[00:00:00] Speaker 00: Good morning, your honors, and may it please the court, Athul Acharya for the plaintiff appellant, Muse Welder-Hannes, I'd like to reserve three minutes. [00:00:06] Speaker 03: Thank you. [00:00:07] Speaker 00: This case is about how a state may treat its disabled prisoners, what obligations it has toward them to keep them safe or at least refrain from harming them. [00:00:17] Speaker 00: my client [00:00:38] Speaker 00: as required by the ADA and the Rehabilitation Act, and it did so with deliberate indifference. [00:00:43] Speaker 00: Second, the officers involved were also deliberately indifferent to a serious risk of harming my client in violation of the Eighth Amendment. [00:00:50] Speaker 00: And third, the force they used was so unnecessary and wanton that it also violated the Eighth Amendment's prescription against the unnecessary and excessive use of force. [00:01:00] Speaker 00: Nearly everything in this case turns on knowledge, the state's knowledge for the statutory ADA and RA claims, and the officer's knowledge for the Eighth Amendment claims. [00:01:09] Speaker 00: The facts there are heavily disputed, which means that at summary judgment, they should have been resolved in favor of my client, as the magistrate judge correctly did. [00:01:17] Speaker 04: Is it disputed that the officials at the scene [00:01:25] Speaker 04: thought that he had a classification of T1 that they had, that they'd checked and it was T1. [00:01:32] Speaker 04: Is that disputed? [00:01:33] Speaker 00: That is disputed, Your Honor. [00:01:35] Speaker 00: And I want to talk about that. [00:01:37] Speaker 04: It's just not disputed whether that was the classification, but disputed whether that's what they thought. [00:01:43] Speaker 00: Yes, Your Honor. [00:01:43] Speaker 00: That is disputed. [00:01:44] Speaker 04: And on what basis is that disputed? [00:01:47] Speaker 00: A couple of things. [00:01:48] Speaker 00: First, whether they checked. [00:01:51] Speaker 00: I'll start there because I think that's... Well, they say they checked. [00:01:53] Speaker 00: They – there is no – there's no declaration where they say they checked, Your Honor. [00:01:57] Speaker 00: There's no evidence in the record that they checked. [00:02:00] Speaker 00: No officer – only Gantier filed a declaration, and he – his declaration doesn't say that he checked. [00:02:06] Speaker 00: There's the state's answer, where the state says that the officers checked, but the state's answer is in evidence. [00:02:12] Speaker 00: No party has attested to its truth under penalty of perjury. [00:02:16] Speaker 00: So it's just attorney arguments. [00:02:17] Speaker 00: The only evidence in the record about the officers checking the system actually comes from my client's testimony, where he says, and I think it's on page 174 of the excerpts, he says, Veras. [00:02:28] Speaker 00: Veras is the one that goes to the computer, and he comes back and he says, I don't see any HSRs for you, any prescriptions. [00:02:34] Speaker 00: Now, that's not a transport code. [00:02:36] Speaker 00: He doesn't say, I saw a T1 code for you. [00:02:39] Speaker 00: He doesn't say, I couldn't find a transport code for you. [00:02:41] Speaker 00: He says, I saw no HSRs for you. [00:02:43] Speaker 00: And HSRs, there's no dispute that my client had lots of HSRs. [00:02:47] Speaker 00: He had HSRs for a wheelchair, lower tier, lower bunk. [00:02:53] Speaker 00: And all of these are in the record. [00:02:55] Speaker 00: And the ombuds letter doesn't say that those were mistakenly entered. [00:02:58] Speaker 00: So based on the fact that he went to the system, came back, and said he couldn't see something that was there, [00:03:04] Speaker 00: the magistrate judge held that a jury could reasonably find that he didn't check at all, that he just purported to check, and that's on page 26 to 27 of the excerpts. [00:03:13] Speaker 04: In other words, the district judge is wrong when the district judge says they relied on the fact that they had seen a classification of T1. [00:03:21] Speaker 00: Absolutely, Your Honor. [00:03:23] Speaker 00: I think the district judge relied on the answer, but the answer isn't evidence. [00:03:26] Speaker 00: My client's complaint is evidence because he signed [00:03:28] Speaker 03: I have a question for you. [00:03:35] Speaker 03: Even if the people work to transport the prisoner, [00:03:43] Speaker 03: had seen