[00:00:02] Speaker 00: Case number 12-5205, Lacey L. Williams, Appellant v. Barack Hussein Obama, President, Administration, Individual, and Official Capacity at L. Mr. Capehart for the Appellant. [00:00:13] Speaker 00: Mr. Birch for the Appellate. [00:00:32] Speaker 04: This Court has confirmed three times in this case that Mr. Williams should be allowed to proceed in form of operas because his complaint adequately alleges that he is in imminent danger of serious physical injury for purposes of the sole exception to Section 1915G's three-strikes rule. [00:00:53] Speaker 04: There is no sound reason for the court to depart from those rulings now, especially because this court has already held that its prior order crediting Williams's allegations is law of the case. [00:01:02] Speaker 04: But should the court choose to review the sufficiency of those allegations again, they independently require reversal of the district court's decision, because Williams's claims of prolonged and systematic neglect of his chronic health problems by prison officials fit comfortably within the boundaries of what it means to be an imminent danger under this court's precedence. [00:01:18] Speaker 03: So those prior orders were just IFP on appeal? [00:01:22] Speaker 04: Yes, Your Honor. [00:01:23] Speaker 04: One was IFP on appeal, on his direct appeal. [00:01:25] Speaker 04: The other was IFP in his mandamus. [00:01:27] Speaker 03: In the mandamus. [00:01:28] Speaker 03: So they're not technically, those orders did not technically resolve the question of whether IFP was appropriate in the district court. [00:01:37] Speaker 03: I understand you're saying the same standard applies, but just as a matter of law of the case doctrine, that doesn't dictate that the result in the district court. [00:01:48] Speaker 04: We think that in this case, it most likely does, Your Honor, because the district court was not addressing whether, or excuse me, I'm sorry, this court was addressing specifically whether Mr. Williams was entitled to proceed under the imminent danger exception. [00:02:01] Speaker 04: That is a pure question of law, and it's the same question that the district court has to apply. [00:02:05] Speaker 03: Now, if our standard of review, though, were [00:02:09] Speaker 03: anything other than de novo were deferential to the district court, then theoretically, we could conclude that IFP was appropriate on appeal, but that a reasonable district court could go either way on that and could have come out the other way. [00:02:24] Speaker 04: Well, I think that's partly correct, Your Honor. [00:02:26] Speaker 04: Of course, the district court retains discretion. [00:02:29] Speaker 04: to grant or deny IFP relief, except in this case, where we think that the question would not be subject to the district court's discretion, because the sole question is whether that given a danger exception has been satisfied. [00:02:42] Speaker 04: And that is a pure question of law. [00:02:44] Speaker 04: And it's one that this court must review to know who, and I think that it's one that would bind the district court at any stage. [00:02:49] Speaker 04: you know, whether the district court retains discretion to grant or deny IFP relief more generally, I think is a separate question than whether Mr. Williams is entitled to relief under the imminent danger question. [00:03:00] Speaker 03: Why would we treat that as a de novo review though? [00:03:03] Speaker 03: It seems like a mixed question and you could go, and I know some mixed questions do get de novo review and some do not, but why would this be one that [00:03:13] Speaker 03: gets de novo review rather than recognize the district court closer to the facts of the case. [00:03:19] Speaker 03: And I realize you're going on the complaint, but still closer to the facts of the case. [00:03:23] Speaker 03: Why wouldn't we be deferential? [00:03:24] Speaker 04: Well, I think because the question is ultimately one of statutory interpretation. [00:03:28] Speaker 04: It's whether Mr. Williams's complaint or the allegations in his complaint fit within the definition of imminent danger as construed in that statutory text. [00:03:37] Speaker 04: So yes, I think there would be an element of discretion, say, in the IFP inquiry more generally. [00:03:43] Speaker 04: But with respect to this single question of law, this question of whether his allegations fit within the imminent danger framework, I think that that is a pure legal ruling that necessarily would be entitled to de novo review. [00:03:54] Speaker 04: I don't think that there's necessarily a mixed question or much of a mixed question there at all. [00:04:00] Speaker 03: Just on our second order, which you point out both sides recognize, which recognize that the district court could go either way on this issue. [00:04:10] Speaker 03: I mean, one way to look at that is that that was confused. [00:04:15] Speaker 03: Another way to look at it is that contemplated that the district court did have some discretion to go a different way from how the appellate court, our court, had gone on the IFP on appeal status. [00:04:25] Speaker 04: Well, Your Honor, we wouldn't presume to tell