cell extraction, I was attacked. [00:39:22] Speaker 00: One of them stated for biting one of us, making us do paperwork. [00:39:25] Speaker 00: Take this. [00:39:26] Speaker 00: Or words to that effect. [00:39:28] Speaker 04: In the same document Mr. Puckett does talk about after learning about him filing a grievance, Defendant Lynch showed his abstract judgment to inmates on the tier. [00:39:47] Speaker 04: This court in Waddeson has held that a chronology of events is sufficient to infer causation. [00:39:54] Speaker 04: So I think we can infer here, particularly at the liberal screening stage, that Mr. Puckett was alleging that Lynch retaliated against him for filing a grievance. [00:40:07] Speaker 05: The second page where the alleged retaliation claim occurs is on a new sheet of paper that [00:40:16] Speaker 05: appears to be numbered differently, but it is a bit of a puzzle because there's nothing that suggests that which heading ER 384, page 5 of the complaint belongs to. [00:40:32] Speaker 05: It doesn't. [00:40:37] Speaker 05: Well, it just doesn't. [00:40:39] Speaker 04: Lot of mr.. Puckett's filings are difficult to understand and your honor that goes to the Critical need for mr.. Puckett have been represented by a lawyer throughout this pretrial phase The record shows he's deeply severely mentally ill he brought this lawsuit from California medical facility which houses a [00:41:00] Speaker 04: Inmates who cannot survive in the general prison population. [00:41:04] Speaker 04: He was in no shape to Represent himself and the court abuses in discretion. [00:41:09] Speaker 00: It looks like he handwrote the page numbers on the bottom page five page six So it's clear that this is part of the relief section and not the statement of the claim section. [00:41:18] Speaker 04: I See that your honor. [00:41:21] Speaker 04: I think [00:41:22] Speaker 04: I'm not sure Mr. Puckett would have understood that distinction. [00:41:26] Speaker 04: And given that the form simply tells litigants to state what happened without making legal arguments, I think the court should have used its discretion to read this document together as a whole. [00:41:44] Speaker 05: I guess you see our problem, the fact that he's ably represented on appeal. [00:41:55] Speaker 05: doesn't quite get at the situation the district court was in. [00:41:58] Speaker 05: I think Judge Coe's question suggests to me at least that in the frame of mind of the district court, what else were they supposed to do? [00:42:10] Speaker 05: I guess another way of getting at this is even if we assume that there was a claim and we disagree with you on the appointment of counsel, [00:42:19] Speaker 05: What could Mr. Puckett have added between the screening out of the retaliation claim and summary judgment that would have been any different than what he was obliged to add for the failure to protect? [00:42:35] Speaker 04: What new evidence could he have added, Your Honor? [00:42:37] Speaker 05: Yeah. [00:42:38] Speaker 04: Well, I think if he had unified the relief and allegations section, that would have been enough to [00:42:50] Speaker 04: Demonstrate a genuine dispute of fact similar to the failure to protect claim Mr.. Puckett alleged based on personal knowledge that Lynch Showed his abstract of judgment to other inmates in the tier Lynch denied it that is as it would be the same affidavit Which is his complaint? [00:43:07] Speaker 04: Yes, your honor that would be the same there'd be nothing new I don't believe anything new would have been necessary to establish a dispute of fact I [00:43:15] Speaker 05: Where would we look anywhere in the district court record to understand, either from the arguments of the parties or the district court itself, that anyone understood page five to be a statement of claim as opposed to remedy? [00:43:38] Speaker 05: Because arguably the district court didn't, so did the state understand at that, at summary judgment? [00:43:44] Speaker 04: I believe the state did cite, and that would be, if I could find the citation, I apologize. [00:43:54] Speaker 04: In the further excerpts from 17 and 18, I believe the state cites to Mr. Puckett's document. [00:44:03] Speaker 04: I believe that indicates their understanding that this was sort of a unified document. [00:44:10] Speaker 00: No, I guess we're asked, or at least I'm interested in what indicates that anyone, even Mr. Puckett, because after he got this screening order, he never came back and said, oh, excuse me, I'm also making retaliation claim against Nurse Lynch. [00:44:27] Speaker 00: So where in the record, once that gets, you know, whether it gets, it looks like it may not have even gotten screened out because the district court didn't even know that it was being raised. [00:44:36] Speaker 00: No one in that screening order, [00:44:39] Speaker 