a code that was incorrectly coded, that they thought he was not coded for a wheelchair, would it have been obvious to them that a person in a wheelchair needed safe transportation? [00:04:05] Speaker 00: I certainly think so, Your Honor. [00:04:06] Speaker 00: I think the fact that he showed up in a wheelchair and that he told them that he couldn't get on the bus, that he needed an accessible mode of transportation, is enough for them to have knowledge. [00:04:16] Speaker 03: Would that be enough for deliberate indifference? [00:04:20] Speaker 00: I think so, Your Honor. [00:04:22] Speaker 00: And I should clarify, all of the facts about the morning of the transfer really go to the Eighth Amendment Deliberate Indifference Claim. [00:04:28] Speaker 00: And there, in cases like Wilk and Clem, this Court has held that once an officer is exposed to knowledge, [00:04:34] Speaker 00: such as, for example, by the prisoner telling the officer, hey, I faced this risk, then the officer is deemed to have that knowledge for summary judgment because a jury can infer that the officer had that knowledge. [00:04:46] Speaker 00: An officer can tell the jury, in fact, I didn't believe the guy. [00:04:51] Speaker 00: But then it's for a jury to decide whether to find that credible or not. [00:04:54] Speaker 00: At summary judgment, the exposure to the information gives the officer knowledge, or at least so a reasonable jury can find. [00:05:01] Speaker 03: So do all the claims depend on deliberate indifference? [00:05:07] Speaker 00: Not the excessive force claim, Your Honor. [00:05:08] Speaker 00: The excessive force claim depends on a subjective intent to cause harm. [00:05:11] Speaker 00: And I'm happy to talk about that if the court would like. [00:05:14] Speaker 03: Well, I would like you to elaborate on that because I didn't know what all the cases showed on it, but it seemed like putting someone who had been in a wheelchair into a van on the floor could cause injury to them. [00:05:36] Speaker 00: Certainly, Your Honor. [00:05:37] Speaker 00: In the excessive force context under the Eighth Amendment, the test is whether the officers had a subjective intent to harm the person, and this Court analyzes that using five factors – the extent of the injuries, the need for force, the proportionality, the need versus the amount, the threat the officers reasonably perceived, and any efforts they made to temper their use of force. [00:05:56] Speaker 00: The extent of the injuries here is severe. [00:05:58] Speaker 00: My client suffered a rebroken shoulder, exacerbated chronic back and leg injuries, [00:06:02] Speaker 00: Reinforced PTSD, extreme pain. [00:06:07] Speaker 00: He now suffers nightmares every night where he relives the torture he suffered at the hands of his police in the home country. [00:06:14] Speaker 00: because of his treatment by the state of Washington. [00:06:18] Speaker 00: There was no need to use force. [00:06:19] Speaker 00: My client was peacefully explaining that he couldn't get on the bus. [00:06:23] Speaker 00: Because there was no need for force, the use of any force was disproportionate. [00:06:27] Speaker 00: The officers didn't reasonably perceive any threat from my client because he was a wheelchair-bound, seriously disabled man who was peacefully explaining that he couldn't get on the bus. [00:06:36] Speaker 00: And this much is undisputed. [00:06:37] Speaker 00: The state doesn't say the officers perceived a threat from him. [00:06:41] Speaker 00: And the officers made no attempt to temper their use of force. [00:06:46] Speaker 00: In Bell against Williams, a similar degree of force, with a similar need, a need to move a disabled wheelchair-bound prisoner from one cell to another, the prisoner there actually used greater force. [00:07:00] Speaker 00: He had barricaded, sorry, greater resistance. [00:07:01] Speaker 00: He had barricaded his cell at one point. [00:07:05] Speaker 00: And this court held that the use of force there was excessive. [00:07:08] Speaker 00: If it was excessive in Bell, it was certainly excessive here. [00:07:11] Speaker 00: It was a greater degree of force here as well. [00:07:13] Speaker 00: I want to go back to the ADA just for a second because we've been talking about the morning of the transfer. [00:07:18] Speaker 00: And on the ADA and RA claims, what happened on the morning of the transfer is essentially irrelevant. [00:07:25] Speaker 00: