[00:00:00] Speaker 03:
Hardy v. Rabie.

[00:00:02] Speaker 03:
It's number 241138.

[00:00:05] Speaker 03:
May it please the Court?

[00:00:12] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
My name is Michael Sink.

[00:00:14] Speaker 02:
With me today is Kerry Booth.

[00:00:16] Speaker 02:
We represent the Adams County Sheriff's Deputy, Robbie Rabie, and Detention Specialist Dee Herrera.

[00:00:22] Speaker 02:
The plaintiff below, Mr. Hardy, filed a Section 1983 deliberate indifference claim arising out of an incident that occurred

[00:00:29] Speaker 02:
on September 22nd, 2022, when Mr. Hardy fell out of his wheelchair while inside his cell at the Adams County Detention Facility.

[00:00:38] Speaker 02:
Deputy Raby and detention specialist D. Herrera separately filed motions to dismiss and asserted qualified immunity as a defense.

[00:00:46] Speaker 02:
This appeal presents this court with three separate issues.

[00:00:49] Speaker 02:
First, whether Mr. Hardy's allegations as to each separate defendant are sufficient to state a claim for deliberate indifference against each of the two

[00:00:59] Speaker 02:
Second, the question is whether the case law on deliberative difference in this circuit in the Supreme Court is clearly established that each defendant's conduct as plausibly alleged in the complaint violated clearly established standards.

[00:01:13] Speaker 02:
And third, whether the district court's decision to rely on case law not cited by either party on the issue of qualified immunity runs afoul of this court's assessment of a burden on the plaintiff at the qualified immunity level.

[00:01:28] Speaker 02:
If the appellants prevail on any one of these three issues, the court should reverse the district court.

[00:01:33] Speaker 02:
Turning first into prong one and the allegations on the complaint, the facts as alleged indicate that neither defendant were present at the time that the plaintiff, Mr. Hardy, fell in his cell.

[00:01:44] Speaker 02:
They did not witness the event.

[00:01:46] Speaker 02:
They did not participate in the facts and circumstances giving rise to it.

[00:01:49] Speaker 02:
They were provided information of different sorts at various points after the initial fall.

[00:01:55] Speaker 02:
As to Detention Specialist De Herrera, the only concrete allegations in the complaint are that he is the detention specialist who was on duty that evening.

[00:02:04] Speaker 01:
And that he was in the tower.

[00:02:06] Speaker 02:
The allegations assume that he's in the tower.

[00:02:10] Speaker 02:
They assert that the basis for the allegation that he was in the tower is the double inference drawn from the quotation

[00:02:18] Speaker 02:
that Mr. Hardy draws inferences from regarding what Mr. Deputy Chavez said as to why he didn't respond to the button.

[00:02:25] Speaker 02:
And that quotation is that they were not going to be chasing buttons because the inmates were abusing the buttons.

[00:02:31] Speaker 02:
but nothing in that quotation itself on its face.

[00:02:34] Speaker 01:
Are you arguing that we should reverse for defendant Herrera, because even under the 12b6 standard, the plaintiff hasn't alleged, and we can't credit the reasonable inferences from the complaint, that it was insufficiently pleaded that Herrera was the recipient of the three call buttons?

[00:03:00] Speaker 02:
In part, yes, Your Honor.

[00:03:01] Speaker 02:
Under Rule 8, to make an allegation, the plaintiff could pursue one of two paths.

[00:03:06] Speaker 02:
The plaintiff can base an allegation based on information in their possession that, as a percipient witness, they alleged to have sincerely perceived.

[00:03:15] Speaker 02:
Here, from the perspective of a cell with the closed door,

[00:03:20] Speaker 02:
what is happening inside the tower across the common area cannot be known to the plaintiff.

[00:03:25] Speaker 02:
Now, on information and belief.

[00:03:28] Speaker 01:
Just make sure that we're on the same page.

[00:03:32] Speaker 01:
I know you make an argument that he couldn't have seen within the closed door.

[00:03:36] Speaker 01:
What you started by saying is, I don't even credit the fact that Herrera, whether it was Herrera or Kevin or Bob Baccarat,

[00:03:46] Speaker 01:
was in the tower that when his cellmate hit the emergency button three times, I don't, as Mr. Herrera's lawyer, I don't even agree that he pleaded that it was Herrera that was the recipient of that call button.

[00:04:08] Speaker 01:
So if you're arguing that, that's great.

[00:04:12] Speaker 01:
I did not get that from your brief, so I'm pleased to know that you're denying that it was Herrera that was in the tower that received the three call buttons.

[00:04:27] Speaker 02:
No answer has been filed in this case.

