[00:00:00] Speaker 00: Thank you, Madam Clerk. [00:00:01] Speaker 00: Please be seated. [00:00:02] Speaker 00: Good morning, and welcome to the Ninth Circuit Court of Appeals. [00:00:08] Speaker 00: My name is Morgan Christen. [00:00:10] Speaker 00: I'm one of the judges on the circuit court. [00:00:12] Speaker 00: My chambers are in Anchorage, Alaska. [00:00:14] Speaker 00: I'm delighted to be sitting this week with two of my colleagues from the circuit court, Judge Lee, who's on my right. [00:00:20] Speaker 00: His chambers are in Southern California, and Judge Bress, whose chambers are [00:00:24] Speaker 00: right here in San Francisco. [00:00:26] Speaker 00: We have submitted a few cases, and so for the record, I just need to make clear that in case number 24-3453, Herrera Lozano versus Bondi, we will not hear argument. [00:00:40] Speaker 00: The same is true in 24-4029, Garcia Torres versus Bondi, and 24-5816, Ryman versus Town of Los Gatos. [00:00:53] Speaker 00: The first case on the argument calendar is Ratcliffe versus Williams. [00:00:56] Speaker 00: That is 24-1828. [00:00:57] Speaker 00: Counsel, we're ready to hear your argument. [00:01:11] Speaker 04: Good morning. [00:01:11] Speaker 04: My name is Leo Henges. [00:01:12] Speaker 04: I represent the appellants who were the defendants below in this case. [00:01:17] Speaker 04: Thank you for the opportunity to present argument on their behalf this morning. [00:01:21] Speaker 04: I would ask to reserve two minutes for rebuttal. [00:01:23] Speaker 00: You bet. [00:01:23] Speaker 00: Just keep an eye on the clock, please. [00:01:25] Speaker 04: Absolutely. [00:01:26] Speaker 04: This appeal raises four arguments why the district court order denying summary judgment should be reversed and why the case should be remanded and judgment entered on behalf of the defendants. [00:01:36] Speaker 04: First, this is a unique set of factual circumstances and there was no clearly established case law that would have placed a reasonable official on notice of a potential violation. [00:01:45] Speaker 04: Second, the undisputed facts failed to establish the personal participation required as a matter of law for these defendants to be liable under 1983. [00:01:54] Speaker 04: Third, as the plaintiff appellee below, Mr. Ratcliffe failed to meet his burden to establish the existence of a protected liberty interest. [00:02:02] Speaker 04: And fourth, even if there was an established protected liberty interest, there was the circumstances of this case provided Mr. Ratcliffe followed the process that was required under the law. [00:02:12] Speaker 02: So on your list, which was helpful, [00:02:15] Speaker 02: How can we deal with number two on this interlocutory appeal? [00:02:19] Speaker 04: Personal participation? [00:02:20] Speaker 02: Yeah. [00:02:21] Speaker 04: Because there's no factual dispute here. [00:02:23] Speaker 04: This is clearly a question of application of the law, which is appropriate for qualified immunity. [00:02:29] Speaker 02: I mean, I thought the argument was certain people did not participate. [00:02:33] Speaker 02: And the plaintiff is saying those people did participate. [00:02:36] Speaker 02: So isn't that a factual dispute? [00:02:38] Speaker 04: No. [00:02:38] Speaker 04: The facts that are material to that question of law are not in dispute. [00:02:44] Speaker 00: Well, the district court found that they were, sir. [00:02:47] Speaker 04: The district court found that the defendants had the ability to participate and make a recommendation in a classification review. [00:02:53] Speaker 00: You found that there was a dispute of fact, and the record sure looks like there's a dispute of fact about this. [00:02:59] Speaker 04: Then we disagree, Your Honor. [00:03:00] Speaker 04: We feel that's a question of law, whether or not the ability to participate in a classification review and to make a recommendation to the offender management division, who Mr. Ratcliffe in his brief admits made the final decision about where to place him, whether that is sufficient [00:03:17] Speaker 04: conduct participation to establish a legal obligation under 1983. [00:03:20] Speaker 00: So what they're arguing, of course, is that it's not the initial placement but the 30-day reviews that didn't happen. [00:03:29] Speaker 04: Correct. [00:03:29] Speaker 04: But they also admit that the Thunder Management Division classified Mr. Ratcliffe as closed custody when he was returned from Arizona, his proper placement, to Las Vegas to High Desert State