[00:00:00] Speaker 04:
The next case up for argument is Vasquez-Garcia versus Santurian, docket 25-2007.

[00:00:06] Speaker 04:
Council, we are ready for you when you're ready to proceed.

[00:00:13] Speaker 02:
May it please the Court?

[00:00:14] Speaker 02:
Claire Saunders, representing Appellant Sandra Vasquez-Garcia.

[00:00:17] Speaker 02:
I'd like to attempt to reserve three minutes for rebuttal, please.

[00:00:22] Speaker 02:
The question in this case is whether Ms.

[00:00:24] Speaker 02:
Vasquez-Garcia's complaint is consistent with an accrual date for her Eighth Amendment claims

[00:00:29] Speaker 02:
that places the filing of the complaint within the statute of limitations?

[00:00:33] Speaker 02:
The answer to that question is yes for two reasons.

[00:00:37] Speaker 02:
First, Ms.

[00:00:38] Speaker 02:
Vasquez Garcia's complaint is consistent with the theory that a reasonable person in her position would not have known that she suffered a constitutionally salient injury until she received appropriate medical care outside of prison.

[00:00:50] Speaker 02:
Her claims are therefore timely under traditional accrual principles.

[00:00:57] Speaker 02:
Ms.

[00:00:58] Speaker 02:
Vasquez Garcia's complaint can be understood to allege a continuing violation that went on from essentially the day she entered, she was incarcerated until the day that she was released.

[00:01:09] Speaker 02:
Her complaint filed three years after her release is therefore timely under the continuing violation doctrine.

[00:01:14] Speaker 04:
How much of this is objective or subjective?

[00:01:17] Speaker 04:
In other words, do we look at it from a reasonable person in her position while in prison or do we look particularly at what she knew and thought?

[00:01:26] Speaker 02:
So I think it's an objective standard, Your Honor.

[00:01:28] Speaker 02:
It's a reasonable person in her position.

[00:01:30] Speaker 02:
But I think it's important that we have to take the allegations in the complaint on their face in the light most reasonable to Ms.

[00:01:36] Speaker 02:
Vasquez-Garcia.

[00:01:37] Speaker 02:
So I think the district court's error was to draw inferences against the complaint and assume that a reasonable person in Ms.

[00:01:44] Speaker 02:
Vasquez-Garcia's position would have known things that we just can't assume that she would have known.

[00:01:49] Speaker 04:
Does it cut both ways?

[00:01:50] Speaker 04:
In other words, you have to allege an Eighth Amendment violation, which requires

[00:01:55] Speaker 04:
a lot, and yet the accrual cuts the other way.

[00:02:00] Speaker 04:
I didn't know them very much.

[00:02:01] Speaker 02:
So I mean, I do think there's sort of an inherent tension here, which is that the standard for making out an Eighth Amendment claim is very, very high.

[00:02:07] Speaker 02:
So you can say, Your Honor, a reasonable person in the plaintiff's position wouldn't have known that they had suffered an Eighth Amendment violation.

[00:02:15] Speaker 02:
And that does set the bar relatively high when they have to actually approve facts

[00:02:23] Speaker 02:
established a claim for relief, and I just think that's an inherent tension here.

[00:02:27] Speaker 04:
What did the district court do wrong in that regard?

[00:02:31] Speaker 02:
As to the objective versus subjective analysis.

[00:02:36] Speaker 04:
Yes, and what we're talking about.

[00:02:38] Speaker 02:
So I think the district court took the allegations of the complaint and drew inferences against it.

[00:02:45] Speaker 02:
I have a list of four things that I think the complaint simply does not allege and that the district court, I think, assumed that a reasonable person in Ms.

[00:02:54] Speaker 02:
Vasquez-Garcia's position would have known, but that we shouldn't assume that.

[00:02:57] Speaker 02:
So the complaint doesn't allege that Ms.

[00:03:00] Speaker 02:
Vasquez-Garcia was informed of her diagnoses in real time.

[00:03:03] Speaker 02:
The complaint doesn't allege that she understood the care that she should have been receiving.

[00:03:09] Speaker 02:
The complaint doesn't allege that Ms.

[00:03:12] Speaker 02:
Vasquez-Garcia understood the care she actually received, and the complaint also, of course, doesn't allege that Ms.