[00:04:29] Speaker 02:
What we are arguing is that the complaint itself presupposes something that the plaintiff cannot know.

[00:04:37] Speaker 02:
which is the actual identity of the person in the tower at the time the call bells were allegedly made.

[00:04:42] Speaker 00:
Why isn't that permitted by our case law though?

[00:04:44] Speaker 00:
We have cases that talk about the plausibility pleading standard and recognize the asymmetry of information that can be involved in a scenario.

[00:04:55] Speaker 00:
In this factual scenario seems to me to be a very strong case for an asymmetry of information that an inmate in a cell could have no way of knowing

[00:05:04] Speaker 00:
who actually was in the call center to receive that call, but yet is relying upon other evidence to essentially plausibly allege that it was de Herrera, because in paragraph 37 of the Second Amendment complaint, he then discusses or alleges facts that it was de Herrera who ignored the call button.

[00:05:24] Speaker 02:
I grant that the complaint accuses Mr. de Herrera of being the detention specialist.

[00:05:30] Speaker 02:
Why is that enough?

[00:05:33] Speaker 02:
plausible allegations require this court to pierce whether this plaintiff could have known the facts that he's alleging.

[00:05:40] Speaker 02:
This is akin in Iqbal, where the Supreme Court was concerned that the plaintiff had asserted conspiracy allegations against various parties, whom the complaint revealed no concrete factual evidence that he had any basis to know that a conspiracy had occurred.

[00:05:54] Speaker 02:
And aside from just that general pleading issue under Iqbal and Rule 8 are two other variables.

[00:06:00] Speaker 02:
The first is, in the case probably most analogous to the situation that is alleged against De Herrera, even if you get past this issue, is Lance, where this court rejected the supposition that the officer, their officer Morgan, had had a second conversation where additional information was revealed to him, where the plaintiff claimed he had made a call and spoke to someone in the tower and relayed the additional information, but didn't know who it was.

[00:06:28] Speaker 02:
And given that limited information, the court said you cannot impute that when you don't know that the officer Morgan was the recipient.

[00:06:36] Speaker 02:
In fact, he didn't allege that he was the recipient because he didn't have a second conversation.

[00:06:39] Speaker 00:
But here another officer told the plaintiff it was de Herrera.

[00:06:44] Speaker 02:
What the quotation in the, and if here, if I may, I first need to make a slight correction.

[00:06:49] Speaker 02:
Reply brief page nine of our reply brief, the last sentence on that page reads as if, and I hope this is not creating some of this confusion,

[00:06:58] Speaker 02:
as if we are contesting whether Mr. Hardy in his appellate brief has accurately quoted the complaint.

[00:07:04] Speaker 02:
We acknowledge that with some modifications, he is accurately quoting the allegation from the complaint.

[00:07:09] Speaker 02:
What our point is, rather, is that the quotation that is being offered by Mr. Hardy is merely the quotation from Deputy Chavez that we are not going to chase buttons and prisoners are abusing buttons.

[00:07:23] Speaker 02:
The quotation attributed to Mr. Chavez has no reference to de Herrera or anyone else.

[00:07:28] Speaker 00:
But that's not the key part of paragraph 37.

[00:07:30] Speaker 00:
The key part is de Herrera did not respond to the emergency call button.

[00:07:36] Speaker 02:
I grant that that is stated in as Mr. Hardy's inference from Deputy Chavez's quotation.

[00:07:43] Speaker 02:
That quotation comes back up a second time as the predicate fact for the conspiracy allegation, which again we have also argued is akin to the Iqbal allegation that is

[00:07:52] Speaker 02:
is impermissible and that the court needs to pierce on a plausibility standard.

[00:07:57] Speaker 03:
But even if... Could I just jump in?

[00:08:02] Speaker 03:
I don't know if this is related.

[00:08:03] Speaker 03:
Well, it's related to Deputy Specialist De Herrera.

[00:08:08] Speaker 03:
I'm interested in something you have in your reply brief.

[00:08:12] Speaker 03:
It seems to make a bit of a concession

[00:08:15] Speaker 03:
about the objective step in a deliberate indifference claim.

[00:08:22] Speaker 03:
But I'm interested in your being very clear with us what's being conceded there and what's not.

[00:08:30] Speaker 02:
Based on the case laws that was presented to the district court, the district court did not do a detailed analysis of McCowan.

[00:08:35] Speaker 02:
That case was briefly raised below, but then pressed more vigorously on appeal.

