[00:00:00] Speaker 03: Thank you so much. [00:00:02] Speaker 03: With that housekeeping matter taken care of, we'll have our first case this morning, which is 21-3198, Roe v. Church. [00:00:12] Speaker 03: Counsel for Appellant, if you'd make your appearance and proceed, please. [00:00:22] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:00:25] Speaker 00: My name is Elizabeth Bixby and I represent Plaintiff Appellant Logan Rowe. [00:00:29] Speaker 00: And before I begin, I'd like to reserve three minutes of my time for rebuttal. [00:00:34] Speaker 00: While Mr. Rowe was detained pre-trial at a Kansas detention center, a jail official spread a false rumor that Mr. Rowe was racist. [00:00:41] Speaker 00: In the jail context, spreading that kind of rumor is not only damaging, but downright dangerous. [00:00:47] Speaker 00: And indeed, that dangerous rumor led to Mr. Rowe being the victim of an attack and attempted sexual assault by two other detainees, during which time the detainees threatened to violently sexually assault Mr. Rowe with a broomstick and used racially charged language. [00:01:01] Speaker 00: Mr. Rowe was then completely denied. [00:01:03] Speaker 00: For two and a half months, mental health care for the debilitating PTSD he developed. [00:01:08] Speaker 00: PTSD so significant it caused him severe chest pain and tachycardia, caused him to develop psychosis and paranoia, and left him unable to sleep because he would lie in bed in fear, reliving the attack constantly throughout the day and night. [00:01:22] Speaker 00: Defendants denied Mr. Rowe his much-needed mental health care despite him repeatedly requesting such care, including every time he saw the defendants at the pod door and informing defendants that his need for care was, quote, critical and desperate, and that he was, in quote, extreme emotional distress. [00:01:38] Speaker 00: And when he grieved those denials of care, and then filed a complaint with an outside reporting agency when those grievances went nowhere, a jail official, Lieutenant Yoder, retaliated against him by throwing him in solitary confinement for two weeks and told the DA that Mr. Rowe was a troublemaker, leaving the DA to add criminal charges against him. [00:01:56] Speaker 00: The district court aired in dismissing all of Mr. Rowe's claims at the screening stage, before defendants had even been served. [00:02:02] Speaker 00: And it further aired by adding an atextual more-than-diminishment requirement to 1987 EE. [00:02:09] Speaker 00: and by finding that Mr. Rowe had not alleged any physical injury within the meaning of the statute, despite Mr. Rowe experiencing severe chest pains, being hit in the face by another detainee, and experiencing debilitating PTSD, which is a disease that causes tangible physical harm to the brain and the body. [00:02:24] Speaker 03: This is a very interesting case, and I have to figure out where to begin in addressing your recitation of his allegations. [00:02:34] Speaker 03: Let me just begin with a more [00:02:37] Speaker 03: a somewhat distinct point, and this relates to the state law claims. [00:02:41] Speaker 03: In the brief, there was reference to the fact that the sole basis the district court used in rejecting the state law claims was that they couldn't be brought under 1983. [00:02:55] Speaker 03: As I read the district court's order, the district court called out Mr. Rowe for not addressing that contention. [00:03:03] Speaker 03: In other words, that contention was made. [00:03:06] Speaker 03: You can't go forward because it's 1983. [00:03:08] Speaker 03: Mr. Rowe didn't address that. [00:03:10] Speaker 03: I looked at the response. [00:03:12] Speaker 03: Not much there. [00:03:13] Speaker 03: Why isn't that waiver? [00:03:14] Speaker 03: I mean, why do we even need to consider that issue now? [00:03:19] Speaker 00: So your honor is correct that the district court's sole basis was that state law claims can't be brought under 1983. [00:03:26] Speaker 00: No, that's not what I said. [00:03:27] Speaker 03: I said the sole basis was he didn't respond to the contention that they couldn't be brought under 1983. [00:03:34] Speaker 00: Well, so Mr. Rowe did not specifically address that, but I would posit to your honors that if, for example, defendants had been served and they had filed a motion to dismiss saying, the reason that you should dismiss this claim is because you can't bring it under 1983, it would have been air for the district court to dismiss on that basis, even if Mr. Rowe did not file a response, because it's just a plain [00:03:53] Speaker 00: you know, air of law. [00:03:55] Speaker 00: It is clear that, you know, these claims can be brought under the supplemental