[00:03:18] Speaker 02:
Vasquez-Garcia understood the defendant's mental state.

[00:03:22] Speaker 05:
Counsel, if the inquiry is an objective one, and understanding the complaint doesn't really discuss at all what Ms.

[00:03:30] Speaker 05:
Vasquez-Garcia, what information she received or knew or what she thought, but I think part of the points the defendants are making is that

[00:03:38] Speaker 05:
Any reasonable person who knows they're having these types of symptoms would know that once they bring it to the attention.

[00:03:48] Speaker 05:
of the medical professionals at the facility that they're not getting what it is that they should be getting.

[00:03:55] Speaker 05:
I mean, just at a basic level.

[00:03:57] Speaker 05:
So what's your response to that?

[00:03:58] Speaker 02:
So my response to that, Your Honor, is the distinction between acute and chronic conditions like diabetes.

[00:04:03] Speaker 02:
I agree.

[00:04:03] Speaker 02:
If Ms.

[00:04:04] Speaker 02:
Vasquez-Garcia had been stabbed or had a hernia or something, I think there are instances like that in the case law where she was choking.

[00:04:10] Speaker 02:
It's pretty clear to your average layperson what appropriate medical care looks like under those circumstances.

[00:04:16] Speaker 02:
I think the issue here and the problem with the defendant's argument is that the nature of Ms.

[00:04:20] Speaker 02:
Vasquez Garcia's injuries was just such that a reasonable person in her position may not have understood what appropriate care looks like.

[00:04:29] Speaker 02:
I think there are people walking down the street today who probably have diabetes and don't really know what it means to have appropriate care for that when insulin is appropriate, when it's not.

[00:04:37] Speaker 02:
those sorts of things.

[00:04:39] Speaker 05:
And so is that also responsive to their argument that the complaint, they say, is a series of discrete acts compared with your argument towards a continuing violation?

[00:04:50] Speaker 02:
Right, exactly, Your Honor.

[00:04:52] Speaker 02:
And on the continuing violation point, I mean, I think Herrera really sort of solves this problem.

[00:04:57] Speaker 02:
In Herrera, this court said that the

[00:05:01] Speaker 02:
The plaintiff suffered their injury the moment that their access to water was cut off because of someone else's failure to pay the bill.

[00:05:08] Speaker 02:
I just don't think the nature of the allegations in this complaint are such that they can be, again, construed in the light most favorable to Ms.

[00:05:15] Speaker 02:
Vasquez-Garcia.

[00:05:17] Speaker 02:
Any individual allegation could be understood in that way.

[00:05:20] Speaker 02:
So a failure to provide a diabetic diet on one day or even for a month, would that give rise to an Eighth Amendment violation or could have plausibly caused her injuries?

[00:05:29] Speaker 02:
I don't think so, Your Honor.

[00:05:31] Speaker 03:
Well, she knew that she was supposed to have a special diet, right?

[00:05:37] Speaker 03:
I mean, the complaint does allege that she understood that she was supposed to have a special diet and she also understood that she wasn't getting a special diet.

[00:05:47] Speaker 03:
Right then, doesn't she have information that would indicate that they are failing to provide

[00:06:03] Speaker 03:
to an Eighth Amendment level.

[00:06:06] Speaker 03:
Is amendment passed?

[00:06:09] Speaker 02:
So I think what the complaint alleges is that even a non-medical professional would have understood that she needed a special diabetic diet.

[00:06:18] Speaker 02:
What the complaint doesn't say anything about is what Ms.

[00:06:21] Speaker 02:
Vasquez-Garcia understood about the food that she was receiving as opposed to the food that she should have been receiving.

[00:06:26] Speaker 02:
We don't know, for example.

[00:06:28] Speaker 03:
Well, she said it was no different.

[00:06:30] Speaker 03:
The complaint says she recognized that the food she was getting was no different than a regular diet.

[00:06:37] Speaker 03:
Am I misremembering?

[00:06:39] Speaker 02:
I don't think that the complaint says that Ms.

[00:06:41] Speaker 02:
Vasquez Garcia understood that they were the same.

[00:06:44] Speaker 02:
I think the complaint just alleges, as a matter of fact, they were essentially the same.