[00:08:40] Speaker 02:
And based on that argument on appeal, and we can argue if we get to the third point about the burden to begin with, but on the assumption that there is good precedent, regardless of what was raised, one can read, and I think should read that as stating under prong one of the deliberative difference standard that a 150-minute ride in an officer's car where the inmate is complaining of pain

[00:09:07] Speaker 02:
that the deputy was there to witness and heard an audible shoulder tear is enough time to constitute a sufficiently serious objective standard for deliberate indifference.

[00:09:17] Speaker 02:
So based on the 150-minute argument, if de Herrera was in the tower,

[00:09:23] Speaker 02:
And if he had more information than we argue that he is alleged to have, even assuming that he was there, we are not going to hang our appellate hat on the difference between 150 minutes and 90 minutes.

[00:09:32] Speaker 02:
Now, the reason we draw a line on what happened in the interim with the cellmate who is lifting him up in the medium is because it's not exactly clear what the time reference is there.

[00:09:44] Speaker 02:
And second of all, this court in, I believe it was MATA,

[00:09:47] Speaker 02:
indicated that it matters what the allegation is from the plaintiff as to the injury sustained.

[00:09:52] Speaker 02:
And if the injury sustained might even be brought by a third party, that changes the assessment entirely.

[00:09:57] Speaker 02:
So there is an argument.

[00:09:59] Speaker 01:
I don't mean to be critical.

[00:10:05] Speaker 01:
I just didn't understand what you just said.

[00:10:07] Speaker 01:
So not with regard to deliberate indifference or the subjective prong, but you're saying with regard to the objective seriousness of the condition,

[00:10:17] Speaker 01:
I just didn't understand what the cause of that objective need, how that could relate to whatever you were talking about.

[00:10:28] Speaker 02:
I believe it is moda.

[00:10:30] Speaker 02:
If it's not moda, it's quintana.

[00:10:31] Speaker 02:
The court goes out of its way in a paragraph to discuss the material significance of how you frame the injury to, I believe, the objectiveness of the seriousness of the injury.

[00:10:42] Speaker 02:
So whether you're complaining of just persistent pain for the duration of 90 minutes,

[00:10:47] Speaker 02:
is one inquiry, whether you're campaigning of the back injury that has occurred because the cellmate comes in and intervenes and lifts you off the ground.

[00:10:53] Speaker 01:
You're still under pain.

[00:10:55] Speaker 01:
I mean, so you're saying that, well, because the cellmate caused the injury, so they don't have to do anything about it because they didn't cause it.

[00:11:04] Speaker 02:
Yes.

[00:11:05] Speaker 02:
What I'm arguing, though, is that the 90 minutes related to the pain is one thing.

[00:11:10] Speaker 02:
Any injuries that were sustained separately from the generic pain because of the it

[00:11:15] Speaker 02:
cellmates intervening cause that we are not consuming that.

[00:11:18] Speaker 01:
So if I'm an inmate and my cellmate brutalizes me and I am in severe pain, then there is no Eighth Amendment requirement to provide me medical care because they didn't cause my pain.

[00:11:38] Speaker 01:
It was a cellmate.

[00:11:40] Speaker 02:
That's not what I'm arguing, nor is it what I understand Mata to be saying.

[00:11:45] Speaker 01:
It's certainly not what any of the cases say, but I thought that's what you just said.

[00:11:48] Speaker 01:
I thought you were distinguishing between Herrera and Raby, implicitly perhaps, because Raby came by after it was the cellmate who had tried to hoist Hardy into the wheelchair.

[00:12:07] Speaker 01:
And that was the distinguishing fact between Raby and Herrera?

[00:12:12] Speaker 01:
Or am I misunderstanding your argument?

[00:12:16] Speaker 02:
In MATA, I believe, the distinguishing point is that you pull apart the different elements that you are alleging as the objective prong of deliberate indifference.

[00:12:27] Speaker 02:
In your Honor's question, if I've understood it correctly, is that you are saying pain and then the injury.

[00:12:33] Speaker 02:
And all we're saying is we're agreeing as to pain.

[00:12:36] Speaker 02:
What additional persistent injuries may be because of a back injury?

[00:12:41] Speaker 01:
Yeah.

[00:12:41] Speaker 01:
It doesn't matter, right?

[00:12:43] Speaker 01:
Considerable pain under all of our case law can be an objectively serious condition.

[00:12:48] Speaker 01:
And so back to Judge Matheson's question, if on pages five and six of your reply brief, you're acknowledging that the pain was an objectively serious condition for Herrera, there is certainly no allegation in the complaint that the pain had dissipated by the time

[00:13:04] Speaker 01:
Rabie comes, it had been exacerbated perhaps because of the cellmate.