jurisdiction statute because they arise from a common nucleus of operative fact. [00:04:02] Speaker 03: We're called upon to reverse the district court. [00:04:05] Speaker 03: When we're called upon to reverse the district court, somebody should have told the district court that it was wrong, right? [00:04:13] Speaker 00: Well, I think the district court also has an obligation to be correct on the law. [00:04:17] Speaker 00: This wasn't a question that involved Mr. Rowe to say, to clarify something about the facts or the nature of his allegations. [00:04:22] Speaker 00: It was just, again, a very straightforward air of law. [00:04:25] Speaker 00: And again, Mr. Rowe below was a pro se incarcerated plaintiff. [00:04:29] Speaker 00: He specifically said that he did not have that. [00:04:30] Speaker 03: He had an obligation to address the allegations in the motion to show cause, right? [00:04:35] Speaker 03: The district court said you fail for x reason. [00:04:37] Speaker 03: And if you don't say not x, then there is a vacuum that is not being filled, right? [00:04:44] Speaker 00: That is correct, although again, I would say that this is something that was not within Mr. Rowe's specific knowledge. [00:04:51] Speaker 00: Again, as opposed to something about the allegations, this was something that the district court itself should have known. [00:04:55] Speaker 00: And again, Mr. Rowe was a pro se incarcerated plaintiff below. [00:05:00] Speaker 00: He specifically alleged in his complaint and his responses that he did not have access to a law library and that he didn't have the resources. [00:05:08] Speaker 00: And so I do think it is in contradiction of this court's [00:05:11] Speaker 00: Preston, Hall v. Belmont, and others where the court has said that a pro-state plaintiff cannot be faulted for confusing various legal theories, for failing to cite... We're supposed to give the liberal in interpreting the pro-state plaintiff's response. [00:05:25] Speaker 03: There was no response. [00:05:26] Speaker 03: So there was nothing to interpret. [00:05:29] Speaker 03: There was nothing to give liberal interpretation to. [00:05:32] Speaker 03: There was silence. [00:05:34] Speaker 03: Silence should be responded to as a positive averment. [00:05:38] Speaker 00: I don't think that's correct, especially with a pro se plaintiff. [00:05:41] Speaker 00: And again, it's not that just his response needs to be construed liberally. [00:05:44] Speaker 00: It's that his complaint also needs to be construed liberally. [00:05:47] Speaker 00: And by liberally construing his complaint, it is, again, quite clear under the law that his claims were appropriately brought under the supplemental jurisdiction statute. [00:05:57] Speaker 03: Okay, I've taken up enough time on that. [00:05:58] Speaker 03: Let me ask you a question about the physical injury requirement, and specifically focusing on what is, at least some courts have called this a more than de minimis standard. [00:06:12] Speaker 03: Would you agree with me that really, at least based upon our Johnson decision, that we're not talking about is it more than a trifle, we're talking about is it serious? [00:06:23] Speaker 03: I mean, Johnson speaks about you may need to go to a doctor. [00:06:27] Speaker 03: It speaks about you need to make an inquiry into duration. [00:06:32] Speaker 03: It seems to me that the use of the more than de minimis language actually is more confusing than helpful. [00:06:37] Speaker 03: So what I'm saying is, do you agree that really what we're in is a zone of imposing a severity, heightened severity standard on a physical injury requirement? [00:06:47] Speaker 00: I agree, Your Honor. [00:06:48] Speaker 00: That is what the circuits who have imposed this more than de minimis standard are sort of in the threshold of. [00:06:54] Speaker 00: And that's very similar to what the Supreme Court addressed in Muldrow, which we addressed in our 28-J letter there. [00:07:00] Speaker 00: It was a heightened severity or heightened threshold of harm for a Title VII statute. [00:07:05] Speaker 00: And the Supreme Court said, you can't impose this atextual extra requirement, because doing so is to add words to the statute that Congress enacted and to oppose an extra requirement on a plaintiff that the statute does not require. [00:07:16] Speaker 03: Okay, you anticipated my next question on mold growth. [00:07:19] Speaker 03: That's good. [00:07:20] Speaker 03: But let's move on then to the question of what is it that is the alternative? [00:07:25] Speaker 03: In other words, what do you conceive to be the characteristics of a physical injury requirement that would be satisfied? [00:07:34] Speaker 03: And as an