the court what it meant in that order. [00:04:29] Speaker 04: We think that whatever it meant, it could not have superseded or otherwise done away with the court's prior finding that Mr. Williams was entitled to imminent danger relief. [00:04:37] Speaker 04: And if there were any doubt on that question, we think that the court's later order, the August 2013 order, resolved it, making clear that that purely legal ruling was law of the case. [00:04:47] Speaker 02: What muddies it up is that there was a period of time when these cases were coming down [00:04:55] Speaker 02: where some cases indicated that a mandamus petition was not covered by the statute because it talks about a cause of action and appeal and the mandamus was neither one and there were a couple orders that we issued during this [00:05:13] Speaker 02: contemporaneously stating that mandamus wasn't covered by the three strikes provision. [00:05:20] Speaker 02: And there's a case that came down right after or right before one of these orders. [00:05:24] Speaker 02: But anyway, tell me, when we said in that January 4th order that the court takes no position on whether he has to prepay fees, [00:05:38] Speaker 02: The way I look at that is that we have case law saying that whether somebody's in imminent danger depends on what the situation was at the time their case is filed in the district court. [00:05:51] Speaker 02: That's right. [00:05:52] Speaker 02: And the whole point of the January 4, 2012 order was that requiring the district court to file the case. [00:06:02] Speaker 02: The district court hadn't filed the case. [00:06:04] Speaker 02: That's right. [00:06:05] Speaker 02: So we couldn't have made a determination about the [00:06:10] Speaker 02: imminent danger in the January 4th order for no other reason. [00:06:17] Speaker 02: The case hadn't been filed and it may well have been that his situation had changed. [00:06:21] Speaker 02: But I take your point to be that the situation didn't change. [00:06:27] Speaker 02: The complaint was still the same. [00:06:28] Speaker 02: The allegations were still the same. [00:06:30] Speaker 02: when it got filed in the district court. [00:06:33] Speaker 02: So the district court was looking at exactly the same thing that our court looked at. [00:06:37] Speaker 04: That's correct, Your Honor. [00:06:39] Speaker 04: And I think that's sort of the interesting part about this case, is that the core document, the core universe of evidence that both the district court and this court could look at to determine Mr. Williams' entitlement to relief hasn't changed. [00:06:52] Speaker 04: And it hasn't changed since he initially tried to file it. [00:06:54] Speaker 02: But it could have. [00:06:55] Speaker 02: It could have changed. [00:06:56] Speaker 02: And if it had changed, then the district court was not bound by the whatever ruling we made since the lynching. [00:07:04] Speaker 04: I think that's right. [00:07:05] Speaker 04: If it had changed, it might have been a different question. [00:07:07] Speaker 04: But the point here is that today it did not. [00:07:09] Speaker 04: And that the same allegations of imminent danger have underwritten this case from the very beginning. [00:07:14] Speaker 04: So yes, I mean, the January 4th order says what it says, but it certainly could not have unwound this court's prior determination that the imminent danger allegations in Mr. Williams's complaint were sufficient for relief under 1915-G. [00:07:27] Speaker 04: And I think that's sort of the, that's kind of, I mean, that is effectively dispositive in this case, we think, because again, it would be truly anomalous for this court now for a fourth time to say, based on the same information, [00:07:40] Speaker 04: and the same complaint and the same allegations of imminent danger in the same case, that Mr. Williams suddenly, for no reason for a change in the record, no longer qualifies for this relief. [00:07:49] Speaker 04: And we think that the court can either base it in terms of law of the case, or if it's not inclined to do so, it should at least keep that in mind, that it would be an anomaly for the court to now change its position. [00:08:03] Speaker 03: It's dispositive, I'm going back to where I was, but it's dispositive if the standard of review is de novo. [00:08:09] Speaker 03: not necessarily if it's deferential. [00:08:11] Speaker 03: That's why I've been focused on the standard of review. [00:08:15] Speaker 03: No, and I take your point, Your Honor, but I think... But I understand your arguments then about why it's de novo, so I take those arguments. [00:08:22] Speaker 04: But if the Court isn't inclined to decide this on the law of the case grounds, we think that the District Court's judgment still must be reversed because Mr. Williams's allegations independently indicate that he is entitled to relief under the imminent danger of exception as construed in this Court's precedence. [00:08:42] Speaker 04: For example, Mr. Williams alleges that he suffers from type 1 insulin-dependent diabetes, and that he's been denied access to a diabetic dietician as well as an endocrinologist. [00:08:53] Speaker 04: He also alleges that he's