[00:13:09] Speaker 01:
So I assume that you're conceding that there was an objectively serious condition through considerable pain with regard to the claims against both Herrera and Rabie.

[00:13:19] Speaker 02:
Not based as to Rabie under McCowen.

[00:13:22] Speaker 02:
McCowen is 150 minutes.

[00:13:23] Speaker 02:
The argument here maybe to Herrera is 90 minutes.

[00:13:26] Speaker 02:
The argument as to Rabie is indeterminate but significantly shorter.

[00:13:31] Speaker 02:
And here the chronology of the complaint is a little unclear, but the summary in argument on appeal suggests that the moment the time passage between when Rabie hit that door and then closed the door and the evening medical pass was a few moments.

[00:13:46] Speaker 02:
Both are described roughly at the 90 minute mark.

[00:13:50] Speaker 02:
So if the time is approximately 90 minutes that passes before Rabie comes in, and then it's still approximately 90 minutes total before the evening medical pass,

[00:14:00] Speaker 02:
There are only a few moments where Rabie is allowing Mr. Hardy to persist in his state until the pre-scheduled medical pass comes in.

[00:14:08] Speaker 00:
Counsel, is your argument in the timing that the plaintiff doesn't allege that there was delay subsequent to Deputy Robbie's interaction, or that it's unknown and therefore we can't hold that fact as one that's been plausibly alleged, or that there are facts that have been alleged that we know that we can say it was a very short time until

[00:14:26] Speaker 00:
The evening shift arrived.

[00:14:27] Speaker 00:
The former, Your Honor.

[00:14:28] Speaker 00:
Thank you.

[00:14:28] Speaker 03:
Well, you said a few moments.

[00:14:30] Speaker 03:
What's that based on?

[00:14:32] Speaker 02:
It is based on reading the complaint, which, as Judge Federico has indicated, is silent as to the gap in time after Rabey came.

[00:14:41] Speaker 02:
But it very clearly establishes the total duration until he does, and the statements in the response brief that seem to indicate that the med pass arrived approximately 90 minutes after the fall.

[00:14:55] Speaker 02:
Now, I don't read that as giving us precise chronology, but if that's how they're reading their own complaint, then there can only be a matter of a few moments, whether that's one or five or ten, I know not.

[00:15:07] Speaker 02:
But the complaint itself is technically silent on that point.

[00:15:10] Speaker 02:
And I see I'm out of time.

[00:15:11] Speaker 02:
You are.

[00:15:12] Speaker 02:
Thank you.

[00:15:12] Speaker 02:
Thank you, counsel.

[00:15:16] Speaker 04:
Good afternoon.

[00:15:16] Speaker 04:
May it please the court?

[00:15:18] Speaker 04:
Kevin Jason for the plaintiff appellee Ralph Marcus Hardy.

[00:15:23] Speaker 04:
This is a case about inaction in the face of a medical emergency.

[00:15:27] Speaker 04:
It's about the responsibilities of those who are positioned to help and what happens when they do not do so.

[00:15:33] Speaker 04:
Since 2000, this court has made clear that jail officials, when they are acting as gatekeepers as a sole means of access to medical care, that they violate the Constitution when they deflate its care or they deny it.

[00:15:45] Speaker 04:
That is exactly what happened here with the appellants.

[00:15:47] Speaker 04:
When Mr. Hardy fell from his chair and onto the ground, he experienced such pain

[00:15:52] Speaker 04:
that he urinated himself, he was mobilized.

[00:15:56] Speaker 04:
When this occurred, he asked that his cellmate, Mr. Martinez, click a button for emergency distress.

[00:16:05] Speaker 04:
This was pursuant to the facility protocol that floor deputies would respond within seconds.

[00:16:10] Speaker 04:
He alleges that appellant de Herrera was tasked with responding to this.

[00:16:15] Speaker 04:
And for this, I point to paragraph 26.

[00:16:18] Speaker 04:
I know there was discussion on this earlier.

[00:16:20] Speaker 04:
And he also alleges that DeHur failed to notify any floor deputies.

[00:16:26] Speaker 04:
Mr. Hardy was on the ground for an hour.

[00:16:28] Speaker 04:
At the time, Mr. Martinez pressed the button once.

[00:16:32] Speaker 04:
There was no response.

[00:16:33] Speaker 04:
He pressed it a second time.

[00:16:34] Speaker 04:
There was no response.

[00:16:34] Speaker 04:
He pressed it a third time.

[00:16:35] Speaker 04:
No response.

[00:16:36] Speaker 04:
He didn't press it with seconds in between.