[00:06:48] Speaker 02:
And I realize that's not ideal wording, but I think giving someone who's diabetic a piece of cake for dessert

[00:06:57] Speaker 02:
versus giving them a fruit cup where the fruit is soaked in corn syrup.

[00:07:02] Speaker 02:
For someone who's diabetic, those two things might actually be equally harmful, but a reasonable person in her position may not have understood that those were equally harmful diets to her.

[00:07:12] Speaker 05:
Counsel, what about the allegation the complaint?

[00:07:14] Speaker 05:
I think it's in June of 2020 that she experienced vision loss and pain in her right eye.

[00:07:20] Speaker 05:
And then it says in July of that same year, she told the medical staff her eye was, quote, very painful and she had difficulty seeing.

[00:07:27] Speaker 05:
And we have case law that talks about extreme pain as being a triggering point for an Eighth Amendment violation.

[00:07:33] Speaker 05:
Why wouldn't that allegation trigger an accrual?

[00:07:34] Speaker 02:
So I think that allegation doesn't trigger an accrual for a couple of reasons.

[00:07:40] Speaker 02:
One, I think there isn't the appropriate causal link to the defendant's mens rea, essentially.

[00:07:48] Speaker 02:
Two, I think that series of allegations, Ms.

[00:07:51] Speaker 02:
Vasquez-Garcia began to experience vision symptoms, and she was prescribed eye drops that were

[00:08:00] Speaker 02:
essentially to relieve dry eye.

[00:08:02] Speaker 02:
So I think, again, with a 30,000 foot view with perfect hindsight, any reasonable person would say, well, if you're experiencing vision loss and you have diabetes and all these other comorbidities, it's probably not an issue of dry eye.

[00:08:18] Speaker 02:
But the complaint doesn't say that Ms.

[00:08:20] Speaker 02:
Vasquez Garcia understood that that was what she received.

[00:08:26] Speaker 02:
She could have

[00:08:27] Speaker 02:
totally thought that the drops were of the right sort.

[00:08:34] Speaker 03:
Also, I believe... If she reports a serious medical condition that rises to the level of an Eighth Amendment violation, and the prison does absolutely nothing,

[00:08:49] Speaker 03:
despite her reporting this serious medical condition, that she would be on notice that she has a claim, because we have plenty of cases that doing nothing is enough.

[00:09:02] Speaker 01:
I'm sorry, Your Honor, could you please repeat that question?

[00:09:07] Speaker 03:
Yes, my question is, if she reports a serious medical condition that would qualify under the eighth amendment,

[00:09:16] Speaker 03:
And the prison does absolutely nothing in response.

[00:09:22] Speaker 03:
Isn't that enough to fulfill the mens rea requirement knowledge portion also?

[00:09:29] Speaker 03:
Because we have plenty of case law that says doing nothing meets the mens rea requirement.

[00:09:36] Speaker 02:
Yes, Your Honor.

[00:09:37] Speaker 02:
I wonder if you're referring to Vasquez.

[00:09:41] Speaker 02:
I think I essentially agree with you, but I would say we need to also know that Ms.

[00:09:45] Speaker 02:
Vazquez-Garcia understands the nature of

[00:09:49] Speaker 02:
that the plaintiff in that case would understand the nature of the injury they were suffering.

[00:09:52] Speaker 02:
So in Vasquez, the sort of rock bottom place where the court said the claim must have accrued was when the defendant A, had been told that the injury he was suffering could kill him, and then B, when a document produced in discovery showed that a medical professional sat down with the plaintiff, explained his illness and the appropriate treatment protocol at length to him, and he confirmed he understood.

[00:10:19] Speaker 02:
The court also referenced the fact that the plaintiff in that case later submitted grievances stating that he, quote, needed the treatment.

[00:10:27] Speaker 02:
And I believe there were two grievances in that case.

[00:10:29] Speaker 02:
So I think, yeah, I'll stop there.

[00:10:33] Speaker 05:
Counsel, on the accrual date, I think in your reply brief, excuse me, you said that we can't even determine the date now.

[00:10:43] Speaker 05:
But what facts would be needed to determine the accrual date?

[00:10:46] Speaker 02:
So I think Mallett, the Second Circuit's decision in Mallett is very helpful here.