example, I'll give an example that's appeared in the case law. [00:07:38] Speaker 03: Would it be enough that there is a paper cut? [00:07:41] Speaker 03: Would that be sufficient for a physical injury requirement? [00:07:45] Speaker 00: So I think because this is an undefined term, I think the correct interpretation of it is to look at the ordinary public meaning at the time the PLRA was enacted, and that would be bodily harm or hurt. [00:07:55] Speaker 00: That would be what the Blacks definition would be, and I think that's an appropriate definition. [00:07:59] Speaker 00: I do think that [00:08:02] Speaker 00: Technically, a paper cut could count, but I think this court doesn't really need to reach that or be concerned about that because a paper cut claim is going to be screened out on the merits of the case. [00:08:13] Speaker 00: They would not be able to state an Eighth Amendment claim just for a single paper cut. [00:08:18] Speaker 03: Whoa, whoa, whoa, no. [00:08:19] Speaker 03: I mean, that's dodging the issue. [00:08:20] Speaker 03: The issue is we have to decide what this means. [00:08:23] Speaker 03: We have to decide what the content of physical injury means. [00:08:27] Speaker 03: I can't push this down the road and say, oh, you know, it's going to be screened out. [00:08:30] Speaker 03: The question is, is it legally, you know, I don't care what happens whether it gets screened out, is it legally within the zone of what would be a physical injury for purposes of getting compensatory damages if you got across the finish line? [00:08:44] Speaker 03: That's the question that we're asked to ask that is posed to us. [00:08:48] Speaker 03: And if I got to answer it, you got to answer it. [00:08:50] Speaker 00: Yes, no, I understood, Your Honor. [00:08:51] Speaker 00: And so, yes, I would say that a paper cut would count. [00:08:55] Speaker 00: But if Your Honors were concerned about sort of the floodgates that that could open, my response to that would be that such claims would be screened out on the merits long before 1987 EE would do any work. [00:09:06] Speaker 00: Because, of course, this is a statute that only comes into play when it comes to determining what damages are appropriate. [00:09:11] Speaker 00: It doesn't prevent nominal or punitive damages. [00:09:13] Speaker 00: It doesn't prevent adjunctive relief, declaratory relief. [00:09:16] Speaker 00: And so you only really [00:09:18] Speaker 00: look to what work the statute does by the timer at the damages, you know, determining what damages are appropriate. [00:09:24] Speaker 03: Okay, bear with me a second. [00:09:26] Speaker 03: What I'm trying to anticipate is a decision tree if you win or if you lose on this issue. [00:09:31] Speaker 03: I'll give you the, if you win our decision tree and you help me point, tell me where I'm wrong. [00:09:38] Speaker 03: What I would see that you would need to do is this. [00:09:41] Speaker 03: we would need to do or a court we need to do. [00:09:43] Speaker 03: One, analyze what legal claims actually are viable, okay, first. [00:09:49] Speaker 03: Then we determine applying the physical injury requirement [00:09:54] Speaker 03: which ones would be eligible for compensatory damages, or we would let the district court do that, and then we would proceed in that manner. [00:10:01] Speaker 03: In other words, no matter what happens, we have to look at these claims and say, what is the operative universe of claims that are going to be at issue here? [00:10:09] Speaker 03: In other words, did the district court err on these claims, or did it not? [00:10:13] Speaker 03: We would look at the physical injury requirement, which, as I said, assumes that you want on that, which means that there's a different operative lens, and we would either apply that lens ourself or we would remain to have the district court apply it. [00:10:28] Speaker 03: Does that make sense? [00:10:29] Speaker 00: Yes, I have no disagreement with that framework, Your Honor. [00:10:32] Speaker 03: Well, then the last part of that was an alternative, which was [00:10:36] Speaker 03: remand to the district court or apply that proper test ourselves. [00:10:42] Speaker 03: Which one do you think is most appropriate? [00:10:45] Speaker 00: I think this court does need to address the more than de minimis requirement because the district court, you know, did conclude that a more than de minimis injury is required. [00:10:53] Speaker 00: I also think this court needs to address the district court's belief that you can't have a physical injury that sort of stems from an emotional or mental injury. [00:11:02] Speaker 03: I am sorry, perhaps it wasn't clear. [00:11:05] Speaker 03: I understand that we need