been put into solitary confinement, but that he has been denied access to adequate medical care, and that prison officials have interfered with that care and with his meals that are arranged pursuant to special dietary needs. [00:09:10] Speaker 05: Let me ask you though, Mitchell requires, our Mitchell decision requires a whole lot of detail. [00:09:16] Speaker 05: Now you just said it required an endocrinologist. [00:09:20] Speaker 05: Is that in any of his allegations? [00:09:22] Speaker 05: Who he's seen, what they've advised, what hasn't been done? [00:09:26] Speaker 05: I got the impression from his. [00:09:29] Speaker 04: I don't think that it's in his complaint, Your Honor, but at the same time I don't necessarily think that Mitchell requires it to be in his complaint. [00:09:34] Speaker 05: Why not? [00:09:35] Speaker 04: Well, in this court, in Mitchell, this court made clear that what it was looking for was enough from the prisoner in order for the court to infer, at least in the context of chronic diseases, that the prisoner had a chronic disease and that prison officials had failed to treat it. [00:09:48] Speaker 04: Now, yes, it discussed sort of the contrast between Mr. Mitchell's complaints in that case and other cases. [00:09:54] Speaker 05: But I mean, we're not doctors. [00:09:55] Speaker 05: And if somebody says, I have hepatitis, that may be a disease that we all recognize needs to be treated. [00:10:02] Speaker 05: And if he also says, and they won't even listen to me, and this is happening to me, and so forth. [00:10:08] Speaker 05: But a lot of the stuff that he's got in his complaint, you know, I don't know whether [00:10:16] Speaker 05: Well, but I think that section... What type of treatment's needed and he didn't tell us what type of treatment was needed and what he'd been denied? [00:10:23] Speaker 04: Sure, but I think it's important to remember that section 1915G is not supposed to be a difficult bar for relief. [00:10:29] Speaker 04: That the prisoner is not supposed to be required to put through or to produce [00:10:34] Speaker 04: substantial amounts of evidence in order to show that he is under imminent danger. [00:10:38] Speaker 04: This is a threshold ruling that at bottom simply determines whether a prisoner is able, must file, or excuse me, must pay a court's docking fee upfront all in one lump sum or over time according to section 1915's payment scheme. [00:10:51] Speaker 04: So to require so much detail from a prisoner in his complaint, in his initial document filed with the court, we think is not necessarily consistent with section 1915g or really with this court's precedents. [00:11:03] Speaker 04: I think in Mitchell, this court also made clear that the imminent danger allegations would not be subjected to a heightened pleading standard, that they would be measured against the same sort of general and very permissive [00:11:13] Speaker 04: notice-pleading standard applicable to all pro se prisoners. [00:11:16] Speaker 04: So I think that the question is, has Mr. Williams alleged enough to allow this court to infer that he, one, suffers from a serious medical condition? [00:11:25] Speaker 04: I think that that's fairly clear. [00:11:27] Speaker 04: And also that he's been denied adequate treatment. [00:11:30] Speaker 04: And we think that that also is clear. [00:11:32] Speaker 04: Now, yes, he could have added more information, but we don't think that that's necessary in order to meet such a low bar for relief. [00:11:41] Speaker 04: So in addition to [00:11:46] Speaker 04: So I think it's, I'm sorry, let me step back. [00:11:50] Speaker 04: The government at no point explains why Mr. Mitchell's, excuse me, Mr. Williams's allegations are insufficient under this court's precedent. [00:12:00] Speaker 04: And instead of explaining why under existing law, the government takes the, the government instead argues that the court should adopt a new standard for imminent danger relief that takes into account the likelihood that his underlying claims will succeed on the merits [00:12:14] Speaker 04: and the degree to which his imminent danger allegations are connected to those claims. [00:12:20] Speaker 04: And we think there are at least three problems with that argument. [00:12:22] Speaker 04: The first I've already mentioned is that Mitchell does not require any special pleading burden at the imminent danger stage. [00:12:28] Speaker 04: It's supposed to be a very low bar for relief. [00:12:30] Speaker 04: And second, considering the merits of Mr. Williams' claims at this preliminary stage would be at odds with the PRA's structure and its text, [00:12:38] Speaker 04: And every other circuit that is considered whether to look at the merits at the imminent danger stage has expressly rejected that idea, specifically because it is such a low bar for relief. [00:12:49] Speaker 04: And we think that it's telling that the only support that the government cites for its merits inquiry at the imminent danger stage is Thomas. [00:12:57] Speaker 04: But Thomas is wholly inaccurate. [00:12:58] Speaker 04: First, Thomas did not involve the imminent danger exception at all. [00:13:04] Speaker 04: So that's