Prison to receive vision-saving cornea transplant surgery. [00:03:44] Speaker 04: Once that classification occurred, [00:03:46] Speaker 04: Mr. Ratcliffe was closed custody based on administrative regulation 521 from the Department of Corrections. [00:03:51] Speaker 04: He was required as a closed custody maximum security offender at a medium security facility that is high desert state prison at the time to be housed in administrative segregation. [00:04:03] Speaker 04: There was no discretion on behalf of these [00:04:05] Speaker 00: I think we've got your argument on this. [00:04:07] Speaker 00: It sounds like you've briefed this issue, and I think we have your argument. [00:04:11] Speaker 00: Is there? [00:04:11] Speaker 00: Yeah. [00:04:12] Speaker 02: So what about the clearly established law? [00:04:14] Speaker 02: Why do you think there was not clearly established law here? [00:04:17] Speaker 04: What sets this case apart from all the other precedent that we have, Your Honor, is that here, Mr. Ratcliffe's appropriate classification and custody housing placement was at Core Civics Prison in Arizona. [00:04:30] Speaker 04: We know that there's no protected liberty interest in being housed in a private prison. [00:04:35] Speaker 04: But for his need for emergency medical surgery for a cornea transplant, High Desert State Prison was not an appropriate housing placement for Mr. Ratcliffe. [00:04:45] Speaker 04: That's not in dispute. [00:04:46] Speaker 04: He was always classified as treat and return. [00:04:49] Speaker 04: You're at High Desert long enough to get your medical care, then you will be returned to Arizona, which was your appropriate placement. [00:04:55] Speaker 02: There's a case law that says if you're being held in prison [00:05:02] Speaker 02: in situation that is beyond the ordinary incidents of prison conditions, there has to be some amount of process that goes along with that. [00:05:13] Speaker 02: Are you arguing that there's just sort of an exception for people who have a medical issue? [00:05:19] Speaker 04: Our argument is that there's no case law that would have placed a reasonable official on notice prior to this instance. [00:05:25] Speaker 02: Because of why? [00:05:26] Speaker 02: Because he had the medical issue? [00:05:29] Speaker 04: Because the state had a dual function to serve in this case, Your Honor, we had the safety and security requirement to classify him appropriately and decide where he was appropriate to house, which was in Arizona at Core Civic. [00:05:42] Speaker 04: On the other hand, the state has the obligation to provide for reasonable medical care. [00:05:46] Speaker 04: Here it was a cornea transplant surgery. [00:05:48] Speaker 01: But did they, sorry to interrupt, did they require him to be for medical reasons in that prison for 11 months? [00:05:55] Speaker 01: I mean, was that a medical necessity to be there for 11 months? [00:05:58] Speaker 04: Yes, that's actually alleged by Mr. Ratcliffe. [00:06:01] Speaker 04: I believe in his complaint that his following the cornea transplant surgery, his doctor told him he would need regular follow-ups to make sure that there was no rejection of the transplant. [00:06:11] Speaker 04: So as long as he had the need for... Was that 11 months, though? [00:06:15] Speaker 02: That seems like an awfully long time. [00:06:17] Speaker 02: Yes, Your Honor, and then... 11 months in administrative segregation or just 11 months in Las Vegas? [00:06:22] Speaker 04: 11 months in administrative segregation from November, end of November 2017 to October 31st. [00:06:27] Speaker 02: Where in the record does it talk about why he needed to be housed in essentially solitary confinement for 11 months due to the I issue? [00:06:35] Speaker 04: It was because of his classification status in the case notes that the parties do not dispute that he was classified as closed custody upon his return from Arizona. [00:06:45] Speaker 00: And Administrative Regulation 521 requires that a closed custody... That's contradicted and the District Court found as much in argument that the state had conceded an argument for the District Court that not all prisoners who are housed there for medical purposes have to be kept in administrative segregation. [00:07:01] Speaker 04: That's correct, Your Honor, but not all prisoners that are housed there for medical are inappropriate to classify to house. [00:07:07] Speaker 00: But this is a separate problem. [00:07:08] Speaker 00: This is a separate problem because in response to his