00: Was 2016 the trial was 2023 so no one of the intervening seven years said excuse me There's still this retaliation claim outstanding pending against nurse Lynch. [00:44:52] Speaker 04: I Certainly don't think mr. Puckett was equipped given his status as a mentally ill pro se litigant to identify that now the district court in its mention of retaliation at screening [00:45:04] Speaker 04: discusses that the only mention of possible protected speech was Mr. Puckett biting. [00:45:10] Speaker 04: the defendants. [00:45:12] Speaker 04: There it didn't identify Mr. Puckett's grievance as protected speech, which it should have. [00:45:21] Speaker 05: But I guess read as a whole, none of the declarations, none of the witnesses, he does not appear on the face of all of the documents that he has submitted to the court at every stage of this case to be attempting to make out [00:45:36] Speaker 05: the retaliation claim that you argue on appeal he brought. [00:45:40] Speaker 05: None of the witnesses, there are no, by the time they get to the witness list, they are all people who are referring back to the declaration, as your friend said, about the extraction. [00:45:51] Speaker 05: Nothing, no attempt to establish any record on a retaliation claim. [00:45:57] Speaker 04: Well, Mr. Puckett himself served as a witness to that claim, and he may not have had other witnesses given that [00:46:04] Speaker 04: central allegation there is that the abstractive judgment placed him at risk of attack by other inmates. [00:46:11] Speaker 04: So Mr. Puckett himself. [00:46:12] Speaker 05: Well, all these people witnessed his extraction and none of them, I mean, was he at the, maybe you can help me here, whether he was at a different facility at the time the alleged retaliation occurred, none of them witnessed Ms. [00:46:27] Speaker 05: Lynch's alleged retaliation? [00:46:30] Speaker 04: Mr. Puckett was transferred numerous times, so it's not clear exactly who was where. [00:46:36] Speaker 04: Mr. Puckett does allege that an attack occurred at CSP Sacramento. [00:46:40] Speaker 05: No, I'm setting that aside. [00:46:41] Speaker 05: The basic problem is we have the, again, this goes to his fear of attack by other inmates, but in taking it at its [00:46:58] Speaker 05: point up the complaint here, five days later, if he was in the same place five days later and he has this long list of witnesses who'd witnessed the extraction but doesn't recur to any of them to witness the alleged retaliation, why isn't the most sensible conclusion that he's not bringing a retaliation claim at all? [00:47:25] Speaker 04: He mentioned the act of retaliation in his verified complaint that is the capacity in which he brought the claim He is he has very little capacity otherwise to represent himself, and I think that [00:47:41] Speaker 04: likely explains the subsequent lack of mention. [00:47:45] Speaker 00: But he got so many declarations from other inmates at the mental health facility where the cell extraction took place. [00:47:54] Speaker 00: But he never got any on this issue of showing the convictions. [00:47:58] Speaker 00: And then he says, word of mouth from that showing of my abstracts of judgment somehow got to another prison in a totally different city in a different location. [00:48:10] Speaker 00: And that's where I got attacked because of that. [00:48:12] Speaker 00: So he could have gotten any other corroboration about this showing of abstracts of judgments, because he got so many declarations already from the same individual. [00:48:26] Speaker 00: And if he's claiming it basically is happening at the same time frame, wouldn't they have witnessed that as well? [00:48:34] Speaker 04: Mr. Puckett failed in many steps of this litigation. [00:48:37] Speaker 04: What he did do is describe a first month retaliation claim in his complaint, and that is what we're evaluating here. [00:48:45] Speaker 05: And yet the district court, in addressing the failure to protect, did treat Ms. [00:48:50] Speaker 05: Lynch's alleged retaliation as an allegation at ER 60, as to defendant Lynch, plaintiff further alleges that she showed my abstractive judgment. [00:48:59] Speaker 05: And so the district court, in the end, did understand it to be a claim that he was bringing, at least at summary judgment. [00:49:05] Speaker 04: Yes, Your Honor. [00:49:08] Speaker 04: Thank you. [00:49:09] Speaker 00: Thank you very much. [00:49:11] Speaker 00: Thank you, all counsel, for the helpful arguments. [00:49:13] Speaker 00: This case is submitted. [00:49:14] Speaker 00: We are adjourned for the day. [00:49:15] Speaker 00: And for our visitors, Judge Johnston and I will do a short Q&A first, and then our law clerks will come and speak with you as well. [00:49:25] Speaker 00: OK, so thank you. [00:49:26] Speaker 00: We are adjourned.