strike number one. [00:13:05] Speaker 04: But second, and perhaps most important, all this court said in that case was that where an appeal has been dismissed, has been previously dismissed, this court would not reinstate it without some showing that the appeal would not be frivolous. [00:13:20] Speaker 04: But that hasn't happened in this case. [00:13:21] Speaker 04: No court has looked at Mr. Williams' allegations, and no court has dismissed his complaint. [00:13:27] Speaker 02: I've looked at them. [00:13:32] Speaker 04: Well, I appreciate that, Your Honor, but what I mean is that no court has actually... I don't mean his allegations are hard. [00:13:38] Speaker 02: I don't mean that. [00:13:40] Speaker 02: I mean, the gist of the complaint is he wants the President of the United States to investigate the North Carolina prison. [00:13:48] Speaker 02: Where does he get the authority for that? [00:13:51] Speaker 04: Well, I appreciate your position, Your Honor, but also he does state a claim under the Freedom of Information Act that, as the government acknowledges, is not patently frivolous. [00:14:00] Speaker 04: So I don't think that at this stage it would be right for the Court to assess the... Yeah, but there has to be a nexus, it seems to me, between [00:14:07] Speaker 02: the allegation of imminent danger on the one hand, and the relief sought in the complaint, doesn't there? [00:14:17] Speaker 02: I mean, you can't, a prisoner can't come in and say, I'm in imminent danger because, [00:14:23] Speaker 02: There's somebody down the cell block who's out to get me, and then he brings a complaint, and the complaint is that the food is no good in the prison. [00:14:33] Speaker 02: I mean, that doesn't work, does it? [00:14:35] Speaker 02: There has to be a nexus. [00:14:37] Speaker 04: Well, we don't think so at the imminent danger stage. [00:14:40] Speaker 04: First, we note that there's no support for such a nexus requirement in the statutory text. [00:14:44] Speaker 04: But also, and perhaps more important, imposing one in this case would be inconsistent with this court's decision in Ibrahim. [00:14:49] Speaker 04: where the court there granted imminent danger relief with respect to all of Mr. Ibrahim's claims, including his First Amendment claim, or excuse me, even including his pre-exercise claim, on the basis of imminent danger allegations relating to improper treatment of hepatitis C and prostate cancer. [00:15:03] Speaker 04: Now, clearly, those imminent danger allegations have nothing to do with whether his First Amendment rights have been violated. [00:15:09] Speaker 04: What case is that? [00:15:10] Speaker 04: That's Ibrahim. [00:15:11] Speaker 04: I have it cited in our brief. [00:15:12] Speaker 04: Excuse me, Your Honor. [00:15:15] Speaker 02: That's cited in your brief? [00:15:17] Speaker 02: Yes, Your Honor. [00:15:26] Speaker 04: It's Ibrahim, the District of Columbia, 463 F.33. [00:15:30] Speaker 04: This was a decision from 2009. [00:15:33] Speaker 02: Oh, right. [00:15:41] Speaker 02: That's the case where we said you can screw the allegations literally, right? [00:15:45] Speaker 04: Yes, Your Honor. [00:15:46] Speaker 04: The court also said that in Mitchell as well. [00:15:54] Speaker 05: Well, and Ibrahim alleged diminished liver function damage, fibrosis, cirrhosis. [00:16:02] Speaker 05: That's a lot more detailed than your call. [00:16:06] Speaker 04: Well, it's a lot more. [00:16:07] Speaker 04: But we don't think that it's necessarily more detailed. [00:16:10] Speaker 04: And again, or that so much more detail would be required. [00:16:12] Speaker 04: But again, the question of whether he had alleged with more detail [00:16:15] Speaker 04: I think is separate from Judge Randolph's question, which was, does there have to be a connection? [00:16:20] Speaker 04: And clearly, there does not have to be a connection in this case, because otherwise, Mr. Ibergen's claims, or at least some of them, would not have been allowed to proceed. [00:16:31] Speaker 04: If there are no more questions, Your Honor, sir. [00:16:33] Speaker 05: Thank you. [00:16:34] Speaker 04: Oh, I'm sorry. [00:16:35] Speaker 05: What you just said, we wouldn't have decided that at the IFP stage. [00:16:41] Speaker 05: I mean, we wouldn't have said, yes, you get to file without paying anything and these claims are gone. [00:16:47] Speaker 04: Well, I think that's right, Your Honor. [00:16:48] Speaker 05: Is that what you just said? [00:16:50] Speaker 04: No, I'm sorry. [00:16:50] Speaker 04: I think that's right. [00:16:52] Speaker 04: The court could not have dismissed individual claims in that case. [00:16:55] Speaker 04: But the point is that it allowed imminent danger relief in that case, even though some of Mr. Ibrahim's claims had no connection to his imminent danger allegations. [00:17:07] Speaker 05: Well, but I think what Judge Randolph is saying is you've got to have a credible claim, and Ibrahim [00:17:17] Speaker 05: I don't remember what he alleged, but I think he did have at least one, maybe not. [00:17:21] Speaker 05: Maybe Mr. Burch remembers. [00:17:23] Speaker 04: I'm sorry, I didn't hear you. [00:17:24] Speaker 05: Do