grievances, although in this briefing, the state has consistently insisted that he was in administrative segregation solely for a medical reason, it's also clear that in response to the grievances, they indicated, well, and by the way, you have this disciplinary history. [00:07:27] Speaker 00: And what he's alleged is that he was in the very same administrative segregation conditions when he was there for disciplinary reasons as he was when he was in there for non-disciplinary reasons. [00:07:37] Speaker 00: Really no difference at all according to these allegations. [00:07:41] Speaker 04: There was, in fact, a stark difference, Your Honor. [00:07:42] Speaker 04: Mr. Ratcliffe was reclassified and he was transferred to Arizona as his appropriate prisoner. [00:07:46] Speaker 00: I'm not talking about the transfer. [00:07:47] Speaker 00: I'm just talking, forgive me, but within High Desert State Prison. [00:07:51] Speaker 00: I'm just talking about while he was there. [00:07:53] Speaker 04: When he was returned from Core Civic to obtain this medical treatment, he was reclassified as closed custody. [00:07:58] Speaker 00: Not all prisoners who are there, the state has conceded this point, who are there for medical reasons, have to be in solitary confinement. [00:08:06] Speaker 00: And after he was released and he was actually cleared for general population before he went to Arizona and then at the end on October 31st when he was cleared back to general population, he still had medical care that he needed. [00:08:20] Speaker 00: So it doesn't really add up, sir. [00:08:22] Speaker 04: The main difference is that not all offenders who were housed at High Desert State Prison were closed custody. [00:08:27] Speaker 04: offenders who were closed custody would not have been at High Desert State Prison. [00:08:31] Speaker 04: The offenders at High Desert State Prison who needed medical care in the Las Vegas area who were appropriately housed at a medium security facility absolutely would not have been in segregated housing. [00:08:41] Speaker 00: I don't see a universe, sir, in which somebody can be kept for 11 months in solitary confinement or administrative segregation, whichever term you want to use, and not be entitled to 30-day review. [00:08:54] Speaker 04: Respectfully your honor if you review the pursuant to rig 507 just to be clear if you review the complaint and the opposition brief at no point does Mr. Ratcliffe ever alleged that he was denied to your time Denied access to outdoor time that he was in solitary confinement that it was locked down for 23 hours a day He actually does I've reviewed it all very carefully he made he makes those allegations sir and at this point You're not appealing the failure to exhaust [00:09:19] Speaker 04: You know we have taken a lot of your time, but you wanted to save two minutes, so so I Want to understand more specifically where you think the lack of clearly established law is here in in relation to this case It's the but for causation your honor that but for the obligation of the prison facility to provide medical care with a [00:09:43] Speaker 04: Cornea transplant surgeon who was physically located in Las Vegas, everyone agrees Mr. Radcliffe was appropriately classified to house in Arizona. [00:09:50] Speaker 04: There's no case where the offender claims that they were denied due process because of a placement that was not where they were actually appropriately classified to house. [00:09:59] Speaker 04: Brown v. Oregon Department of Corrections, which the district court said was potentially closely related, that offender was in the DSU in Oregon as his appropriate placement. [00:10:09] Speaker 04: It's not that he would have been classified somewhere else but for medical. [00:10:14] Speaker 04: That but for causation is what makes this case different. [00:10:18] Speaker 00: But sir, this I think circles back to his allegations that was at High Desert State Prison. [00:10:24] Speaker 00: He was cleared to return to the general population before he went to Arizona for about nine days. [00:10:29] Speaker 00: He came back to High Desert State Prison for a medical reason, to have the eye surgery, and then he winds up in solitary confinement because he's reclassified. [00:10:38] Speaker 00: Again, his complaint isn't about that classification decision. [00:10:41] Speaker 00: His complaint is about the failure to receive periodic reviews while he was there. [00:10:47] Speaker 00: And your contention is that there's no clearly established law that would have