to look at the physical injury requirement as a matter of law and determine whether the court erred in that, determine whether PTSD perhaps is included. [00:11:19] Speaker 03: My question then is, as it relates to that universe of claims that we said are viable, should we go and look at them and apply that new test? [00:11:30] Speaker 03: In other words, should we say, okay, here's the test, that more than de minimis requirement is wrong, here's the right test, and as it relates to the injuries that the plaintiff claims in these viable claims, you can get compensatory damages? [00:11:45] Speaker 00: Yes, I think given the sort of dearth of case law and sort of confusion in the district courts, I think it would be helpful for this court to sort of, you know, set out the correct legal framework and then address the injuries alleged here because the district court had already addressed them. [00:11:58] Speaker 00: But if this court preferred, you know, I think it could also just set out the appropriate legal framework, correct the district court's misunderstanding about PTSD, and then remand for this court to reconsider the alleged injuries in light of the correct legal framework. [00:12:11] Speaker 01: You're not complaining that the slap in the face was the physical injury, are you? [00:12:17] Speaker 00: I think that is a physical injury. [00:12:18] Speaker 00: I don't think that it is a more than de minimis physical injury, but I think it was not raised in the district court. [00:12:24] Speaker 00: That's correct. [00:12:25] Speaker 00: I think, again, given that he was pro se below and what this court is required to do under Hall v. Belmont, I think this court should have taken that into account. [00:12:34] Speaker 00: And in fact, at an earlier stage, did mention the SLAP, but did not consider it when it was analyzing 1987 EE. [00:12:42] Speaker 02: Counsel, can I ask about the PTSD and the physical injury inquiry? [00:12:49] Speaker 02: The way I understand your argument is, you know, setting aside the de minimis aspect to it is that because Mr. Rose suffered from chest pains and other changes to his bodily structure, like his brain structure, cellular structure, hormones change because that sort of manifests from PTSD, then that [00:13:07] Speaker 02: is the physical injury for purposes of the statute. [00:13:10] Speaker 02: First of all, do I have that part right? [00:13:12] Speaker 02: Yes, that's correct. [00:13:13] Speaker 02: Okay, so why wouldn't that be true of every DSM disorder that when it comes to changes in the brain structure and hormone levels that are symptomatic of the mental illness itself? [00:13:25] Speaker 02: In other words, if we were to say that were true, wouldn't every mental health disorder now fall under or sort of cast aside the statutory exception because [00:13:35] Speaker 02: you can prove that there are some physical changes that manifest as a result of a mental health disorder. [00:13:41] Speaker 00: You know, potentially, I just don't have that knowledge as to things like depression or anxiety. [00:13:45] Speaker 00: I think it's just very clear that as to PTSD, we have this sort of documented change to the brain, the atrophying of the brain, the change to the DNA, which accelerates cellular aging, which may lead to premature death and things like that. [00:13:58] Speaker 00: And then the chest pains, I would say, are a little bit of a separate thing. [00:14:01] Speaker 00: You know, the severe chest pains, this court has already held in MADA and C-Lock that those can be a physical injury. [00:14:06] Speaker 02: And I don't know that, you know, for example- Yeah, but the chest pains in MADA came from a heart attack. [00:14:09] Speaker 00: That is correct, but this court was actually very clear to, you know, spell out or sort of separate the two because defendant's argument was that she had not alleged a physical injury because the heart attack, she couldn't show causation, but they sort of caused the heart attack. [00:14:24] Speaker 00: And they said, you know, short of the heart attack, she can't show that she suffered a physical injury. [00:14:27] Speaker 00: And this court said no. [00:14:28] Speaker 00: The physical injury is the severe chest pain she suffered in sort of the lead up to the heart attack. [00:14:33] Speaker 00: It didn't say chest pain only counts when it's a result of, or when it's sort of a precursor to a heart attack. [00:14:40] Speaker 02: So in other words, you think we would narrow our analysis to PTSD only and we shouldn't be worried about what I think could be an expansive reading of an opinion that would say anytime you can show physical changes or manifestations that are symptoms of the mental