you remember what Mr., other than the frivolous ones, what Mr. Ebrahim's? [00:17:31] Speaker 04: I believe he had Eighth Amendment claims as well as First Amendment claims. [00:17:34] Speaker 05: Okay. [00:17:37] Speaker 05: Okay. [00:17:38] Speaker 05: All right. [00:17:38] Speaker 05: We'll give you some time. [00:17:39] Speaker 04: Great. [00:17:40] Speaker 05: Thank you. [00:17:40] Speaker 05: Okay. [00:17:41] Speaker 05: Mr. Burch? [00:17:50] Speaker 01: May it please the Court, good morning. [00:17:51] Speaker 01: Alan Burch on behalf of the government. [00:17:53] Speaker 01: I'd like to talk about the law of the case first and then turn to the merits of the imminent danger and then finally touch on the NXIS requirement. [00:18:01] Speaker 01: With respect to the law of the case, I want to first make sure that the government's position is clear in what we're asking for. [00:18:08] Speaker 01: I regret that I didn't think it was that clear from my brief when I went back and reread it. [00:18:12] Speaker 01: We're asking the court to affirm the judgment below. [00:18:14] Speaker 01: We do not necessarily wish to disturb his IFP status on appeal. [00:18:20] Speaker 01: We don't think the two need to go together. [00:18:23] Speaker 01: If they do, then we would ask the court to do that. [00:18:26] Speaker 01: But I think we can get to the affirming of the district court without disturbing his IFP status on appeal. [00:18:34] Speaker 01: And that would be if the law of the case does not control. [00:18:38] Speaker 01: How do we do that if the same inquiry? [00:18:41] Speaker 03: How do we do that if it's the exact same inquiry it would be? [00:18:44] Speaker 03: I think the word was anomalous too. [00:18:47] Speaker 01: Yes, it's just certainly an anomaly at some level. [00:18:51] Speaker 01: I have six reasons I'd like to get into, but before I do that I'd like to say that [00:18:57] Speaker 01: The law of the case doctrine can sometimes include the mandate rule, and I think it's important that we appreciate that that's not what's going on here. [00:19:06] Speaker 01: This court's decision in the mandamus appeal, the first appeal, was not a review of the district court's finding on imminent danger. [00:19:15] Speaker 01: It was simply this court, in the first instance, getting to that issue first. [00:19:19] Speaker 01: And so it's not an application of the mandate rule. [00:19:23] Speaker 01: And I think it's important that we sort of understand that it doesn't automatically control that. [00:19:29] Speaker 03: No, I wasn't saying that. [00:19:30] Speaker 01: I'm just saying if we've... I just want to make that clear. [00:19:32] Speaker 01: I think we're all on the same page about that. [00:19:34] Speaker 03: For a far order said that there is imminent danger, therefore, IFP an appeal, it's... [00:19:43] Speaker 03: unusual and turn around and say the district court is okay and say no imminent danger if it's the exact same in court. [00:19:50] Speaker 01: Right. [00:19:50] Speaker 01: So this brings me to my six reasons why I think that the law of the case should not control here. [00:20:00] Speaker 01: The first is that simply the January 4, 2012 order explicitly said we take no position on the district court's determination. [00:20:11] Speaker 01: And so it phrased it as determination on the position on prepayment of fees, but it certainly includes this issue. [00:20:18] Speaker 01: So I think that that's a fair reading of that work. [00:20:22] Speaker 02: What is the fair reading? [00:20:24] Speaker 01: That it doesn't control any of the district court's findings with respect to prepayment of fees. [00:20:32] Speaker 02: You're reading a bit more into it than it actually says. [00:20:35] Speaker 02: We take no position on the prepayment of fees. [00:20:38] Speaker 02: Right. [00:20:38] Speaker 02: And as I said to Amicus Council, that makes perfect sense because we had precedent at that time that said you decide whether a person is in imminent danger at the time the complaint is filed. [00:20:54] Speaker 02: And the complaint hadn't been filed. [00:20:56] Speaker 02: There may have been a change in circumstances. [00:20:58] Speaker 02: For all we know, he may have been being treated for diabetes and all the other problems. [00:21:05] Speaker 02: But nothing changed. [00:21:06] Speaker 02: And so the determination of our court, assuming we determined he was in immediate danger or imminent danger, is the same determination or the same facts as Judge Cavanaugh said. [00:21:22] Speaker 01: Well, let me be clear. [00:21:24] Speaker 01: My next reason goes to that. [00:21:28] Speaker 01: I mean, I think that with respect to the January 4, 2012 order, it's at least arguable that the court is saying we're not going to... [00:21:38] Speaker 01: control any of these issues. [00:21:39] Speaker 01: But I fully admit that it's not dispositive of the whole issue. [00:21:45] Speaker 01: It is important, however, that you look to the fact that it's not only the complaint, but it's also the motion attached that requests the relief. [00:21:54] Speaker 01: The motion is filed at a different date and time. [00:21:58] Speaker 01: The motion is