[00:10:50] Speaker 02:
I think we need to know what the medical providers told her and when they told her.

[00:10:55] Speaker 02:
And when they told her that.

[00:10:56] Speaker 05:
So that's why you need discovery?

[00:10:57] Speaker 02:
Yes, that's right.

[00:10:58] Speaker 05:
Well, there's also a lot of discussion that's triggered around her release date, May 7th.

[00:11:03] Speaker 05:
And of course, the defendants say it was actually May 5th.

[00:11:07] Speaker 05:
And why does the release date matter?

[00:11:10] Speaker 02:
So Your Honor, for purposes of the traditional accrual analysis, I think the release date is not relevant.

[00:11:17] Speaker 02:
The release date is only relevant to the continuing violation theory.

[00:11:21] Speaker 02:
And I understand that there's a dispute of fact here, but we're at the motion to dismiss posture.

[00:11:27] Speaker 02:
And the district court correctly recognized that those disputes aren't appropriate to resolve in the motion to dismiss posture.

[00:11:35] Speaker 04:
With it being the continuing

[00:11:38] Speaker 04:
theory is you say, what was the last act that would qualify under that?

[00:11:43] Speaker 02:
So I think the complaint alleges that each of the defendants had an essentially uninterrupted duty to give Ms.

[00:11:52] Speaker 02:
Vasquez-Garcia appropriate medical care.

[00:11:54] Speaker 02:
And that lasted from the day that she got to the facility until the day that she left.

[00:11:59] Speaker 02:
And so I think the

[00:12:02] Speaker 02:
The last act is just going to be the failure to administer appropriate care on the day that she was released.

[00:12:09] Speaker 05:
But the last time that I believe she was saw, I won't get this timing right, it certainly was not alleged to be the date of release and isn't reasonable.

[00:12:17] Speaker 05:
And as you know, that date matters a lot for the statute of limitations, potentially.

[00:12:23] Speaker 05:
And so is it reasonable to read the complaint to say that she would have been receiving medical care the day that she walks out of the facility and not just going through out-processing?

[00:12:34] Speaker 02:
Your honor, I think it is, and again, for two reasons.

[00:12:37] Speaker 02:
One, this is, again, a complex chronic condition that needs to be treated every day.

[00:12:40] Speaker 02:
This isn't a broken arm where you cast it, and that's barring some bizarre series of circumstances.

[00:12:46] Speaker 02:
That's it.

[00:12:47] Speaker 02:
And then I apologize.

[00:12:49] Speaker 02:
I said there were two things, and now I don't.

[00:12:50] Speaker 02:
Oh, I apologize.

[00:12:52] Speaker 02:
I'll stop there.

[00:12:53] Speaker 02:
I see that I'm cutting into my rebuttal time, so I'll reserve the rest of my time for rebuttal.

[00:12:57] Speaker 00:
Very well.

[00:12:58] Speaker 02:
Thank you.

[00:13:01] Speaker 00:
Good morning.

[00:13:01] Speaker 00:
May it please the court.

[00:13:02] Speaker 00:
My name is James Gribble.

[00:13:03] Speaker 00:
I represent the Centurion Defendants.

[00:13:05] Speaker 00:
I'm also speaking on behalf of all the defendants in this case.

[00:13:08] Speaker 00:
The defendants, Centurion and Wexford, provided medical services through a contract with the New Mexico Department of Corrections to inmates in correctional facilities, including Ms.

[00:13:18] Speaker 00:
Vasquez-Garcia, and Summit Food provided the food.

[00:13:23] Speaker 00:
This appeal presents a statute of limitations question that can be resolved on the face of the complaint.

[00:13:29] Speaker 00:
Ms.

[00:13:29] Speaker 00:
Vasquez-Garcia pleads

[00:13:32] Speaker 00:
dates that she was injured, specific dates starting in 2019.

[00:13:36] Speaker 00:
And the case authority in this circuit is specifically cited under Herrera as well as Alexander and Hammer.

[00:13:46] Speaker 00:
The relevant date is the date the plaintiff knows that she was injured.

[00:13:52] Speaker 00:
The plaintiff does not need to understand the full consequences of that injury.

[00:13:57] Speaker 00:
It's the date of injury itself.