[00:16:38] Speaker 04:
He pressed it 10 to 15 minutes apart over a 45-minute window.

[00:16:42] Speaker 04:
Mr. Hardy, while he was on the ground, he eventually got aided to his chair by Mr. Martinez, his cellmate.

[00:16:48] Speaker 04:
But because Mr. Martinez is not a medical official, he's not trained in this, the predictable occurred, and then he exacerbated his injury and was left in severe pain again in a contorted position within the chair.

[00:17:00] Speaker 03:
Does your complaint reflect the basis on which to say that Detention Specialist De Herrera was in fact the person in the tower?

[00:17:15] Speaker 03:
Does the complaint explain how you came to that allegation?

[00:17:18] Speaker 04:
It does identify Specialist De Herrera as the one who was responsible for responding and for notifying for deputies.

[00:17:28] Speaker 04:
It doesn't explain the provenance of that information, but as we do know later on in the complaint with the discussion with Deputy Chavez, that is circumstantial evidence that demonstrates that the reason why Detention Specialist De Herrera didn't respond to the calls was for this policy of not responding to calls.

[00:17:46] Speaker 04:
But I do want to note that when it comes to Specialist Herrera, there is also circumstantial evidence as well that there was this policy and that he didn't follow it.

[00:17:56] Speaker 04:
These all go to subjective prong.

[00:17:58] Speaker 04:
But before I go to that, I do want to just continue with this timeline and just clarify that a little bit as well.

[00:18:03] Speaker 04:
So I know that there was discussion about how much time had passed.

[00:18:06] Speaker 04:
My friend on the other side points to the fact that it's alluded to as mere moments.

[00:18:12] Speaker 04:
But that is not what alleged in the complaint

[00:18:15] Speaker 04:
Rather, Mr. Hardy lays out a timeline that while he was on the floor for an hour, that's when he got moved to the chair.

[00:18:21] Speaker 04:
30 minutes after that, 90 minutes after the initial fall, is when Deputy Raby came to a cell.

[00:18:27] Speaker 04:
That is when the 90 minutes is pertaining to the time in which Raby observed Mr. Hardy in his chair, commented about that he asked what happened to him.

[00:18:36] Speaker 04:
Mr. Hardy declared a medical emergency.

[00:18:39] Speaker 04:
Mr. Raby did not act on that.

[00:18:41] Speaker 04:
He did not tell anyone.

[00:18:42] Speaker 04:
And instead, he told them to file the grievance.

[00:18:44] Speaker 04:
But he also alleges immediately after that that Deputy Raby went home.

[00:18:48] Speaker 04:
He describes that he didn't alert anyone, that there was a shift change.

[00:18:53] Speaker 04:
That shift change occurred.

[00:18:54] Speaker 04:
And then there was another rotation of guards.

[00:18:57] Speaker 04:
That Deputy Chavez then came.

[00:18:58] Speaker 04:
And then even then, it was only after the distribution of medicine that he offered medical assistance.

[00:19:05] Speaker 04:
And he actually doesn't even allege that the assistance occurred at that point.

[00:19:08] Speaker 03:
Council, could I just I'm interested in this

[00:19:13] Speaker 03:
last minute or so of timeline on Deputy Raby.

[00:19:18] Speaker 03:
Would you agree that Deputy Raby was not responsible for any harm that Mr. Hardy suffered before he, Deputy Raby, came to his cell?

[00:19:28] Speaker 04:
That is correct.

[00:19:29] Speaker 04:
Deputy Raby did not have an opportunity as far as alleged in the complaint to intervene in any of the steps before then.

[00:19:35] Speaker 03:
So how long did Mr. Hardy have to wait for medical attention after

[00:19:43] Speaker 03:
Deputy Raby left his cell.

[00:19:46] Speaker 04:
So for that, I would note that this court has made clear that even a mere delay may be unconstitutional.

[00:19:53] Speaker 03:
Well, no, I'm asking you how long.

[00:19:56] Speaker 03:
You can get to the legal argument.

[00:19:58] Speaker 03:
But factually, how long?

[00:20:00] Speaker 04:
I mean, I think I would caution the court against parsing it out in this way.

[00:20:06] Speaker 04:
I think that's a departure from how it's done.

[00:20:08] Speaker 04:
And I'd be happy to answer the question, but I do want to just first go to first principles.

[00:20:13] Speaker 04:
How long?

[00:20:14] Speaker 04:
OK.

[00:20:14] Speaker 04:
So I mean, what we do know is that in McClellan, it has often been described as two hours here.

[00:20:23] Speaker 04:
In what?

[00:20:25] Speaker 04:
In McClellan v. Morales.