health disorder, then this statutory exemption doesn't apply. [00:14:58] Speaker 00: And I just don't have that sort of knowledge when it comes to other mental health disorders. [00:15:02] Speaker 00: I just think PTSD, there is sort of that clear scientific literature showing, again, the brain atrophy and things like that. [00:15:10] Speaker 00: But if this court was worried about that, it could leave for another day that question as it did in white and say that Mr. Rowe had sufficiently alleged physical injury based on the severe chest pains alone or based on the severe chest pains as well as the slap to the face. [00:15:24] Speaker 00: And I see that my time has expired. [00:15:25] Speaker 00: Thank you, Your Honors. [00:15:39] Speaker 04: May it please the court. [00:15:42] Speaker 04: Your honor, we're here about a case involving a fight over a remote that was swiftly broken up by prison officials, and that this fight over a remote allegedly resulted in injuries such as a racing heart rate, anxiety, sweating palms, and a state of hypervigilance. [00:16:00] Speaker 04: And plaintiff is here claiming that those meet the specific [00:16:06] Speaker 04: physical injury requirement that Congress specifically enacted to limit the amount of frivolous claims regarding almost impossible to prove claims about emotional distress. [00:16:19] Speaker 02: I don't think it's that limited, counsel. [00:16:21] Speaker 02: I mean, he was diagnosed with PTSD by a mental health provider that the jail provided to him, right? [00:16:26] Speaker 02: That's the allegation, and I [00:16:28] Speaker 02: But at this point we have to accept it. [00:16:30] Speaker 02: So he has PTSD that he was diagnosed from a mental health provider and then given treatment, I think even medication for it. [00:16:36] Speaker 02: So I don't think this is just that he felt nervousness because of the incident. [00:16:39] Speaker 02: So I think that maybe understates a little bit what he's alleged, right? [00:16:44] Speaker 04: If you look at what's actually alleged in the amended complaint, those are the physical symptoms that he alleges. [00:16:49] Speaker 04: Chest pain, racing heart, anxiety, sweating palms, and state of hypervigilance. [00:16:54] Speaker 04: And if you look at the appellant's brief, that's actually what's in their brief as well as the physical injuries they identified. [00:17:00] Speaker 03: No it isn't. [00:17:01] Speaker 03: They list three. [00:17:02] Speaker 03: They list the PTSD, they list the slapping, they list the chest pain. [00:17:08] Speaker 03: The slapping is listed in their appellate brief. [00:17:10] Speaker 03: So that's in there. [00:17:12] Speaker 03: They're claiming those three. [00:17:13] Speaker 03: Do you deny that those are in their brief? [00:17:16] Speaker 04: Those three are in your brief, Your Honor, but in addition to what I also said is in their brief as well. [00:17:20] Speaker 03: Well, you said only. [00:17:22] Speaker 03: Use the word only. [00:17:23] Speaker 03: If those things are in there, they're claiming that those physical injuries took place. [00:17:28] Speaker 03: And as it relates to the remote, the fight, as he alleges it, was because of the rumor about him being a racist. [00:17:36] Speaker 03: Was it not? [00:17:37] Speaker 03: It wasn't whether they could change and watch some different channel on TV. [00:17:41] Speaker 04: The factual allegations in the amending complaint are specifically that the fight arose when the other inmate, Mr. Cooks, requested that plaintiff provide him the remote. [00:17:52] Speaker 04: And when plaintiff refused, that is when the fight broke out. [00:17:56] Speaker 03: And does it not also speak to the notion that there was a rumor in the prison [00:18:01] Speaker 03: that he was a racist and his belief, at least certainly as litigated here, that the reason why the reaction to the remote was generated by that rumor. [00:18:17] Speaker 04: Your Honor, he may allege that as a conclusory that that was the cause. [00:18:21] Speaker 03: He alleges that, and if it is a fact, then we're supposed to accept these facts, well-pleaded facts, for purposes of our analysis, right? [00:18:28] Speaker 03: It doesn't help to put them aside or diminish them. [00:18:32] Speaker 03: Why don't you engage them? [00:18:33] Speaker 04: Your Honor, our position would be that that [00:18:37] Speaker 04: conclusory allegation that that was the cause is not consistent with the underlying facts that he alleged about the actual timeline. [00:18:45] Speaker 04: The initial alleged rumor was actually specifically communicated to Mr. Cooks. [00:18:52] Speaker 01: There was a general speculative allegations are insufficient. [00:18:59] Speaker 