[00:14:00] Speaker 00:
So I'm going to intend to make three points today.

[00:14:02] Speaker 00:
First, under this court's decision, Herrera, the accrual date is based on the injury.

[00:14:09] Speaker 00:
Second, under Fernandez, if the complaint pleads sufficient facts to demonstrate that the acts took place outside the limitations period, the district court should and really must dismiss the complaint.

[00:14:26] Speaker 00:
Second, the complaint is a

[00:14:28] Speaker 00:
47 page 138 detailed chronological description that affirmatively pleads knowledge of Miss Vasquez Garcia note that says that she was injured.

[00:14:44] Speaker 00:
And third, the completed violation doctrine does not apply in this case.

[00:14:49] Speaker 00:
As Herrera set forth,

[00:14:51] Speaker 00:
The continuous violation doctrine may apply in a case where there's an ongoing series of events that in and of themselves do not give rise to a cause of action, but put together cause injury.

[00:15:07] Speaker 00:
That's not what we have in this case.

[00:15:08] Speaker 03:
Now, I understand that plaintiff is trying to... Let me interrupt for a minute on Herrera.

[00:15:14] Speaker 03:
I see Herrera as very different.

[00:15:16] Speaker 03:
In Herrera, all of the injury was caused when they shut off the water.

[00:15:22] Speaker 03:
And the subsequent event that he was trying to argue to extend the time was, I asked you to turn it back on.

[00:15:33] Speaker 03:
And the city said no.

[00:15:35] Speaker 03:
His injury did not change at all based on those subsequent requests because his full injury

[00:15:44] Speaker 03:
was they shut off this wire.

[00:15:48] Speaker 03:
This is a different situation.

[00:15:50] Speaker 03:
We have a situation here where the argument is we have crime conditions that aren't being treated or are being treated with disregard for a period of time that is causing additional injury.

[00:16:11] Speaker 03:
Can you tell me why that's not an important distinction?

[00:16:15] Speaker 00:
Your Honor, respectfully, I would assert that the chronic conditions of the diabetes with Ms.

[00:16:22] Speaker 00:
Vasquez Garcia pleads that she came into the prison with.

[00:16:26] Speaker 00:
The conditions that arose are sequelae.

[00:16:29] Speaker 00:
They are symptoms.

[00:16:31] Speaker 00:
She reports visual problems in June of 2020, again in September.

[00:16:39] Speaker 00:
She says she's seeing floaters.

[00:16:40] Speaker 00:
She goes to the medical providers and reports that.

[00:16:44] Speaker 00:
She then reports that she's got eye pain and she's got blurry vision again in 2020.

[00:16:50] Speaker 00:
At that point, Wexford is the provider.

[00:16:54] Speaker 00:
She's then saying that she has kidney disease, but all of these are flowing from the initial

[00:17:00] Speaker 00:
If we're saying the trigger is that she had untreated diabetes, these are all symptoms flowing from that.

[00:17:09] Speaker 00:
And if you look at Herrera and the other cases, the focus is on when is the date of injury.

[00:17:15] Speaker 00:
It's not the date of the ongoing symptoms of that injury.

[00:17:20] Speaker 05:
Well, counsel, doesn't that cut against you?

[00:17:22] Speaker 05:
the fact that her intake into the facility showed that she had several conditions that are chronic, diabetes, thyroid disorder, blood pressure issues, and so when we're looking at is there a serious medical condition that occurred, and typically we'll see cases where there's a hard and fast injury, it's just whether it's serious enough, but here

[00:17:46] Speaker 05:
Plaintiff is alleging that the baseline when she walked into the facility was she has all these conditions.

[00:17:52] Speaker 05:
And over time, there may be flare-ups and symptoms.

[00:17:56] Speaker 05:
And then it sort of details the reaction or the response and or non-response of the medical professionals.

[00:18:05] Speaker 05:
So I guess, how does the fact that she checked in with these chronic conditions help your argument

[00:18:12] Speaker 05:
that there was something that happened during that time that would have given rise to a constitutional injury that occurred.

[00:18:19] Speaker 00:
So, Your Honor, she did report pain.

[00:18:24] Speaker 00:
She had sensitivity in her eyes.

[00:18:26] Speaker 00:
She reported temporary blindness.