because even if the system showed a T1 code and it didn't, but even if it did, the state assigned my client a T5 code. [00:07:32] Speaker 00: That means a prison medical provider assessed my client and determined that he couldn't climb the steps of a regular bus and he would need special transportation. [00:07:40] Speaker 00: This is undisputed. [00:07:41] Speaker 00: The state assigned my client a wheelchair, a lower tier, and a lower bunk, which means a prison medical provider [00:07:45] Speaker 00: assessed him and determined that he couldn't climb up the steps to an upper bunk bed, which is pretty similar to climbing up the steps of a regular bus. [00:07:53] Speaker 00: This is also undisputed. [00:07:54] Speaker 00: Also undisputed is my client sent requests two weeks in advance to the captain of the facility, the correctional program manager, and the medical department. [00:08:02] Speaker 00: Key state employees saying, if I'm going to do this transfer, I'm going to need accessible transportation. [00:08:07] Speaker 00: All of this is enough by itself to give the state knowledge. [00:08:12] Speaker 00: And under the ADA and RA, the question is the entity's knowledge, not the individual officers on the morning of the transfer. [00:08:18] Speaker 00: Did the state have the requisite knowledge, and then was the state deliberately indifferent? [00:08:23] Speaker 03: What's the best case on that? [00:08:28] Speaker 00: Updike against Monoma County and then Duval against Kitsap. [00:08:33] Speaker 00: Both those cases say, I'll just quote from them a little bit, whether the plaintiff has alerted the public entity, whether the public entity was on notice, that's Duval, whether the public entity ascertained what accommodations might be needed, and whether the public entity complied with its duty to look into and provide a reasonable accommodation. [00:08:50] Speaker 00: So it all comes down to what [00:08:52] Speaker 00: the state knew and what the state did, not what the individual officers knew and did. [00:08:56] Speaker 00: So here, the state knew because it's the one that gave him the T5 code, and he sent messages in advance – two weeks in advance – to key state actors asking for an accommodation. [00:09:05] Speaker 00: At that point, what was the state's duty? [00:09:07] Speaker 00: It had an obligation to investigate his request for accommodation. [00:09:11] Speaker 00: In Updike, this court explained that a denial of a request for accommodation [00:09:15] Speaker 00: without an investigation is by itself enough to deny summary judgment on deliberate indifference. [00:09:21] Speaker 00: That's at page 954 of UpDike. [00:09:24] Speaker 00: And that, the court could stop its analysis there on the ADA and RA claims. [00:09:28] Speaker 00: There's no evidence that the state performed any investigation into my client's advance requests. [00:09:33] Speaker 00: I think my friend on the other side argues that perhaps the state didn't get those messages, but points to no evidence to that effect. [00:09:41] Speaker 00: And in fact, my client's testimony [00:09:43] Speaker 00: is that Sergeant Gontier was holding printouts of those messages. [00:09:47] Speaker 00: So at summary judgment, the inference is that the state sure did receive those messages and then ignored them. [00:09:52] Speaker 00: That's deliberate indifference. [00:09:54] Speaker 04: And I think I'm right with respect to an ADA claim that the 11th Amendment immunity is overridden by the statute. [00:10:01] Speaker 00: Yes, Your Honor. [00:10:02] Speaker 00: That, I think, is a – I think there's a Supreme Court case on – I think it's Georgia against – I forget the – but yes. [00:10:09] Speaker 02: Council, let me ask you a factual question. [00:10:11] Speaker 02: Does your client speak English? [00:10:13] Speaker 00: He speaks a little English, Your Honor. [00:10:17] Speaker 02: Enough to explain himself and say, I showed up in a wheelchair. [00:10:21] Speaker 02: I need special transportation. [00:10:23] Speaker 00: Yes, Your Honor. [00:10:23] Speaker 00: I spoke to him on the phone. [00:10:25] Speaker 00: It's certainly not the addiction of the Knoxford Don. [00:10:31] Speaker 02: And when he was presented for transport, presumably he was in his wheelchair? [00:10:36] Speaker 00: Yes, Your Honor. [00:10:37] Speaker 02: Do you have any understanding of what happened to the wheelchair after he was placed on the bus? [00:10:42] Speaker 