04: Yes, Your Honor. [00:19:00] Speaker 04: That's exactly what we're saying. [00:19:02] Speaker 04: And that if you look at the actual facts that are not just conclusory, not just his speculation, the actual facts are the alleged comment about the plaintiff being racist was made to Mr. Cooks. [00:19:17] Speaker 04: Mr. Cooks then informed the plaintiff [00:19:19] Speaker 04: There were no issues alleged that day. [00:19:22] Speaker 04: There were no issues alleged in the week or two weeks up until the fight broke out. [00:19:27] Speaker 04: And then the facts are that there was no animosity or issue until the issue with the remote arose. [00:19:36] Speaker 04: And in fact, most of the comments that were made [00:19:43] Speaker 04: Plaintiff's not even alleged that Mr. Cooks referenced the rumor. [00:19:48] Speaker 04: In fact, he referenced Plaintiff's alleged white friends, but he mostly referenced Plaintiff's alleged homosexuality. [00:19:56] Speaker 03: He referenced race, though, right? [00:19:58] Speaker 04: He did reference race, Your Honor. [00:19:59] Speaker 03: And to the extent that race would be rumor, I mean, is it not the case that supposedly the plaintiff and Mr. Hook Cook got along prior to the spreading of the rumor? [00:20:15] Speaker 04: Per the allegations... I believe that's true, Your Honor, but I also say that based off the facts that's pled, they got along until plaintiff refused to hand over the remote. [00:20:24] Speaker 04: And I understand this goes to just one argument of causation. [00:20:29] Speaker 04: In addition to all the physical injury, there's also the deliberate indifference piece of all of this, which is none of the named defendants, it's only a defendant Doe that's alleged to have made this comment to Mr. Cooks that allegedly created this rumor about plaintiff. [00:20:46] Speaker 03: Am I mistaken that [00:20:48] Speaker 03: The plaintiff supposedly told, I think, certain jail officials, perhaps Lieutenant Yoder being among them, that he was concerned about the rumor and that he was concerned about the implications of that. [00:21:00] Speaker 04: Yes, he did tell the other named officers about that. [00:21:04] Speaker 04: But a lot of the arguments the plaintiff makes are about the starting of that rumor creating the risk and references case lines about inmates being labeled snitches and how that can create a deliberate indifference. [00:21:18] Speaker 04: And I just wanted to point out that that was the reference, the allegations regarding that, which frankly appears to be most of what is in plaintiff's brief, is that [00:21:30] Speaker 04: that that person that made that rumor who's not even identified should have known that this would happen. [00:21:37] Speaker 04: But that's not the standard under the deliberate indifference. [00:21:39] Speaker 03: Well, even putting that aside, focusing on the standard for deliberate indifference, if I go to you and I tell you that I'm concerned that there's a rumor out there irrespective of who [00:21:48] Speaker 03: spread that rumor, but it was an official who spread it, Doe, that I was a racist. [00:21:54] Speaker 03: I'm concerned about how that impacts my safety. [00:21:58] Speaker 03: And you don't do anything about it. [00:22:00] Speaker 03: Why aren't we in the zone of deliberate indifference? [00:22:05] Speaker 03: And what is your response to that? [00:22:07] Speaker 04: My response would be, Your Honor, that it's not clear what, if anything, that plaintiffs allege that the defendant should have done. [00:22:18] Speaker 04: The claim that they did nothing isn't true because right after the slap, deputies were immediately in the room and broke up any further confrontation. [00:22:26] Speaker 04: And in fact, there's no allegation that there's been any other physical confrontation or any other physical harm that plaintiff has suffered from another inmate due to this. [00:22:36] Speaker 03: So I don't... I apologize. [00:22:38] Speaker 03: Maybe I'm wrong then. [00:22:39] Speaker 03: I thought that there was a separate incident that occurred in the hallway. [00:22:43] Speaker 03: when the plaintiff was with Cooks again, and he was attacked in 90 seconds, right? [00:22:49] Speaker 04: He was not physically attacked. [00:22:51] Speaker 04: He was just, I think, hostile words were exchanged. [00:22:56] Speaker 04: And again, those words were related to plaintiff's alleged homosexuality by Mr. Cooks. [00:23:02] Speaker 04: Obviously, we don't have a position on that. [00:23:03] Speaker 04: And again, that was 90 seconds. [00:23:06] Speaker 03: 90 seconds is a long time when somebody's coming after you, isn't it? [00:23:12] Speaker 04: It could be, but there's no evidence that