[00:18:29] Speaker 00:
At that point, I think a reasonable individual would know

[00:18:33] Speaker 00:
Something's going on here.

[00:18:35] Speaker 00:
Whether she knew it was constitutional or not.

[00:18:37] Speaker 05:
But that's the difference maybe also between knowledge of a symptom and an injury and, as counsel phrased it, the causation, the constitutional, the legal injury, that there's deliberate indifference towards that condition.

[00:18:52] Speaker 00:
So, Your Honor, this case is not a traditional procedural posture.

[00:18:58] Speaker 00:
As noted in the New Mexico Department of Corrections motion to dismiss on page two, it notes that Ms.

[00:19:06] Speaker 00:
Vasquez Garcia filed a state law claim on August 12, 2021, three months after she was released from prison.

[00:19:16] Speaker 00:
I will also note, it's not on the record, but I think if the court were to inquire, I think you could take judicial notice, that in that state law complaint,

[00:19:27] Speaker 00:
allegations the eighth cause of action and the ninth cause of action, Ms.

[00:19:32] Speaker 00:
Vasquez-Garcia alleges intentional infliction of emotional distress as well as conspiracy.

[00:19:37] Speaker 00:
So she's alleging, we know that in April of, in August of 2021, Ms.

[00:19:45] Speaker 00:
Vasquez-Garcia is alleging a mens rea, a mens rea, frankly, I think higher than deliberate indifference, that she was being punished by the individuals.

[00:20:00] Speaker 00:
Your Honor, I think if you look at the reasoning in Vasca in Herrera and how it treated Shomo, Shomo decided a continuous violation can be attributed to an ongoing chronic disease.

[00:20:19] Speaker 00:
Herrera didn't really adopt that.

[00:20:22] Speaker 00:
Herrera says, look, we look at each case by case, and we look at what's being alleged, and we really focus on

[00:20:29] Speaker 00:
Is there an instance that we can pin the statute of limitations to?

[00:20:33] Speaker 00:
Is there a date certain?

[00:20:35] Speaker 00:
And in this case, I would assert that the date certain is starting in July and September of 2019, when she reports this insurance.

[00:20:45] Speaker 00:
I also note that

[00:20:47] Speaker 00:
Plaintiff in the reply brief at footnote seven says that the continuing violation doctrine would not apply to the providers who were not there at the time.

[00:20:57] Speaker 00:
That's not clarified.

[00:20:59] Speaker 00:
That certainly would be centurion because they left as pleaded in the complaint in October of 2019.

[00:21:05] Speaker 00:
And Summit Foods, the only allegations against Summit Foods are that they didn't provide the prescribed medical diet, which was only prescribed in February and August of 2019.

[00:21:21] Speaker 00:
As to Wexford, the last allegation is that Ms.

[00:21:26] Speaker 00:
Vasquez Garcia was diagnosed with stage four kidney disease.

[00:21:32] Speaker 00:
on February 22, 2021.

[00:21:34] Speaker 03:
So that's... But does it allege that she was notified of that diagnosis?

[00:21:44] Speaker 03:
And as I read the brief, it seemed to be the argument was there's no allegations on the face of the complaint that she was aware of that.

[00:21:52] Speaker 00:
Judge McHugh, you're correct.

[00:21:53] Speaker 00:
It does not allege that she knew.

[00:21:56] Speaker 00:
But that goes back to my point of that's why I think

[00:21:59] Speaker 00:
the court, because otherwise if the court's looking at sort of chronic diseases and when an inmate should know when or objectively when that person is a cause of action, it becomes problematic.

[00:22:12] Speaker 00:
If we're basing it on a release date, some inmates are in prison for long periods of time.

[00:22:19] Speaker 00:
Some never get out of prison.

[00:22:21] Speaker 00:
So the problem with plaintiff's argument is that we're allowing her essentially to get out of prison and talk to a lawyer to understand the complete nature of her.

[00:22:35] Speaker 03:
I think the problem here is that we're on a 12b6 and not a 56 because you could go out and find someone at the prison who told her

[00:22:51] Speaker 03:
that she had stage four kidney disease on a specific date.

[00:22:55] Speaker 03:
And I think you have a very good argument.