[00:20:27] Speaker 03:
No.

[00:20:27] Speaker 03:
How long was it here?

[00:20:29] Speaker 03:
How long did it take between Dr. Raby leaving

[00:20:35] Speaker 03:
I see.

[00:20:36] Speaker 03:
I apologize.

[00:20:37] Speaker 04:
I thought you were asking how long it would have to be.

[00:20:40] Speaker 03:
No, I'm asking what it was.

[00:20:42] Speaker 04:
It actually was over an hour.

[00:20:43] Speaker 04:
Over an hour.

[00:20:45] Speaker 04:
And is that alleged in the complaint?

[00:20:46] Speaker 04:
That amount of time was not articulated in the complaint.

[00:20:49] Speaker 03:
Well, then how can we accept that as the time?

[00:20:52] Speaker 04:
Because in this, so.

[00:20:54] Speaker 04:
We can only look at the four corners of the complaint.

[00:20:57] Speaker 04:
Understood, Your Honor.

[00:20:58] Speaker 04:
And that's why I am not saying that this court should be viewing it as an hour.

[00:21:02] Speaker 04:
It would be necessary to determine that there was the objective prong met.

[00:21:06] Speaker 04:
I do think that the operative question here is not defendant by defendant how much time has passed.

[00:21:13] Speaker 03:
Well, why wouldn't it be?

[00:21:14] Speaker 03:
How did Deputy Raby's failure to summon medical assistance cause injury to your client?

[00:21:24] Speaker 04:
Because the question is ultimately, what is the pain or suffering that the plaintiff incurred?

[00:21:31] Speaker 04:
And this court has held that when someone is failing to act, that they can't go to what happened subsequently.

[00:21:36] Speaker 03:
Well, OK, let's just parse this out.

[00:21:40] Speaker 03:
What if the nurse came within two minutes?

[00:21:44] Speaker 03:
But if the nurse came within two minutes, would you have a case?

[00:21:50] Speaker 04:
I think that here in this case, we don't actually need to address that.

[00:21:55] Speaker 04:
But I will answer the question in that I do think that per the standard of matter where they do say that a mere delay may be unconstitutional and they do point to an analysis.

[00:22:05] Speaker 03:
Well, how long?

[00:22:06] Speaker 03:
You're not answering my question.

[00:22:10] Speaker 03:
Two seconds?

[00:22:10] Speaker 03:
Sure.

[00:22:11] Speaker 03:
I mean, at some point, he's not going to be liable, correct?

[00:22:15] Speaker 03:
Yeah, that is correct, Your Honor.

[00:22:16] Speaker 03:
What is that point?

[00:22:17] Speaker 04:
I mean, so I will say that I could understand if the court did find that to be the case, like, in abstract, and hypothetically.

[00:22:25] Speaker 03:
No, I'm not talking about that.

[00:22:28] Speaker 03:
We're in the abstract because you haven't alleged it.

[00:22:31] Speaker 04:
So in this case, Mr. Hardy did say, and he filed his complaint pro se,

[00:22:38] Speaker 04:
He wasn't aided with the assistance of counsel at the time when he was proceeding in the district court.

[00:22:43] Speaker 03:
You have an amended complaint, though, don't you?

[00:22:45] Speaker 04:
We do have an amended complaint, and I should also note that there is also a pending amended complaint at the district court level, should this get remanded, and that he is now being benefited by counsel at the lower court.

[00:22:55] Speaker 04:
Because I do think that there are

[00:22:57] Speaker 04:
some ambiguities to the complaint.

[00:23:00] Speaker 04:
I do admit that in terms of identifying the number of minutes.

[00:23:03] Speaker 04:
But what is not unclear is what were the specific events that happened before he received any medical care, and whether or not

[00:23:10] Speaker 04:
there was a shift change is an objective fact that could be determined and could be further elaborated upon on summary judgment.

[00:23:17] Speaker 04:
I mean, he's not saying that at some point later this happened.

[00:23:20] Speaker 04:
He's saying that it just happened after.

[00:23:23] Speaker 04:
He does mark specific events that occurred between when Rabie was there and when he eventually did speak to the next guard.

[00:23:30] Speaker 00:
Counsel, can I ask you to continue on this line of questioning, because maybe I misunderstood your argument from the briefs and then today.

[00:23:36] Speaker 00:
I understood in reading the briefs that the analysis between the two defendants is different, because there's no allegation that de Herrera would have ever observed Mr. Hardy in serious pain.

[00:23:48] Speaker 00:
And so the objective prong in regards to de Herrera is that the delay, that the delay between when the emergency call goes in until 90 minutes later,

[00:23:58] Speaker 00:
is what makes the objective prong viable under de Herrera.

