[00:00:00] Speaker 00: Case number 20-5216 Ed Al. [00:00:03] Speaker 00: Edward Banks Ed Al versus Quincy L. Booth in his official capacity as Director of the District of Columbia Department of Corrections, and Leonard Johnson in his official capacity as Warden, D.C. [00:00:14] Speaker 00: Department of Corrections, A Balance, United States. [00:00:17] Speaker 00: Mr. Schiefferle for the A Balance, Mr. Marcus for the A Police. [00:00:22] Speaker 02: Mr. Schiefferle, good morning. [00:00:24] Speaker 04: Good morning. [00:00:26] Speaker 02: Please proceed. [00:00:28] Speaker 04: Thank you. [00:00:28] Speaker 04: Good morning and may it please the court, Carl Schifferly, for the defendants. [00:00:32] Speaker 04: I would like to reserve two minutes for rebuttal. [00:00:35] Speaker 04: The preliminary injunction should be vacated for several reasons. [00:00:39] Speaker 04: First, it automatically expired by operation of the Prison Litigation Reform Act. [00:00:44] Speaker 04: The only issue on appeal being whether the injunction was entered in, quote, any civil action with respect to prison conditions. [00:00:52] Speaker 04: It clearly was. [00:00:53] Speaker 04: Alternatively, plaintiffs failed to establish the four requirements for preliminary injunctive relief, particularly where they failed to show the delivered indifference necessary for a constitutional violation and manel liability, both of which would be required to succeed on the merits. [00:01:12] Speaker 04: Even if all four factors were satisfied, the preliminary injunction was not narrowly tailored and the district court later erred in denying reconsideration, failing to apply the requisite flexible approach [00:01:22] Speaker 04: and to recognize the changed circumstances warranted Baketer. [00:01:26] Speaker 04: As to the first reason, the PLRA applies here. [00:01:29] Speaker 04: It follows directly from how the plaintiffs presented their claims below and the district court decided them at the preliminary injunction stage. [00:01:38] Speaker 03: As you know, in the Southern District of New York, the court concluded that it did not apply where we're dealing with the COVID conditions. [00:01:51] Speaker 03: What's your response there? [00:01:56] Speaker 04: So there are several responses. [00:01:58] Speaker 04: I would start with how the plaintiffs did characterize their claims, that their claims regarding the conditions of confinement, the conditions related to COVID, were claims brought under section 1983, that their claims for release were claims under habeas. [00:02:13] Speaker 04: The district court granted the preliminary injunctive relief under section 1983, conditions of confinement, but not as to the habeas claims for release. [00:02:21] Speaker 04: So we have that distinction. [00:02:23] Speaker 04: We also have the fact of applying that to the express language of the PLRA. [00:02:29] Speaker 04: It does apply with respect to prison conditions and further defines that phrase as any civil proceeding arising under federal law with respect to conditions of confinement. [00:02:39] Speaker 03: And as you know, and just help me here, the appellees say they have [00:02:51] Speaker 03: in this case, raised habeas proceedings challenging the fact of confinement? [00:03:02] Speaker 04: As I said, the relief was granted on the Section 1983 conditions of confinement, not with respect to release. [00:03:10] Speaker 04: In any event, it wouldn't matter because the PLRA would still apply. [00:03:16] Speaker 04: This case is about conditions of confinement. [00:03:19] Speaker 04: It wouldn't exist but for conditions of confinement. [00:03:22] Speaker 04: It also follows from this court's precedent in Blair Bay and in Ray Smith, where the court recognized that conditions of confinement claims are quote precisely the type of claims that the PLRA sought to address. [00:03:35] Speaker 04: In those two cases, this court applied the PLRA, first of all, to mixed claims. [00:03:41] Speaker 04: That's where a conditions of confinement or traditional civil claim was joined with a habeas or other type claim. [00:03:49] Speaker 04: Those mixed claims, the PLRA applies. [00:03:51] Speaker 04: This court held, this court also applied the PLRA even to just habeas claims, where those habeas claims are based on conditions of confinement. [00:04:01] Speaker 03: Again, that's- Let me ask you then, [00:04:03] Speaker 03: What finding did the district court fail to make in your view such that her injunction would not extend beyond 90 days? [00:04:16] Speaker 04: So it's not even contested that the district court failed to make the requisite findings under the PLRA. [00:04:21] Speaker 04: There's no argument from the plaintiffs on appeal that it was made. [00:04:24] Speaker 04: What was not made was the need, narrowness, intrusiveness findings [00:04:30] Speaker 04: The district court did not mention the PLRA or these requisite findings. [00:04:35] Speaker 04: It did not make the findings, the need, narrowness, intrusiveness findings. [00:04:40] Speaker 03: It didn't even- Was any of this brought to her attention by the parties? [00:04:45] Speaker 04: The district in opposing the preliminary injunction did alert the district court that under the PLRA, that these findings were necessary, that the court would have to make these findings. [00:04:57] Speaker 04: The court [00:04:59] Speaker 04: you know, was unable to or unwilling to make those findings. [00:05:02] Speaker 04: And so as a result, you know, certainly the district court was on notice of this deficiency. [00:05:08] Speaker 04: And so, and the other requirement of the PLRA in order for the automatic expiration provision not to kick in was that the order be made final within 90 days. [00:05:19] Speaker 04: Again, no dispute that that requirement was not satisfied in this case either. [00:05:23] Speaker 04: And