put them on notice that he needed to be reviewed while he was there? [00:10:54] Speaker 04: Yes, that was because of the closed custody classification upon his return from Arizona. [00:10:59] Speaker 04: That mandated his placement while he was still closed custody. [00:11:02] Speaker 04: And the same day he was reclassified, 11 months later, [00:11:06] Speaker 04: was then appropriately housed. [00:11:08] Speaker 00: When he was given the hearing, he was reclassified and was released to general population. [00:11:13] Speaker 00: I think I've interrupted Judge Breth. [00:11:15] Speaker 02: No, I'm good for now. [00:11:16] Speaker 02: Thank you. [00:11:17] Speaker 00: Judge Lee. [00:11:18] Speaker 00: Okay. [00:11:18] Speaker 00: When you come back, sir, we'll put two minutes on the clock. [00:11:20] Speaker 00: We took quite a bit of your time with questions. [00:11:22] Speaker 00: Thank you for your patience with them. [00:11:28] Speaker 03: Good morning. [00:11:29] Speaker 03: May it please the court, Alex Trieger for appellee Evan Radcliffe. [00:11:32] Speaker 03: The law was clear in 2017 that prisoners held in indefinite or lengthy solitary confinement have a due process right to meaningful periodic reviews. [00:11:41] Speaker 03: But a jury here could find that defendants failed to provide Mr. Ratcliffe those reviews while he languished in administrative segregation for nearly a year. [00:11:49] Speaker 02: How clearly established is the law on how frequent the reviews need to be? [00:11:54] Speaker 02: Do you have a sense of that? [00:11:55] Speaker 02: Because I could see the argument saying, well, we don't need to decide that here, because we do know that 11 months is too long. [00:12:00] Speaker 02: But just on the legal question of how frequent they need to be, do you think that's clearly established? [00:12:05] Speaker 03: I do think that's clearly established, Judge Brest. [00:12:07] Speaker 03: And let me just say, I think the clearly established law is where I want to spend my time. [00:12:11] Speaker 03: I think you put your finger right on it at the beginning of the argument, that the question of. [00:12:17] Speaker 02: So what's clearly established? [00:12:18] Speaker 02: Every 30 days? [00:12:19] Speaker 02: Every 60 days? [00:12:20] Speaker 02: Is there an answer? [00:12:22] Speaker 03: The answer comes from this court's decision in Toussaint. [00:12:24] Speaker 03: I'd point you to 801F2, page 1101, where this court said that prison officials must review prisoners in administrative segregation more than once a year. [00:12:35] Speaker 03: And what I think I want to underscore and make sure the court understands is that Mr. Radcliffe's confinement in administrative segregation was effectively indefinite. [00:12:44] Speaker 03: As defendant Nash told him, and this is at page 2ER210 of the record, [00:12:48] Speaker 03: He would stay in solitary confinement until he completed his medical treatment and was transferred to another facility. [00:12:54] Speaker 03: Mr. Radcliffe had no control over those events. [00:12:56] Speaker 03: defendants had no control over those events and from conversation with my client I understand he's still receiving medical treatment and he's still at high desert state prison. [00:13:05] Speaker 02: But he's not in administrative segregation? [00:13:09] Speaker 03: That's correct. [00:13:10] Speaker 02: But so what is the story with, I'm hearing from the other side something to the effect of well when he came back over for medical reasons he was sort of improperly in Las Vegas because his [00:13:21] Speaker 02: the needs for that kind of prisoner, even setting aside the medical, were just not being met in that prison. [00:13:27] Speaker 02: So he had to be in the special holding situation. [00:13:32] Speaker 03: What does the record say about that? [00:13:33] Speaker 03: I think that's right. [00:13:34] Speaker 03: So if I can help try and unpack that, my understanding is that when he was transferred back from Arizona to High Desert State Prison, OMD reclassified him as close custody, and that's what resulted in his initial placement [00:13:47] Speaker 03: in administrative segregation. [00:13:49] Speaker 02: And that's because of his disciplinary past? [00:13:52] Speaker 02: That has nothing to do with the medical? [00:13:53] Speaker 03: That's correct, Judge Bress. [00:13:54] Speaker 03: But I think, as Judge Christin pointed out, we're not challenging his initial placement in administrative segregation. [00:13:59] Speaker 03: We're challenging