00: I do not. [00:10:43] Speaker 00: My friend on the other side argues that he just walked off the bus. [00:10:49] Speaker 00: My client has expressly said in his testimony that that's false on page 53 of the excerpts. [00:10:56] Speaker 00: The magistrate judge agreed with his – so in his complaint he said some officers took me out of the bus in similar fashion. [00:11:03] Speaker 00: The magistrate judge agreed that that meant that they carried and dropped and dragged him out of the bus. [00:11:07] Speaker 00: The thing was they put him on. [00:11:08] Speaker 00: That was his testimony. [00:11:09] Speaker 00: And then on 53 of the record, he expressly says that that claim that he just stood up and walked off the bus is false. [00:11:15] Speaker 00: He can't do that. [00:11:16] Speaker 02: And earlier you stated counsel that there was no evidence that there was only in the answer that the district judge read that the T code was incorrectly placed in his medical file. [00:11:29] Speaker 02: So I just want to confirm that there was no other evidence presented that he had a T1, not a T5. [00:11:36] Speaker 00: There's – well, so there's two things. [00:11:37] Speaker 00: There's the ombuds letter, but it doesn't say he had a T1. [00:11:40] Speaker 00: It says he had a T5, and then it says it was incorrectly entered into the system, which raises a bunch of questions, like what is the basis for that finding? [00:11:47] Speaker 00: And most importantly, if the ombuds could see it – because the ombuds saw that he had a T code somewhere – could the officers have seen it on the morning as well if they had checked? [00:11:56] Speaker 00: And for the reasons I explained, they didn't, or at least that's the inference at summary judgment. [00:11:59] Speaker 00: The magistrate judge correctly found that if the ombuds could see a T5, the jury can infer that the officers would have seen it too. [00:12:06] Speaker 00: And then the only other piece of evidence there is this declaration from one officer, Long, where he says, outright, Walde Haan has had a T1 T-code. [00:12:15] Speaker 00: Long wasn't there. [00:12:16] Speaker 00: He wasn't there in the morning of the transfer. [00:12:17] Speaker 00: He says that he relied on the use of force reports. [00:12:20] Speaker 00: But the use of force reports don't support that at all. [00:12:23] Speaker 00: You can comb them closely. [00:12:24] Speaker 00: I certainly have many times. [00:12:26] Speaker 00: And they don't even say that the officers checked his T code, much less that they saw a T1 code. [00:12:30] Speaker 00: So Long's testimony is without basis, and at best, it's speculation. [00:12:38] Speaker 00: Is this 15 minutes or 12 right now? [00:12:43] Speaker 00: Okay, I see then that my time is running out, so I'll save the rest for a bottle. [00:12:47] Speaker 03: Thank you. [00:13:00] Speaker 03: Brisbane for the state of Washington Good morning, your honors. [00:13:06] Speaker 01: May it please the court assistant attorney general Sarah Brisbane appearing for the defendants Mr. Weld Yohannes's claims were properly dismissed at summary judgment because he failed to show a material dispute of fact the district court properly granted summary judgment for the defendants and this court should affirm for three reasons [00:13:24] Speaker 01: First, while in the district court, Mr. Weldy-Johannes conceded that special transportation was not provided because of a coding error and therefore cannot show that disability was a motivating factor as required under the ADA and RA. [00:13:38] Speaker 04: Can I stop you right there? [00:13:39] Speaker 04: You say he conceded in the district court? [00:13:42] Speaker 01: Yes, Your Honor. [00:13:43] Speaker 04: What form did that concession take? [00:13:45] Speaker 01: So he said at, you'll see this at ER 81, he wrote that the transport code had been wrongly entered in DOC's Omni, which caused improper transportation. [00:13:56] Speaker 01: There's additional sites as well that it can provide. [00:14:01] Speaker 01: He also says at one point that the T5 code [00:14:09] Speaker 01: Disappeared from the computer and that's at er 41. [00:14:12] Speaker 04: I'm sorry. [00:14:12] Speaker 04: I didn't hear what you said about this say that sentence again I didn't hear very well. [00:14:16] Speaker 01: Oh, I apologize at er 41 he said The t5 code entry disappeared from the computer the morning of the transfer Does he