[00:22:58] Speaker 03:
Their claim was triggered that day.

[00:23:01] Speaker 03:
And in that way, the case reminds me, you cite Vasquez versus Davis.

[00:23:07] Speaker 03:
But in that case, they denied 12b6.

[00:23:12] Speaker 03:
And it was after a summary judgment was entered that it came to us.

[00:23:19] Speaker 03:
And the combination of this being a 12b6 and her statute of limitations being an affirmative defense, which she has no burden.

[00:23:30] Speaker 03:
to establish in her complaint makes, in my view, your position more difficult.

[00:23:37] Speaker 00:
Judge McHugh, to respond to the 12b6, yes.

[00:23:40] Speaker 00:
Plaintiff did not have the burden to plead the facts regarding the defendant's affirmative defense, but she chose to do so.

[00:23:49] Speaker 00:
She did plead facts that she was injured in 2019.

[00:23:55] Speaker 04:
But with it being 12b6, she's got to plead herself out of court, essentially on the statute of limitations.

[00:24:01] Speaker 04:
And you say she pleaded these facts, but everything in the complaint, we interpret in her favor.

[00:24:08] Speaker 04:
And so now we're having to do some gymnastics.

[00:24:11] Speaker 04:
It just seems like Rule 56 is a much smoother express way than trying to negotiate every turn and some sharp turns for every complaint allegation.

[00:24:25] Speaker 04:
and then plugging them in for what an objectively reasonable person would think with 20% of the important facts that we might want to know.

[00:24:35] Speaker 04:
That's my issue as well.

[00:24:38] Speaker 04:
Are you here too early?

[00:24:39] Speaker 00:
Understood, Your Honor.

[00:24:41] Speaker 00:
I also would just point the court to paragraph 140 of the complaint wherein, you know, and this is in regards to the continuous violation, plaintiff asserts that she had four separate harms.

[00:24:52] Speaker 00:
And she's attributing those harms to prior allegations in the complaint at prior dates.

[00:24:58] Speaker 00:
And so I understand the court's concern.

[00:25:01] Speaker 00:
But again, we are here in a posture where plaintiffs had additional information.

[00:25:07] Speaker 00:
This isn't a bare bones complaint.

[00:25:09] Speaker 00:
This is a very detailed complaint.

[00:25:12] Speaker 00:
And I think that's what's different.

[00:25:14] Speaker 00:
I understand it's different than Davis procedural or Vasquez versus Davis procedurally, but substantively the number of allegations, if you assume what plaintiff is pleading is true, she knew she was injured.

[00:25:27] Speaker 05:
But it says nothing about what she knew or what she was told.

[00:25:32] Speaker 00:
As to some of the things, Judge Federico, I agree in terms of what's in the medical records, but I don't think she can conceivably argue that she didn't know that she was having visual problems, because the only way that would get into the medical record is if Ms.

[00:25:46] Speaker 00:
Tusk is there.

[00:25:47] Speaker 05:
Sure, that may be true.

[00:25:48] Speaker 05:
But again, as we've discussed, to have an accrual of an Eighth Amendment claim, it's kind of a high bar.

[00:25:55] Speaker 05:
And it may be, as my co-panelists have pointed out, that on summary judgment, the records will show that she was told all of these things and explained what they meant.

[00:26:06] Speaker 05:
But in the complaint, just beyond her saying vision loss and explaining some pain in her eyes in particular, you mentioned a moment ago, I thought that you said July of 2019, there was something that happened.

[00:26:21] Speaker 05:
That would trigger a cruel, but I guess I miss what it was because again, I'm looking at the complaint and you're right.

[00:26:27] Speaker 05:
It's very detailed, but it says nothing about what she knew or was told.

[00:26:31] Speaker 05:
It shows what she experienced judge.

[00:26:36] Speaker 05:
Okay.

[00:26:36] Speaker 05:
It doesn't say what she was told.

[00:26:38] Speaker 05:
Okay.

[00:26:38] Speaker 05:
So what is it about?

[00:26:40] Speaker 05:
And again, I may have missed her July of 2019.

[00:26:43] Speaker 00:
It was June of 2019, I apologize.

[00:26:46] Speaker 00:
Is that the blurred vision?