supported by different documents. [00:22:01] Speaker 01: And both [00:22:02] Speaker 01: I believe Abraham and Mitchell both talk about looking to the documents as well. [00:22:09] Speaker 01: The motion certainly at the point in time is the same, but the supporting of the... Was the motion filed? [00:22:17] Speaker 02: It was filed after the case was documented? [00:22:20] Speaker 01: Which motion? [00:22:21] Speaker 01: The... The one you're talking about. [00:22:23] Speaker 01: Well, he filed a motion for IFP on remand. [00:22:29] Speaker 01: In addition to the motion that he filed, attempted to file the first time. [00:22:38] Speaker 01: The first time he was allowed to file anything, the district court returned his attempt to file. [00:22:47] Speaker 01: Let me cut to the chase. [00:22:50] Speaker 02: What papers from this prisoner were before the district court that were not before the court of appeals? [00:23:02] Speaker 01: I think everything that was presented to the district court, as I understand it, was made a part of. [00:23:10] Speaker 02: I didn't think there was any difference between the record before the district court and the record before the district court. [00:23:14] Speaker 01: There were additional materials that he put into play with respect to each motion. [00:23:20] Speaker 01: And the case law does talk, both Mitchell at 587-421, it talks about an ongoing threat [00:23:28] Speaker 01: Pinson as well picks up that 761 F3 at page 5. [00:23:34] Speaker 01: It does talk about the need that imminent means that there's an ongoing threat, which suggests that the court can look past, at least in a limited respect, the date of the complaint. [00:23:48] Speaker 01: Again, I'm not sure that these two reasons so far are sufficient. [00:23:53] Speaker 01: I would point to the next question of law and fact. [00:23:56] Speaker 01: When I wrote the brief, I thought we were focusing mostly on the law of the case. [00:24:01] Speaker 01: But I do see now that if you're going to get into the factual sufficiency, that it can become a mixed question of law and fact. [00:24:09] Speaker 01: And I think there is room for the court to apply a different approach. [00:24:14] Speaker 01: less than de novo review. [00:24:16] Speaker 01: Indeed, when you're talking about a different court's determination of these privileges, this is a separate reason, my third reason. [00:24:24] Speaker 01: Actually, my fourth reason. [00:24:28] Speaker 03: I looked at some other courts on this. [00:24:32] Speaker 03: There's no sophisticated analysis of this question, but it does seem like most of the courts are applying to no-vote review of this kind of determination. [00:24:40] Speaker 01: It certainly follows with taking your facts from the complaint. [00:24:47] Speaker 01: But if you take your facts from the complaint in a motion, then I think that that breaks down a little. [00:24:52] Speaker 01: And I think it is more appropriate to use a mixed question at that point. [00:24:56] Speaker 01: And certainly, if you're going to look at an ongoing threat, then it's appropriate to look at updated motions papers and evidence supporting that. [00:25:07] Speaker 02: So he's in imminent danger when he's in the court of appeals, but he's not in imminent danger when he's in the district. [00:25:14] Speaker 02: That's what you're asking us to decide. [00:25:16] Speaker 01: The imminence is judged by whether it's in part whether it's an ongoing threat. [00:25:25] Speaker 01: So yes. [00:25:28] Speaker 01: The other things I would point out, this has mattered to some courts in applying law of the case. [00:25:34] Speaker 01: One of the things some courts have looked at is whether the issue was contested the first time around. [00:25:40] Speaker 01: And if it was not contested, less likely to create a law of application. [00:25:47] Speaker 01: I think that's appropriate here as well. [00:25:49] Speaker 01: And finally, Mitchell, along those lines, Mitchell noted that entitlement to IFP status is, quote, not a traditional adversarial issue, end quote. [00:26:00] Speaker 01: That's at 587 at third, 419. [00:26:03] Speaker 01: I think that supports the notion that if it's uncontested, that the court should be more reluctant to apply law to the case. [00:26:12] Speaker 01: I don't think any of these factors are necessarily determinative on their own. [00:26:15] Speaker 01: But they add up to what I would suggest is a sufficient basis for the court to say we're not going to apply the valid case here, certainly not in a way that would be equivalent to application of a mandate rule. [00:26:32] Speaker 01: With that, I turn to the merits. [00:26:34] Speaker 01: I don't have a great deal to say about that. [00:26:36] Speaker 01: I would make two or three points on that. [00:26:41] Speaker 01: I think the analysis is fairly simple. [00:26:43] Speaker 01: It comes down to the level of detail about the threat and the treatment and whether this case is more like Ibrahim where the detail was deemed sufficient or more like Mitchell where it was deemed insufficient. [00:26:58] Speaker 01: I think with respect to the conditions that he suffers from, I think it's arguably