know that or is he just saying that? [00:14:28] Speaker ?: I? [00:14:30] Speaker 04: What basis, I mean, he's pro se, and I'm trying to figure out how much importance we should attach to that, and if it's a harmful statement from him, how much we should hold it against him. [00:14:42] Speaker 04: Like, how does he know that? [00:14:44] Speaker 04: Maybe that's what he's told. [00:14:46] Speaker 04: I'm trying to figure out whether that's really disabling for him once we get here, now that he's got a lawyer, he's no longer pro se, and so on. [00:14:55] Speaker 01: Absolutely. [00:14:58] Speaker 01: He says that at those times. [00:15:01] Speaker 01: Additionally, he relies on the ombuds letter as well as the DOC memo, which says that the code was entered incorrectly. [00:15:10] Speaker 04: And what if those things he's relying on, in fact, are those are unreliable? [00:15:17] Speaker 01: There's no evidence in the record to suggest. [00:15:19] Speaker 01: They're not reliable And we see this in the district court's order Granting summary judgment where the district judge clearly relied on I get that part mm-hmm The district court in its order understood that this was an undisputed fact And now I interrupted you at number one you've got number two and three [00:15:44] Speaker 01: So second with respect to the eighth amendment deliberate indifference claim Mr. Weldy, ohanis failed to show that the defendants were aware of a risk and failed to respond reasonably finally with respect to the excessive force claim Mr. Weldy, ohanis failed to provide sufficient evidence For his excessive force claim I was going to turn first to the ADA RA and [00:16:11] Speaker 01: And there, as we had been discussing, under the ADA and RA, Mr. Weldy-Johannes must put forward specific facts showing that the defendants denied him access to wheelchair accessible transportation or otherwise discriminated against him by reason of his disability. [00:16:28] Speaker 02: So let me ask you this. [00:16:29] Speaker 02: When he presented for transport, was he in a wheelchair? [00:16:33] Speaker 01: Yes, Your Honor. [00:16:34] Speaker 02: Is he able to get a wheelchair if he doesn't need one? [00:16:39] Speaker 01: No, he's not able to get a wheelchair if he doesn't need one. [00:16:44] Speaker 01: That said, what's in the record is that individuals often arrive at a receiving unit, which is where the buses are for transfer, in wheelchairs even if they're otherwise able to ambulate onto a bus because the receiving units are quite a far distance from a housing unit. [00:17:02] Speaker 01: So the wheelchairs there are used similarly where we would see like an airport where an individual needs additional accommodations to get from maybe the security checkpoint to their boarding gate. [00:17:15] Speaker 02: So I'm a little confused by the facts in this case. [00:17:17] Speaker 02: So hopefully you can kind of clarify for me. [00:17:19] Speaker 02: So he shows up. [00:17:20] Speaker 02: He's in a wheelchair. [00:17:22] Speaker 02: Is it your contention that he says something to the officers or does not say something saying, I don't know what you're doing here. [00:17:29] Speaker 02: I can't get on this bus. [00:17:30] Speaker 02: I need a special bus because I need to stay on my wheelchair. [00:17:33] Speaker 02: Or did they not even have that conversation and they just said, Hey, sir, we need to get you on this bus. [00:17:38] Speaker 01: They had that conversation. [00:17:39] Speaker 02: OK. [00:17:40] Speaker 02: And then what happened? [00:17:41] Speaker 02: So he mentions to them, I need to stay on my wheelchair. [00:17:44] Speaker 02: I can't walk up these steps. [00:17:45] Speaker 02: And then what happens? [00:17:47] Speaker 01: So that conversation was had with Sergeant Lee. [00:17:49] Speaker 01: Once Sergeant Lee is informed of that, he contacts Health Services and asks, is it OK that he be transferred? [00:17:56] Speaker 01: At that point, Health Services tells Sergeant Lee that medical has no concerns with him being transferred by a standard transport bus. [00:18:05] Speaker 03: Okay council, I have a question for you. [00:18:09] Speaker 03: Is it your position that if he's, even if he's in a wheelchair, and even if it's, assume it was misquoted, that the transport [00:18:31] Speaker 01: Officers can like pick them up like a sack of potatoes and put them on the floor on the floor of the transport On the floor of