defendants' failure to review him for the next year. [00:14:03] Speaker 03: And when you look at the administrative regulations, Nevada's own prison policies, when you look at AR 506, which deals with classification, it provides a role for OMD when a prisoner is transferred between facilities. [00:14:16] Speaker 03: But it doesn't give OMD a role for classifying prisoners within a facility. [00:14:20] Speaker 03: And more importantly, AR 50605 says that administrative segregation is governed by Administrative Regulation 507, which is in the record at 2ER 154. [00:14:32] Speaker 03: And when you read that, it doesn't mention OMD [00:14:34] Speaker 00: Right, and so in fact it places the responsibility on the two defendants that we have here for those 507 reviews. [00:14:42] Speaker 00: Can I ask you about this rule 507, because you just indicated that you thought that he would be entitled to review at least once a year. [00:14:50] Speaker 00: It seems to me that the regulations put the defendants on notice that he was entitled to review more frequently than that. [00:14:59] Speaker 03: That's correct, Judge Christin. [00:15:01] Speaker 03: I think, candidly, we acknowledge that a violation of state prison policy is not in and of itself a constitutional violation. [00:15:08] Speaker 03: But this court's case law, again, Toussaint makes clear that these reviews must be conducted more than once a year. [00:15:13] Speaker 03: And so as Mr. Radcliffe is in administrative segregation for six, seven, eight, nine, 10, 11 months, Toussaint [00:15:21] Speaker 03: put defendants on notice that they needed to conduct these periodic reviews. [00:15:25] Speaker 03: Certainly it can't satisfy due process or Toussaint to review a prisoner a day 361 and day 362 and say you've given them multiple periodic reviews a year. [00:15:35] Speaker 01: The record here, at least the documents show that he received four reviews. [00:15:39] Speaker 01: I know your client says they never happened. [00:15:42] Speaker 01: If those four reviews did occur, would you agree that qualified immunity apply because there's no clearly established law? [00:15:50] Speaker 03: I would agree that if the reviews did in fact occur, which is disputed and is a question that I don't think is properly before the court in this interlocutory posture, it's not that they would be entitled to qualified immunity. [00:16:02] Speaker 03: It's that they would have provided him the process that he was due. [00:16:06] Speaker 03: But nonetheless, I think it's worth noting that a jury here could still find that those periodic reviews were meaningless. [00:16:14] Speaker 03: So Hewitt, footnote nine, makes clear that [00:16:17] Speaker 03: Prison officials must review prisoners in administrative segregation and determine that there is a valid security-based justification for their continued isolation. [00:16:26] Speaker 03: Here, and this goes back to the colloquy you were having with my friend, Mr. Ratcliffe was repeatedly told that he was in solitary confinement because he was a medical treat and return inmate. [00:16:37] Speaker 03: That is not a security-based justification that justifies his ongoing confinement. [00:16:44] Speaker 03: Judge Lee, you are exactly right. [00:16:45] Speaker 03: Eleven months is an awfully lengthy period of time to be held in solitary confinement when there's no need for that. [00:16:53] Speaker 03: Again, Hewitt and Toussaint, Judge Bress, would have put defendants on notice that they needed to give him periodic reviews and that their failure to review him would violate... I understand it's disputed whether there were any periodic reviews, but we have some documents that suggest maybe there were. [00:17:10] Speaker 02: Your client says that never happened. [00:17:12] Speaker 02: Is there anything else in the record on this? [00:17:15] Speaker 03: No, there's not, candidly, and that's what makes it, I think, a stark [00:17:18] Speaker 03: genuine dispute of fact. [00:17:20] Speaker 03: The prison case notes this is 3ER 360. [00:17:22] Speaker 02: This would seem like something that could be discovered. [00:17:24] Speaker 02: There's documents that suggest the reviews happen. [00:17:28] Speaker 02: Were there not depositions or other inquiries of the people who were there, allegedly? [00:17:33] Speaker 03: With the caveat, Judge Russ, that I did not represent Mr. Radcliffe below in the district court. [00:17:37] Speaker 02: Did he have counsel below? [00:17:38] Speaker 03: He did not. [00:17:39] Speaker 03: He was