[00:24:02] Speaker 00:
The difference being with Deputy Rabi is, once he comes in and observes Mr. Hardy, who expresses a medical emergency in serious harm, at that point, the objective prong is met.

[00:24:12] Speaker 00:
Do I have that part right?

[00:24:13] Speaker 04:
I think if the court were to look at that, that would be correct.

[00:24:16] Speaker 04:
But I don't mean to belabor it, but I do think that this court in pass hasn't viewed it that way with the objective prong.

[00:24:21] Speaker 04:
I do want to just point to Sealock, for example.

[00:24:23] Speaker 04:
That's a case in which, that's the Sumner case on this matter.

[00:24:26] Speaker 04:
There, the defendant in whom they found that summary judgment was not or rather that he should be held liable.

[00:24:34] Speaker 04:
He saw the individual, and then he denied care.

[00:24:37] Speaker 04:
Notably, after that happened, another guard came and offered pain relief and a pain reliever.

[00:24:43] Speaker 04:
And then the court didn't look to the time period from when this guard saw the plaintiff and then when the next guard came, or rather from when the guard came, denied care, and then when he ultimately got the care from

[00:24:56] Speaker 04:
the actual medical facility.

[00:24:58] Speaker 04:
And there it also just looked at the totality of whether or not there had been hours of pain and the pain or suffering that occurred rather than what were the intermediate steps.

[00:25:07] Speaker 04:
Usually this case, excuse me, usually this court only looks defendant by defendant when analyzing the subjective prong.

[00:25:14] Speaker 04:
And you know, I would also look to matter.

[00:25:15] Speaker 04:
That's another case where there are multiple defendants and then analyzing all of them, it doesn't try to go

[00:25:21] Speaker 04:
step-by-step to determine what was the objective harm at each level, rather than identifying what does the person know and what were the steps that they took, prospectively, because again, in MATA, this is also notable.

[00:25:34] Speaker 04:
There, one of the guards said, ultimately, they did see someone else the next morning, so it's okay, but then said you didn't know that at the time when you denied the care, so you cannot now benefit from that just because ultimately they did see something after that.

[00:25:48] Speaker 00:
Council, can I go back to a point I think you were going to make towards the beginning about De Herrera and that subjective prong.

[00:25:54] Speaker 00:
In paragraph 37, which my reading of the case is sort of the primary allegation that gives rise to facts that would support the claim against De Herrera,

[00:26:09] Speaker 00:
You mentioned how the Deputy Chavez's comments to Mr. Hardy give rise to a quote about some inmates abuse the buttons, and they are not going to spend their entire shift chasing buttons.

[00:26:20] Speaker 00:
But as the defendant points out, in the allegation, it says, living unit deputies.

[00:26:27] Speaker 00:
But that excludes detention specialist De Herrera, because he's not a living unit deputy.

[00:26:33] Speaker 00:
So what's your response to that argument made by the defendant?

[00:26:40] Speaker 04:
I think, yeah, so I understand the point, Your Honor.

[00:26:44] Speaker 04:
And I don't think the title here should be read so literally as to exclude.

[00:26:50] Speaker 04:
Because for one, detention specialist or her, I'm not sure.

[00:26:56] Speaker 04:
Mr. Hardy wasn't, as far as we understand, drawing distinctions by title.

[00:27:00] Speaker 04:
I mean, this was clearly regarding the actions of detention specialist or her.

[00:27:05] Speaker 00:
Yeah, but he's aware of that distinction.

[00:27:07] Speaker 00:
And I know that because in his handwritten paragraph 37,

[00:27:11] Speaker 00:
As you look, it says in the first sentence, Deputy Chavez also informed Mr. Hardy that the reason defendant and then written above it says DET period specialist.

[00:27:20] Speaker 00:
Absolutely.

[00:27:21] Speaker 00:
So he seems to be aware of that distinction.

[00:27:23] Speaker 04:
Sure.

[00:27:24] Speaker 04:
And I mean, I think this court actually probably does not even need to.

[00:27:30] Speaker 04:
I think regardless of whether or not there was a distinction, it actually doesn't change the analysis because I think the operative allegation is that the hurrer was the one who was supposed to alert the deputies and that he did not do so.

[00:27:46] Speaker 04:
It was, and as alleged, Mr. Hardy points out that the expectation was that DeHur was supposed to act, and then he alleges that there was a failure of action.

[00:27:55] Speaker 04:
I think that for 37, it speaks more to the reasoning, not to who was supposed to be doing what, but I do take a point that that was written in the complaint.