very close to Ibrahim. [00:27:05] Speaker 01: Where he falls, however, is in the treatment. [00:27:09] Speaker 01: He has very little description of what kind of treatment he needs. [00:27:12] Speaker 01: I think it's much closer to the description in Mitchell. [00:27:15] Speaker 01: Mitchell said that he merely alleges that he needs medical treatment without providing enough detail as to what medical treatment. [00:27:27] Speaker 01: Here, the interesting thing about one unusual fact is that Williams claimed, if you look at appendix page 131, [00:27:37] Speaker 01: He claims that he refused to be treated. [00:27:41] Speaker 01: He refused to let the doctors treat him. [00:27:44] Speaker 01: Now he's also demanding treatment at the same time. [00:27:47] Speaker 01: So I think the reconciliation of those is that we don't really have any authority on why he would need treatment, what that treatment would be, why it's credible that he needs the particular treatment. [00:27:57] Speaker 01: It's merely his opinion that he needs this dietician and he needs an endocrinologist. [00:28:02] Speaker 01: We don't have any allegations that would make that plausible that that's what he really needs. [00:28:07] Speaker 01: That's why I think the court would be out within the case law in Mitchell and Ebering to deem this insufficient. [00:28:16] Speaker 01: The only other thing I would say about the merits would be the nexus requirement. [00:28:21] Speaker 01: Now, I regret not citing the Second Circuit decision in Pettus on that, but I would ask the court to consider that at this point. [00:28:27] Speaker 01: Pettus v. Morgan foul at 554, F2, 293. [00:28:32] Speaker 01: And there's a discussion, 297 and 98, about its affirming the district court's application of a nexus requirement. [00:28:41] Speaker 01: Now, the nexus requirement in Pettus was fairly minimal. [00:28:45] Speaker 01: It merely required that the claims would pass the equivalent of Article III standing. [00:28:52] Speaker 01: In other words, that the claims have some connection to the imminent danger that there's a common causation and redressability. [00:29:01] Speaker 01: And this minimal screening would only kick the case out if every single one of the claims failed. [00:29:12] Speaker 01: So that explains why it wouldn't change the result in Ibrahim, for example, to apply this nexus requirement. [00:29:19] Speaker 01: And the facts in Pettis are very closely parallel to the facts here. [00:29:24] Speaker 01: The reason that Mr. Williams can't pass the nexus requirement is that he hasn't sued anybody from North Carolina. [00:29:31] Speaker 01: None of the defendants here can affect change. [00:29:34] Speaker 01: His claim for being required to requiring a... Doesn't that get into the merits a bit? [00:29:42] Speaker 03: But at that point, it's essentially... Assuming the claims... I'm not saying this is my view, but assuming they're a bit far-fetched, there still is a theory by which they would... There is a theory, but then it becomes entirely speculative that the investigation would lead to regressibility of his claims. [00:30:02] Speaker 01: I mean, that's where it breaks down, even on a theoretical level. [00:30:05] Speaker 01: And the FOIA claim? [00:30:09] Speaker 01: And the FOIA claim, the redressability is even weaker, that there may be some merit to the FOIA claim, although I think it's arguably dismissable under 12b6. [00:30:18] Speaker 02: I can't remember. [00:30:20] Speaker 02: Did he file a claim? [00:30:22] Speaker 02: Did he exhaust this administrative remnant? [00:30:24] Speaker 01: We haven't gotten that far. [00:30:24] Speaker 01: The record doesn't say that. [00:30:27] Speaker 01: And so even on the assumption that it had merit, he would fail the redressability requirement under it, that it has very little to do with his imminent danger. [00:30:38] Speaker 01: And so it would clearly fail the nexus requirement, and that's why this case makes so much sense to apply it. [00:30:47] Speaker 01: As for the textual basis for the nexus requirement, I would say that the fundamental determination of IAP status is discretionary. [00:30:56] Speaker 01: The statutory hook is the word may in 1915A. [00:31:01] Speaker 01: And that's what has provided the textual hook for the entire [00:31:05] Speaker 01: structure that the court has built up in cases like Butler and Mitchell, which define the district court's use of its discretionary power under the statute by accumulation of case law. [00:31:19] Speaker 01: So this could certainly exist quite comfortably within that statutory hook. [00:31:25] Speaker 01: PETIS itself says that it makes sense to apply a sort of standing analysis because in its explanation it was free to presume that Congress had standing in mind when it crafted the PLRA. [00:31:42] Speaker 01: and that if this is a fundamental jurisdictional requirement of any case, it can easily be transported in part into the screening analysis. [00:31:56] Speaker 01: So there is plenty of support for reading this into the statute and applying it, and it wouldn't require the court to [00:32:06] Speaker 01: rethink any of its precedent, for example, in Ibrahim. [00:32:10] Speaker 