there was actually any physical aggression or there's allegations of physical aggression. [00:23:17] Speaker 01: It was just a threat, wasn't it? [00:23:19] Speaker 04: It was just a threat, Your Honor. [00:23:21] Speaker 04: And that arose out of, frankly, a mistake, but not a deliberate and different mistake. [00:23:27] Speaker 04: There was no any facts indicating that the officers were hoping that, knew that there was this risk and were hoping that something would happen or something along those lines. [00:23:39] Speaker 03: There were no facts. [00:23:39] Speaker 03: Is that what I understand you to be saying? [00:23:41] Speaker 04: There are no, that was our argument, there's no well-pleaded facts showing that that's plausible that there was a deliberate indifference to put those two together when they shouldn't have been. [00:23:52] Speaker 03: In fact, the short- How about the flag in the system that said they shouldn't be together? [00:23:57] Speaker 03: Why isn't that a fact? [00:23:59] Speaker 04: Because it's not only should the prison official known, it's did they actually know. [00:24:06] Speaker 04: That's the standard that's set forth in Farmer. [00:24:08] Speaker 03: Very clearly... I thought there were allegations that he did know that flag was in there. [00:24:15] Speaker 04: I think there may be allegations that... [00:24:18] Speaker 04: he should have been aware of it or that existed. [00:24:22] Speaker 04: But I think the other facts that it was only for a short time, they reacted to it, they in fact apologized and said it was a mistake later, all that cuts strongly across any plausibility that this was an intentional decision that they acknowledged the risk and they accepted it. [00:24:41] Speaker 04: And again, oh. [00:24:43] Speaker 03: If I may, let me focus on switch to the PLRA physical injury requirement argument. [00:24:50] Speaker 03: Mr. Rose submitted the supplemental authority regarding Muldrow and I want to understand your perspective on that supplemental authority in particular on the notion that [00:25:05] Speaker 03: at least one could argue that the more than de minimis standard, putting aside questions about the language of that, the more than de minimis standard creates a severity add-on that is not in the text of the statute, and that Moldro would tell us, [00:25:24] Speaker 03: that such severity add-ons or significance add-ons are not appropriate and they are not consistent with the appropriate interpretation of statutes. [00:25:36] Speaker 03: So the question is, putting a fine point on it, how does Muldrow inform our understanding of the PLRA and in particular the more than de minimis standard? [00:25:50] Speaker 04: I don't think it adds significantly. [00:25:51] Speaker 04: First of all, Mojero, as the court is obviously aware, is a Title VII case. [00:25:58] Speaker 04: And the previous standard required a significant or substantial or something along those lines. [00:26:05] Speaker 04: All the courts that have applied the more than de minimis standard have made clear that it's not requiring a significant injury or anything of that nature as was being required in Title VII context. [00:26:17] Speaker 03: And didn't we just say in Johnson in describing our prior case law that it included things that would require you to get medical treatment? [00:26:27] Speaker 03: We need to do an inquiry into the duration of the harm. [00:26:31] Speaker 03: Those things seem pretty darn significant to me. [00:26:34] Speaker 03: I mean, tell me, you mean that the more than de minimis standard has not correlated with significant injury? [00:26:39] Speaker 03: Is that your position? [00:26:41] Speaker 04: That would be my position, Your Honor. [00:26:42] Speaker 04: In fact, I believe if you look at the circuits that have looked at this, [00:26:48] Speaker 04: For example, the Harris, the 11th Circuit, specifically said, the physical injury must be more than de minimis, but need not be significant. [00:26:59] Speaker 03: And how do you square that with the language in Johnson that describes what that prior case law says? [00:27:04] Speaker 03: And we're bound by Johnson. [00:27:05] Speaker 03: So in Johnson's interpretation of that case law, so how do you square that conclusion that you've reached with the Johnson language? [00:27:15] Speaker 04: I believe that the Johnson language wasn't necessarily the Johnson language because the court found in Johnson that the standard had been met. [00:27:30] Speaker 04: I'm not sure how significant that portion of it was because the Johnson case, the court found pretty easily that even though it was not what I would consider or what [00:27:44] Speaker 04: the defendant argued were significant