[00:28:05] Speaker 01:
Can I ask you a follow-up question?

[00:28:08] Speaker 01:
And that is, in Sealock, Mata, Lance, all of the cases, as I understand it,

[00:28:17] Speaker 01:
There was a situation where the court recognized a constitutional violation when the officer either observed or was told, for example, at Lance or at Booking, as in Quintana, sees or hears the inmate say, I have a medical need, a pre-epism, chest pain.

[00:28:47] Speaker 01:
Oddity about, not oddity, I think arguably the unique aspect of this case with Officer Herrera is that emergency button was just that for all emergencies.

[00:29:00] Speaker 01:
I wasn't fed.

[00:29:01] Speaker 01:
They forgot to bring me my medications.

[00:29:03] Speaker 01:
They forgot to bring me my evening meal.

[00:29:07] Speaker 01:
And on prong two, at least, of qualified immunity,

[00:29:14] Speaker 01:
Is it a problem that we don't have clearly established case law saying that an officer who is aware that there's an emergency who is deliberately indifferent to caring for the emergency survives Prong 2 when we don't know whether the emergency was a medical need?

[00:29:37] Speaker 04:
So I think in response to that, I'll just point to again the description of the training video that says that when the button is pressed, someone will respond within seconds.

[00:29:46] Speaker 04:
I think that speaks to the gravity of how this button is treated.

[00:29:50] Speaker 04:
And I'll also just point to Velez, which is the Seventh Circuit case that we pointed to, which is one in which a button was pressed.

[00:29:57] Speaker 04:
And then there was a failure to respond to it.

[00:29:59] Speaker 04:
Again, there the defendant said, I don't know what's happening in the cell.

[00:30:04] Speaker 04:
How am I supposed to know what to respond to if I don't even know what happened?

[00:30:07] Speaker 04:
But then the court found that this failure to investigate, this failure to learn more, is actually what made it fatal for his defense, and that he ultimately was still held liable.

[00:30:16] Speaker 03:
This is consistent with Farmer and Footnote 8, which also talks about- What's your best 10th Circuit case for a clearly established law?

[00:30:23] Speaker 04:
Oh, sure.

[00:30:23] Speaker 04:
I mean, for there, I think Lance V. Morris also speaks to this.

[00:30:26] Speaker 04:
for the one defendant in which there was a qualified immunity granted, or they were ultimately found not to have violated the Constitution.

[00:30:34] Speaker 04:
The court mentioned three times that the issue was that he spoke to the plaintiff, and that there was no mention of medical symptoms, no mention of a need for medical attention.

[00:30:43] Speaker 04:
Here, DeHore did even less.

[00:30:44] Speaker 04:
He didn't even respond to the court even ascertaining that.

[00:30:48] Speaker 03:
You mentioned a few minutes ago something about another amended complaint.

[00:30:56] Speaker 03:
Yes.

[00:30:57] Speaker 04:
So to that, I was saying that currently pending before district court, it stayed because of the proceedings here happening in this room.

[00:31:06] Speaker 04:
But the court did request or order the plaintiff to amend the complaint.

[00:31:12] Speaker 04:
So I was just noting that it would be more appropriate to amend this for the allegations to be, for that amendment process to be followed through.

[00:31:22] Speaker 04:
It would be premature to grant qualified immunity at this stage.

[00:31:26] Speaker 04:
and that they should affirm the lower court's decision, because the lower court's decision, you know, now we know it's also anticipating an amended complaint as well.

[00:31:36] Speaker 03:
Well, okay, I think I heard you say two things.

[00:31:40] Speaker 03:
Remand for the district court to consider whether you can amend the complaint?

[00:31:47] Speaker 04:
I'm sorry, no, I'm saying remand for further proceedings, and the district court independently has this determined that they are going to seek leave, I mean, grant leave to amend.

[00:31:57] Speaker 04:
I hope that clarifies that, Your Honor.

[00:31:59] Speaker 03:
I'll have to think about that.

[00:32:01] Speaker 04:
Sure.

[00:32:01] Speaker 04:
No problem.

[00:32:02] Speaker 03:
Thank you.

[00:32:03] Speaker 03:
I do see you on my time.

[00:32:04] Speaker 03:
Thank you, Your Honor.

[00:32:05] Speaker 03:
Yes.

[00:32:06] Speaker 03:
All right.

[00:32:06] Speaker 03:
Our time has expired.

[00:32:08] Speaker 03:
Appreciate the arguments from both counsel this morning.

[00:32:12] Speaker 03:
The case will be submitted, and counsel will be excused.