01: The facts of this case strongly suggest that it's appropriate. [00:32:20] Speaker 01: If there are no other questions, we would ask the court to affirm the judgment below. [00:32:23] Speaker 01: Thank you. [00:32:23] Speaker 05: Thank you. [00:32:26] Speaker 05: Why don't you take a couple minutes, Mr. K. Park? [00:32:44] Speaker 04: Just three quick points, Your Honor. [00:32:48] Speaker 04: My friend refers to the ongoing threat issue. [00:32:51] Speaker 04: And I think that it's important to separate out the types of ongoing threats that we're talking about here. [00:32:56] Speaker 04: The first is we have an ongoing threat for purposes of the initial eminence and danger determinations for the imminent danger question. [00:33:03] Speaker 04: And in that context, this court at least implied in Ibrahim that inadequate treatment for a chronic disease satisfied both requirements. [00:33:13] Speaker 04: Now, but I think that it's important to separate out the question of whether or not an ongoing threat from an imminent, from an improperly treated chronic disease is sufficient for imminent danger relief from the question of whether that needs to be an ongoing threat at subsequent stages of the litigation. [00:33:28] Speaker 04: We think that this court's decision in Benson, [00:33:29] Speaker 04: definitively forecloses that argument because in that case this court made clear that the imminent danger in allegations for the question of the imminence of the danger is fixed at the time of the filing of the complaint. [00:33:41] Speaker 04: What happens after the complaint is wholly irrelevant and we think that that would include later stages of the litigation. [00:33:47] Speaker 04: This court and district courts must look to the complaint for the allegations for imminent danger. [00:33:51] Speaker 04: and in the context of an inadequately treated chronic disease, the eminence and danger requirements are satisfied simply by those allegations. [00:34:02] Speaker 04: And second, I want to just address a quick factual point. [00:34:06] Speaker 04: My friend referred to Mr. Williams' statement that he had refused treatment. [00:34:12] Speaker 04: And we think that that's probably a mischaracterization of what Mr. Williams meant in his complaint. [00:34:17] Speaker 04: What he said, or what he was at least implying, I think, [00:34:19] Speaker 04: was that he had less than absolute faith in the quality of care that he was receiving from prison officials, not that he had refused treatment. [00:34:28] Speaker 04: And we think the rest of his complaint, and in fact, the rest of this case, bears that out. [00:34:32] Speaker 04: He clearly was not refusing treatment. [00:34:34] Speaker 04: He was trying to get treatment in any way that he could. [00:34:37] Speaker 04: And we think his, I'm sorry. [00:34:40] Speaker 04: I might just make my last point. [00:34:42] Speaker 04: Go ahead. [00:34:44] Speaker 04: Finally, this court has not adopted a connection requirement. [00:34:49] Speaker 04: And in fact, the Second Circuit is the only circuit, we think, that has adopted a connection requirement. [00:34:53] Speaker 04: But as I explained in my opening, we don't think that it makes good sense to do it here for a number of reasons. [00:34:59] Speaker 04: First is that it's not supported by the statutory tax. [00:35:02] Speaker 04: It is not consistent with this court's precedent or this court's decision in Ibrahim. [00:35:07] Speaker 04: And we also don't think that it makes good sense as a matter of policy for pro se prisoners, because effectively it turns the, or first, it adds an amorphous and atextual precondition to relief for the imminent danger inquiry. [00:35:19] Speaker 04: And also, it imposes this requirement at a stage of a prisoner's case where he's unlikely to have any opportunity to remedy it. [00:35:25] Speaker 04: In fact, that's precisely what happened here. [00:35:27] Speaker 04: The district court didn't dismiss Mr. Williams's complaint. [00:35:29] Speaker 04: It simply declined to dock it. [00:35:32] Speaker 04: So there was no way that Mr. Williams could have related any deficiencies that the district court might have found if, for example, as it would have been the case, his complaint had been docketed. [00:35:44] Speaker 04: And actually, if the government had at that point moved to dismiss or move some other way to get the case tossed out. [00:35:51] Speaker 04: And in any event, we think that if the court is inclined to impose a connection requirement, that should be something that allows the district court to do in the first instance, to analyze whether a sufficient connection is there. [00:36:03] Speaker 04: Because again, no court has actually adjudicated the merits of Mr. Williams' claims or even looked at them, and no court today has dismissed that suit. [00:36:11] Speaker 04: If there are no other questions. [00:36:13] Speaker 04: Thank you. [00:36:13] Speaker 04: Thank you. [00:36:14] Speaker 05: Thank you, Your Honor. [00:36:14] Speaker 05: Mr. Capehart, you were appointed by the Court as amicus, and we thank you for your very able assistance. [00:36:21] Speaker 04: Thank you very much, Your Honor.