the transport fan No, your honor and here we see that the officers Checked with medical and were told that there was no reason that he needed to be transported and [00:18:58] Speaker 01: by a special transport bus. [00:19:02] Speaker 01: There was also the issue of the T1 code. [00:19:05] Speaker 01: There's also in the HSRs that he received, in addition to having access to a wheelchair, he also had access to a walker, which would further support the officer's conclusion that he was able to walk onto the bus. [00:19:21] Speaker 02: Was there a walker there? [00:19:23] Speaker 01: There was not, Your Honor. [00:19:24] Speaker 02: Was one provided for him to use to walk onto the bus? [00:19:28] Speaker 01: I don't believe that's in the record. [00:19:31] Speaker 03: Okay. [00:19:32] Speaker 03: Did the officers put them on the floor? [00:19:35] Speaker 03: Just put them on the floor, on the floor of the bus, whether they did it, throwing them like a sack of potatoes or gingerly setting them down on the floor. [00:19:51] Speaker 03: But did they put them on the floor of the bus? [00:19:56] Speaker 01: What's in the record, I believe, is that they secured him in a holding cell on the bus. [00:20:04] Speaker 03: In a holding cell on the bus. [00:20:06] Speaker 03: OK, so does the person have to stand up to be in that holding cell? [00:20:13] Speaker 01: No, it's a seat. [00:20:15] Speaker 03: It's what? [00:20:16] Speaker 01: It's a seat. [00:20:18] Speaker 03: A seat. [00:20:21] Speaker 03: OK. [00:20:23] Speaker 04: Isn't there something in the record where he states that they put him on the floor I mean they may have ended up in the holding cell, but that they put there's something in the record where he says that they put him on the floor I believe he says in the process of getting him on the bus that they Put him on the floor as they were navigating the stairs and [00:20:48] Speaker 02: What injuries did he sustain as a result of them placing him on the bus? [00:20:55] Speaker 01: He claims he was injured. [00:20:57] Speaker 01: It's also undisputed that as soon as he was on the bus, Nurse Olson Ward came on the bus, asked if he was injured, and he didn't report any injuries. [00:21:11] Speaker 02: So did he not suffer the fracture? [00:21:16] Speaker 01: That would be disputed. [00:21:21] Speaker 03: OK. [00:21:21] Speaker 03: That's what did you say? [00:21:23] Speaker 01: That's disputed, that he suffered injuries from the transfer. [00:21:30] Speaker 02: I guess what I'm asking, though, is I get that it's disputed if it was as a result of the transfer. [00:21:34] Speaker 02: But when he got to the new facility in Walla Walla, did they check him out? [00:21:38] Speaker 02: Did he, in fact, present with a fracture? [00:21:42] Speaker 01: So as soon as incarcerated individuals arrive at a new facility, they're taken directly to health services for in processing. [00:21:51] Speaker 01: There's nothing in the record to suggest that he told anyone upon arrival at health services that he was injured. [00:21:58] Speaker 01: So when they or did they check them then or? [00:22:00] Speaker 01: That would be part of the standard in processing. [00:22:05] Speaker 02: And they didn't find any injuries on his shoulder? [00:22:09] Speaker 01: I don't believe that's in the record. [00:22:13] Speaker 02: Your friend on the other side in his opening statement to us basically said, yeah, I believe he used the term fracture. [00:22:19] Speaker 02: I'm not sure, but his shoulder was hurt. [00:22:22] Speaker 02: So I'm just wondering, is that factually true? [00:22:25] Speaker 02: Did you find that when he was placed in the Walla Walla facility? [00:22:32] Speaker 01: I don't believe the answer to that is in the record. [00:22:34] Speaker 01: I can answer that. [00:22:36] Speaker 01: I don't believe there was a fracture when he arrived at Walla Walla. [00:22:40] Speaker 03: Council, there are so many questions that are raised. [00:22:49] Speaker 03: Would you agree that it would be more fair? [00:22:53] Speaker 03: to all parties to let them have a trial because of issues of fact. [00:23:02] Speaker 03: And let the trial judge make specific findings to resolve the case. [00:23:13] Speaker 01: Based on Mr. Weldy-Ohannes' testimony that he was severely injured in this transfer, [00:23:21] Speaker 01: that appears uncorroborated by any other testimony. [00:23:27] Speaker 01: And based on the rest of the