proceeding per se. [00:17:40] Speaker 03: My understanding is there was some discovery, like interrogatories, but there were not depositions. [00:17:45] Speaker 03: We have the written discovery. [00:17:46] Speaker 03: And so what we're left with here is a stark factual dispute where Mr. Radcliffe has said repeatedly under oath, I didn't receive any hearings. [00:17:54] Speaker 03: The prison case notes say that he was present. [00:17:56] Speaker 03: The district court looked at that evidence and said that there was a genuine issue of fact here. [00:18:01] Speaker 03: And under cases like Johnson and the state of Anderson, this court is bound with the district. [00:18:05] Speaker 02: So what's the answer to the documentation? [00:18:08] Speaker 02: Is it fabricated or just it's untrue? [00:18:10] Speaker 02: What do we make of that? [00:18:12] Speaker 02: The separate question as to whether we can review it, but I'm just kind of asking myself, where is this case going? [00:18:17] Speaker 03: Or they could have been inaccurate, or there could be a misunderstanding. [00:18:20] Speaker 03: I think where this case needs to go, at the end of the day, is trial, so that Mr. Radcliffe can tell his side of the story, defendants can tell their side of the story, and a jury can make credibility determinations. [00:18:29] Speaker 00: Excuse me. [00:18:29] Speaker 00: I have a separate question. [00:18:31] Speaker 00: All of your answers at this point assume that he was kept in administrative segregation for non-disciplinary reasons. [00:18:38] Speaker 00: One of his allegations in his handwritten petition is that [00:18:42] Speaker 00: the conditions were identical when he was there for disciplinary reasons as they were for when he was in for non-disciplinary reasons. [00:18:50] Speaker 00: Is that contested? [00:18:52] Speaker 00: That seems to be uncontested is what I'm trying to say. [00:18:54] Speaker 00: Do I have that right? [00:18:55] Speaker 03: It's not been disputed as I read the briefing. [00:18:59] Speaker 00: Okay, so my next question is that [00:19:01] Speaker 00: then the defendants repeatedly argued that he was entitled to the same incidents of prison life in administrative segregation as others. [00:19:09] Speaker 00: And there's, of course, a regulation that says administrative segregation can't be used for disciplinary reasons when you're in non-disciplinary administrative segregation. [00:19:19] Speaker 00: So what I hear him alleging, I think quite clearly, is all the various things he was denied access to and kept in true sounds identical to disciplinary solitary confinement to me. [00:19:30] Speaker 00: And to Judge Bress's point, what I see on this record is the defendants just repeatedly insisting that by regulation he was entitled to not be deprived. [00:19:40] Speaker 00: But it just seems to be a very stark black and white dispute about what the conditions were that he was experiencing. [00:19:46] Speaker 03: I think that's absolutely correct, Judge Christin. [00:19:49] Speaker 03: Defendants' argument that no reasonable jury could find a due process violation improperly asks this court to reweigh the evidence and to second-guess the district court's construction of the record. [00:19:58] Speaker 03: You're right that defendants have repeatedly argued that Mr. Ratcliffe, as a matter of Nevada prison policy, was supposed to experience the same conditions as the general population, but he said repeatedly under oath that he was denied many of those privileges. [00:20:11] Speaker 03: Before the litigation, I'd point you to 2ER 8687, [00:20:15] Speaker 03: And during the litigation, I point you to 2ER-255, where he says he was denied access to outdoor rec time, the ability to participate in programs, job, religious services, the store. [00:20:27] Speaker 03: And so the district court found a genuine issue of fact here about whether his conditions were in a typical and significant hardship. [00:20:33] Speaker 02: And so then at the 11-month mark, once this was finally ventilated, he was then taken out of this? [00:20:39] Speaker 02: That's correct. [00:20:40] Speaker 02: OK. [00:20:40] Speaker 02: And what was the basis for that at that point? [00:20:42] Speaker 02: What changed? [00:20:44] Speaker 03: I don't know. [00:20:44] Speaker 03: He received a full classification committee hearing, and at that hearing, the prison officials looked at him and determined there was no need for him to be in administrative segregation. [00:20:54] Speaker 00: But isn't it also undisputed he