[00:26:47] Speaker 00:
At blurred vision at 43, paragraph 46 is she saw the two air bubbles.

[00:26:52] Speaker 00:
Paragraphs 52 and 55, she's reporting that she had worsening vision and eye pain.

[00:26:57] Speaker 00:
She's also saying that she should have been given Avastin injections and she wasn't taken for Avastin injections, so at that time she would have known that she wasn't getting the treatment that she asked for.

[00:27:08] Speaker 00:
Essentially, I'm equating deliberate indifference with punitive damages.

[00:27:13] Speaker 00:
You can cite what plaintiff is trying to do is separate and saying this constitutional claim is somehow separate from the negligence claims.

[00:27:21] Speaker 00:
You cannot have deliberate indifference to medical treatment without the underlying at least medical negligence.

[00:27:28] Speaker 00:
And I think that separates it from a more generalized, more nebulous due process violation that someone doesn't know.

[00:27:35] Speaker 00:
She knew she was injured.

[00:27:36] Speaker 00:
The extent of the injury is not relevant.

[00:27:40] Speaker 00:
And she's pleaded that she knew she was injured as early as June 2019.

[00:27:46] Speaker 00:
Thank you for your time.

[00:27:53] Speaker 04:
Any further questions?

[00:27:55] Speaker 04:
All right.

[00:27:55] Speaker 04:
Thank you, counsel.

[00:27:56] Speaker 04:
Thank you.

[00:28:03] Speaker 02:
Your Honor, the questioning so far has revealed that you understand our theory of the case.

[00:28:07] Speaker 02:
So I'll just try to be brief and just make a few points.

[00:28:10] Speaker 02:
First, I just want to reaffirm.

[00:28:12] Speaker 02:
It seems like you understand the injury alleged here is not a physical injury.

[00:28:16] Speaker 02:
The injury alleged here is a constitutional injury.

[00:28:18] Speaker 02:
And of course, one of the predicates for that is a physical injury.

[00:28:21] Speaker 02:
But the ultimate injury or the legally actionable injury is constitutional here.

[00:28:27] Speaker 02:
I also agree that the real issue here is that we're here in a 12b6 posture and not a rule 56 posture.

[00:28:33] Speaker 02:
We're asking the court, I think, actually for fairly limited relief, which is just the opportunity to take some discovery.

[00:28:38] Speaker 02:
And then defendants, I think, can essentially renew or may be able to renew many of these arguments again.

[00:28:43] Speaker 02:
in a summary judgment posture.

[00:28:45] Speaker 02:
So I just wanted to emphasize, I think, how limited the relief that we are actually asking for is.

[00:28:51] Speaker 02:
Judge McHugh, I just actually wanted to go back to your question.

[00:28:54] Speaker 02:
I believe earlier you asked me whether if a plaintiff, Ms.

[00:28:58] Speaker 02:
Vasquez-Garcia, or someone else delivered in different context reports what they understand to be a serious injury, and then the prison does absolutely nothing about it.

[00:29:09] Speaker 02:
I just wanted to clarify that my answer to that question is in that case, yes, they would be, their claim would have accrued under those circumstances.

[00:29:17] Speaker 02:
I think I sort of misunderstood or talked around your question and I just wanted to come back to that briefly.

[00:29:23] Speaker 02:
Lastly, I just wanted to say that just to emphasize, I think the district court and defendants would like it to be the case that Twombly and Iqbal apply to affirmative defenses.

[00:29:32] Speaker 02:
and they simply don't.

[00:29:34] Speaker 02:
Under this court's case in Bistline v. Parker, the question is just whether there is a conceivable set of facts that is consistent with this complaint that places the filing of the complaint within the statute of limitations.

[00:29:47] Speaker 02:
I think the answer to that question is yes.

[00:29:49] Speaker 02:
If the court has no further questions, I'll cede the balance of my time.

[00:29:54] Speaker 02:
We ask the court to reverse.

[00:29:55] Speaker 02:
Thank you.

[00:29:56] Speaker 04:
Thank you, counsel.

[00:29:56] Speaker 02:
Thank you.

[00:29:58] Speaker 04:
Counselor excused.

[00:29:59] Speaker 04:
The case is submitted.

[00:30:00] Speaker 04:
Thank you for your arguments.