record, taking his statements in context, it appears implausible here [00:23:40] Speaker 01: As soon as he was on the transport bus, Nurse Olson Ward boarded and asked if he was injured, and he said no. [00:23:47] Speaker 01: From the transfer, he was taken directly to health services. [00:23:51] Speaker 01: And we don't see that he reported being injured, even though was taken directly to a health clinic upon arrival at WSP. [00:24:03] Speaker 01: Based on the record, his statements [00:24:06] Speaker 01: just seem implausible. [00:24:08] Speaker 01: And without any other corroborating evidence, the rest of the record as a whole shows that the defendants here did not violate his Eighth Amendment rights and complied with ADA. [00:24:22] Speaker 02: Let me ask you about the video. [00:24:25] Speaker 02: There's something in the record about he requested the video showing what happened. [00:24:31] Speaker 02: Can you tell me what happened there? [00:24:34] Speaker 01: So there's, in the docket, in the excerpts of record, we can see that there's no motion to compel, there's no motion for an extension, continuance. [00:24:45] Speaker 02: He didn't have counsel at this time, correct? [00:24:48] Speaker 01: Correct. [00:24:49] Speaker 01: Okay. [00:24:49] Speaker 01: His complaint does, oh gosh, I'm so sorry. [00:24:52] Speaker 02: Just go for it. [00:24:54] Speaker 01: His complaint does reference [00:24:58] Speaker 01: The video and it's undisputed that. [00:25:01] Speaker 01: There is a video is taken as part of the policy here and he never requested the video and discovery cracked. [00:25:09] Speaker 02: But there is a video cracked. [00:25:19] Speaker 01: So I will briefly switch to the Eighth Amendment deliberate indifference claim. [00:25:26] Speaker 01: Deliberate indifference under the Eighth Amendment is a high legal standard and requires a showing that defendants knew and deliberately disregarded an excessive risk to health and safety. [00:25:36] Speaker 01: And to show deliberate indifference, the plaintiff must show that the defendants were aware of the facts and subjectively drew that inference. [00:25:46] Speaker 01: Here, Mr. Weldy-Ohannes has not shown a general dispute of fact because the defendants were not aware of an excessive risk to his health and safety. [00:25:54] Speaker 04: Well, they were told. [00:25:56] Speaker 04: Maybe they didn't believe it. [00:25:58] Speaker 04: So what do we mean by aware? [00:26:01] Speaker 01: So here we have that once they were told, they immediately talked to health services to verify and ensure that he could safely be transported and were told that there was no concerns. [00:26:17] Speaker 02: Tell me about Olson Ward's medical assessment, where she said he could be transported. [00:26:24] Speaker 01: I don't believe there's anything in the record as to what she looked at. [00:26:29] Speaker 02: However... What does a medical risk evaluation generally look at? [00:26:35] Speaker 01: It would review his medical records and ensure that he could safely be transported. [00:26:40] Speaker 02: Don't they look at things like whether or not you can use pepper spray tear gas or an electronic control device? [00:26:46] Speaker 02: Do they specifically look at his records or just generally is there something related to this particular individual where we couldn't use I don't know a taser because he has a heart condition. [00:26:59] Speaker 01: I think your honor is referencing the use of force report that would be separate from the [00:27:07] Speaker 01: The comment that nurse Olson Ward made to sergeant Lee that was before the use of force report before the search team was was called and that process was started. [00:27:17] Speaker 01: The use of force report that your honors referencing that does reference specifically if the individual has medical conditions that would prohibit certain uses of force. [00:27:30] Speaker 02: And was there anything found there that said some particular uses of force were not allowed or should not be used? [00:27:40] Speaker 01: If I recall correctly, I believe that there was a reference to Mr. Weldy Johannes having a condition that prohibited the use of a taser, I believe, but that wasn't used here. [00:27:57] Speaker 01: So as far as deliberate indifference, oh, I see. [00:28:03] Speaker 01: I'm very close to the end of my time. [00:28:07] Speaker 01: With that, thank you, Your Honors. [00:28:08] Speaker 01: And