wasn't done with his medical treatment at that point? [00:20:59] Speaker 00: He makes that allegation in several different places. [00:21:03] Speaker 00: So to follow up on Judge Russ's question, it doesn't seem that the need to be housed in any particular cell for medical reasons changed. [00:21:14] Speaker 03: That's correct. [00:21:15] Speaker 03: My understanding, Judge Bress, is that he's still receiving medical treatment. [00:21:18] Speaker 03: And to your question, Judge Christin, there's nothing in the record that says that he needed to be in administrative segregation specifically because of his medical condition or to receive medical care. [00:21:29] Speaker 03: And indeed, at the 11th month mark, he was reclassified and let back to general population where he continued to receive medical treatment and continued to stay at High Desert State Prison. [00:21:39] Speaker 00: Counsel, you're out of time. [00:21:40] Speaker 00: Just one minute, please. [00:21:41] Speaker 00: Judge Bress, anything further? [00:21:43] Speaker 00: I think we're good. [00:21:44] Speaker 00: Thank you so much for your presentation. [00:21:46] Speaker 00: Thank you, Your Honor. [00:21:47] Speaker 00: We'll hear from opposing counsel, please. [00:21:53] Speaker 04: Thank you, Your Honor. [00:21:53] Speaker 04: I just wanted to focus on the lack of a protective liberty interest in this time. [00:21:57] Speaker 04: If you look at two excerpt of record, page 86, with his opposition to a summary judgment motion, Mr. Ratcliffe alleged that he was not allowed to work, program, or receive packages, which Arizona offenders were allowed to do. [00:22:09] Speaker 04: Page two excerpt of record, 255, he claims he was denied religious services, no programs, no work, no food to order. [00:22:17] Speaker 04: Never one point in the complaint or the opposition to motion for summary judgment does Mr. Ratcliffe ever allege that he was denied tier time. [00:22:25] Speaker 04: that he was denied access to the phones, that he was denied outdoor yard time, that he was held in a cell for 23 hours a day. [00:22:31] Speaker 04: The district court held a hearing on the summary judgment motion and at that hearing invited Mr. Ratcliffe to expand upon his allegations of deprivations. [00:22:40] Speaker 04: That was not a noticed evidentiary hearing, that was not under oath testimony, Mr. Ratcliffe wasn't sworn. [00:22:46] Speaker 04: Those allegations come exclusively from the testimony at the [00:22:51] Speaker 00: I appreciate that, and you've briefed that, but it wasn't an evidentiary hearing. [00:22:55] Speaker 00: He's there in a pro se capacity, so his remarks weren't evidence any more than a lawyer's remarks would have been evidence. [00:23:02] Speaker 00: But he's still got, and you haven't, the state is not persisting in its failure to exhaust argument. [00:23:11] Speaker 00: So he's alleged other deprivations. [00:23:13] Speaker 00: He's surely alleged that he was [00:23:15] Speaker 00: housed in administrative segregation under conditions that were identical to disciplinary segregation for a period of 11 months, sir. [00:23:23] Speaker 04: First, I would disagree that we've abandoned the exhaustion argument. [00:23:26] Speaker 04: I believe that's the most strong argument for us. [00:23:29] Speaker 04: However, I'm not aware of any case that allows for an interlocutory appeal regarding exhaustion, unfortunately. [00:23:34] Speaker 04: That would have been the first issue that I would have raised, because I believe that was the most incorrect. [00:23:38] Speaker 00: It's a fair point. [00:23:39] Speaker 00: That's not why we're here. [00:23:42] Speaker 04: The district court used the allegations from Mr. Ratcliffe at the oral argument to expand the record and to deny summary judgment. [00:23:50] Speaker 04: If we rely solely on the allegations that Mr. Ratcliffe was not allowed to work, program or receive packages like other Arizona offenders, with Arizona as the baseline, that's not enough to establish an atypical hardship as a matter of law. [00:24:03] Speaker 04: If we look at what he alleges in page 255 that he was denied religious services as well as programs, work, and food, again, [00:24:10] Speaker 04: That alone is not enough to establish an atypical hardship to present a protective liberty interest where the reviews would then be necessary. [00:24:18] Speaker 00: You're over time. [00:24:20] Speaker 00: We want to thank you for your argument. [00:24:21] Speaker 00: Both of you will take that case under advisement.