injuries, the court still found that it would have met the more than de minimis standard. [00:27:49] Speaker 04: So I think if you look at Johnson as a whole, I don't believe that that necessarily controls. [00:27:56] Speaker 04: And I think those are things that the court just might look at when deciding if it's more than de minimis. [00:28:00] Speaker 04: And I go back to the definition of de minimis, which is more than trifling, more than trivial, of legal significance. [00:28:07] Speaker 04: This is not [00:28:09] Speaker 03: And, okay, more than trifling. [00:28:11] Speaker 03: Well, a slap, which is one of the allegations here. [00:28:15] Speaker 03: Do you believe that's trifling? [00:28:20] Speaker 04: No, I would, Your Honor, in this case, because there's no allegation that any injury actually resulted from that slap. [00:28:26] Speaker 01: Well, Counsel, the slap was not raised in the District Court, was it? [00:28:31] Speaker 04: It was not. [00:28:31] Speaker 04: In fact, the entire argument regarding the de minimis issue was not raised in the District Court. [00:28:36] Speaker 04: In fact, [00:28:37] Speaker 04: the plaintiff went to great lengths to say that he had more than met the more than de minimis standard. [00:28:42] Speaker 04: In fact, he referenced it several times and never once indicated that he believed that a lesser showing would meet his requirement. [00:28:50] Speaker 04: So we do believe that argument has been a way to begin with. [00:28:53] Speaker 04: But going back to the issue of [00:28:58] Speaker 04: What does more than de minimis mean? [00:29:00] Speaker 04: I think the court has to look at the statute as a whole. [00:29:03] Speaker 04: Plaintiff wants to just focus on the physical injury, but that's not all the statute says. [00:29:07] Speaker 04: The statute specifically draws a distinction between physical injuries and mental or emotional injuries. [00:29:13] Speaker 04: And I think that when the courts have looked at this, they're trying to distinguish, okay, what's a physical injury and what's a mental injury? [00:29:19] Speaker 04: Because the line is not always clear. [00:29:21] Speaker 04: We talk about pain. [00:29:22] Speaker 04: Well, we all know about emotional pain, mental pain, and physical pain. [00:29:25] Speaker 04: How do we draw that distinction? [00:29:27] Speaker 04: Well, we require there to be a more than de minimis, more than trivial, just legal significance, just something, not a high burden, but just something, [00:29:35] Speaker 04: to show that it's actually physical in nature. [00:29:38] Speaker 03: And is it your view that that's the way the courts have interpreted what more than de minimis means? [00:29:43] Speaker 03: That it just has to be something, something minor, more than minor? [00:29:47] Speaker 04: That would be my argument, Your Honor. [00:29:49] Speaker 04: I think that what the courts have looked at has been a dry shave was one thing the court found. [00:29:56] Speaker 03: How about the bruised ear for three days in one of those cases? [00:30:00] Speaker 03: He had been injured, and that's minor? [00:30:05] Speaker 04: Your Honor, I think that might be right on the borderline. [00:30:08] Speaker 04: And I could certainly see arguments both ways. [00:30:11] Speaker 04: But in this case, there's nothing even arising to that. [00:30:14] Speaker 04: There's just pure allegations of pain. [00:30:17] Speaker 03: And if you look at the White case... Well, he claims that he was slapped. [00:30:21] Speaker 03: And he claims that he had chest pain. [00:30:24] Speaker 03: and he claims that he had PTSD, and we've had arguments that that causes harm. [00:30:30] Speaker 03: Let me ask you, though, quickly on this question of textualist interpretation. [00:30:35] Speaker 03: What do we do with the fact that there's another part of the PLRA that has the qualifier serious in it, serious physical injury? [00:30:43] Speaker 03: Well, Congress knows how to add the qualifier serious when it intends to do so. [00:30:48] Speaker 03: That qualifier doesn't exist in the portion that we're talking about, right? [00:30:52] Speaker 04: It does not, Your Honor. [00:30:53] Speaker 03: And what do we do with that? [00:30:55] Speaker 04: I think Your Honor can say that there's a significant and a gulf of difference, in fact, between a de minimis, more than de minimis, and significant. [00:31:04] Speaker 04: I think most injuries would probably fall within that gap. [00:31:10] Speaker 04: And I apologize, I'm out of time, Your Honor. [00:31:12] Speaker 03: No, thank you, Counsel. [00:31:13] Speaker 04: Thank you. [00:31:14] Speaker 03: Thank you for your fine arguments. [00:31:17] Speaker 03: The case is submitted.