defendants would ask that this court affirm. [00:28:11] Speaker 03: Thank you. [00:28:18] Speaker 03: Appellant can make rebuttal now. [00:28:28] Speaker 00: Just a couple of points on rebuttal, Your Honor. [00:28:32] Speaker 00: First, as far as the supposed concession that my client made in the district court, he didn't make any such concession. [00:28:40] Speaker 00: And the best evidence of that is that that's not how the magistrate judge read his papers. [00:28:45] Speaker 00: And the district judge didn't rely on any purported concession either. [00:28:48] Speaker 00: My friend on the other side talked about supposed concession on page 81 of the excerpts. [00:28:54] Speaker 00: On page 80, just before that, you'll see he's saying the defendants issued an interdepartmental memo saying he's characterizing the defendant's position. [00:29:03] Speaker 00: He's characterizing what the defendants say, what the Ombudsman's letter says. [00:29:06] Speaker 00: He's not adopting that for himself. [00:29:09] Speaker 00: And he can't. [00:29:10] Speaker 00: He has no knowledge of what T code the system may have shown on the morning of. [00:29:14] Speaker 00: So there's no concession that he had a T code, and certainly nothing conceding that the officers even checked. [00:29:21] Speaker 00: As I mentioned in his complaint, [00:29:24] Speaker 00: testified that Vera's went to the computer, came back and said no HSRs, didn't say anything about a T code. [00:29:29] Speaker 00: So whatever the system may have shown, no one checked, and he certainly didn't concede that he had a T1 code and that the officers relied on that. [00:29:39] Speaker 00: As far as insufficient evidence, I do want to talk about that. [00:29:42] Speaker 00: You know, my front-end website says that there's no corroborating evidence of the injuries he suffered and so on. [00:29:47] Speaker 00: First, there is on page 75 of the record, there's a doctor's note where he's getting a follow-up to an x-ray of his right shoulder. [00:29:53] Speaker 00: So there is evidence corroborating that. [00:29:55] Speaker 00: But on top of that, there is this video that appears all over the record. [00:29:59] Speaker 00: It's the dog that didn't bark until on page 154, 101, 113, 118, 125, all these pages where a defendant's own evidence mentions this video that would prove or disprove almost all of their assertions that he was refusing a transfer, that they checked his records, that they used de minimis force, that they didn't slam, drop, and drag him up the steps of the bus. [00:30:19] Speaker 00: And my client did request this video. [00:30:21] Speaker 00: In his complaint, he said, there's this video. [00:30:23] Speaker 00: It'll prove my claims. [00:30:24] Speaker 00: I'd like to be preserved. [00:30:25] Speaker 00: And at summary judgment, he objected to summary judgment proceeding without – he said photos, but as I said, his English isn't the best. [00:30:33] Speaker 00: He was talking about what was recorded on the camera that he saw the defendants holding. [00:30:37] Speaker 00: In Jones against Blanus, this court said that summary judgment is disfavored. [00:30:42] Speaker 00: where relevant evidence remains to be discovered. [00:30:52] Speaker 00: It would construe as a Rule 5060 request for further discovery before judgment, a very similar statement that the prisoner there made in his papers. [00:31:01] Speaker 00: My client made the exact – or a very similar request here, and that would be on page 87 of the record. [00:31:06] Speaker 00: So it should do the same. [00:31:07] Speaker 00: This court should hold that summary judgment is never appropriate when a pro-state prisoner asks for video that undisputedly exists. [00:31:14] Speaker 00: I see that my time has expired, so I'll just close with this. [00:31:16] Speaker 00: In uptake, this court said that a public entity may not disregard the plight and distress of a disabled individual. [00:31:21] Speaker 00: That's exactly what the state did here. [00:31:22] Speaker 00: It's what the officers did too, and they used excessive force doing it, so this court should reverse. [00:31:26] Speaker 00: Thank you. [00:31:27] Speaker 03: Okay, thank you, counsel. [00:31:29] Speaker 03: I want to thank counsel. [00:31:30] Speaker 03: on both sides of the case for their helpful and urgent arguments. [00:31:39] Speaker 03: This case will now be submitted and the parties will hear from us in due course.