so as a result, the preliminary injunction did expire by operation of the PLRA after 90 days. [00:05:31] Speaker 04: And again, this is not disputed by the plaintiffs at all on appeal. [00:05:35] Speaker 04: All that is disputed is whether the PLRA applies in the first place. [00:05:39] Speaker 04: And I think we've established, based on how the claims were presented below, the expressed terms of the PLRA, this court's precedent, which recognized not only the purpose of the PLRA [00:05:51] Speaker 04: addressing conditions of confinement claims, but making sure that plaintiffs could not evade the requirements of the PLRA simply by dressing up their claims in a certain garb or joining a habeas claim or a claim for release. [00:06:03] Speaker 01: Let me back you up to two things. [00:06:06] Speaker 01: First, on the New York decision, are you conceding that that decision was correct? [00:06:11] Speaker 01: I mean, you distinguish the case, but do you need to? [00:06:14] Speaker 01: It's not controlling. [00:06:17] Speaker 04: That's correct, Your Honor. [00:06:18] Speaker 04: It's not controlling. [00:06:19] Speaker 04: It's easily distinguishable. [00:06:22] Speaker 01: Well, never mind distinguishable. [00:06:24] Speaker 01: You're not conceding it was rightly decided, are you? [00:06:28] Speaker 04: We are not conceding that. [00:06:29] Speaker 04: Okay. [00:06:30] Speaker 01: And the second thing, as far as the suit addressing the fact of confinement, does it really address the fact of confinement when the whole [00:06:40] Speaker 01: Basis for attacking confinement is the conditions of confinement. [00:06:46] Speaker 01: They didn't say you can't lawfully hold me. [00:06:49] Speaker 01: They said you can't lawfully hold us under these conditions. [00:06:53] Speaker 01: Is that not correct? [00:06:54] Speaker 04: That's absolutely correct, Your Honor. [00:06:56] Speaker 04: This is the heartland of the PLA. [00:06:59] Speaker 04: It's a conditions of confinement claim. [00:07:01] Speaker 04: This case would not be here but for conditions of confinement. [00:07:04] Speaker 04: In the complaint, the plaintiffs alleged a whole set of conditions that they sought to be improved. [00:07:09] Speaker 04: The only one aspect of that was downsizing. [00:07:12] Speaker 04: It was not even downsizing such that would result necessarily in the plaintiff's own release. [00:07:18] Speaker 04: That was not necessary in order to ameliorate the plaintiff's injury. [00:07:24] Speaker 04: So it's not what was alleged below. [00:07:27] Speaker 04: It's not plaintiff's contention below. [00:07:30] Speaker 04: And even if it were, again, even if this were a no-set-of-conditions case, the PLRA would still apply by its own express terms and conditions because this is an action with respect to conditions of confinement. [00:07:44] Speaker 04: And the PLRA recognizes as well that even in conditions of confinement cases to which it applies, [00:07:49] Speaker 04: release may sometimes be necessary relief. [00:07:52] Speaker 04: That's why it has a specific provision in paragraph A3 addressing prisoner release orders. [00:07:58] Speaker 04: So there's nothing that takes this case out of what the PLRA was intended to address conditions of confinement. [00:08:06] Speaker 04: And this is exactly that type of case where the district court has entered a fairly broad injunction governing large aspects of jail administration. [00:08:17] Speaker 04: this is what the PLRA was intended to address. [00:08:25] Speaker 04: If there are no further questions on the PLRA, I would like to address the merits quickly in my remaining time. [00:08:31] Speaker 04: There was no intentional or reckless disregard of the risks of COVID by Department of Corrections officials. [00:08:37] Speaker 04: To the contrary, the undisputed evidence was that the department immediately [00:08:42] Speaker 04: undertook extensive and broad robust measures designed to address those risks based on the guidance of CDC, DC Health and other experts. [00:08:52] Speaker 04: This included entry screening, suspending in-person visitation, educating inmates and staff on preventive measures, also testing, isolating quarantine inmates based on the public health guidance, including quarantining all new admissions for 14 days. [00:09:07] Speaker 04: There was a medical stay in place order that was properly implemented [00:09:10] Speaker 04: limiting inmates to one hour out of cell time per day. [00:09:14] Speaker 04: There was a significant reduction in the jail population through the actions of the district and other criminal justice partners, decreased it by 16% within three weeks, by 27% within about the first two months. [00:09:26] Speaker 04: There's no dispute as well. [00:09:27] Speaker 04: The Department of Corrections undertook other policies and procedures with respect to social distancing and enhanced sanitation and a low [00:09:36] Speaker 04: the district court found fault with the implementation or enforcement of those particular policies. [00:09:41] Speaker 04: There was no dispute that the content of those policies were appropriate, and also that efforts had been made to implement and enforce them, even if those efforts were ultimately imperfect. [00:09:50] Speaker 04: And that is not a basis for constitutional liability. [00:09:53] Speaker 04: This report is repeatedly held in cases like Franklin and Scott. [00:09:57] Speaker 04: At most, what is at issue is the failure of subordinates to implement policies. [00:10:05] Speaker 04: But that cannot suffice for constitutional liability. [00:10:09] Speaker 04: I do want to save some time for rebuttal. [00:10:11] Speaker 04: And I see that I am running low. [00:10:14] Speaker 04: If there are any further questions from the court, I'm happy to take them. [00:10:19] Speaker 02: All right. [00:10:19] Speaker 02: Mr. Schiefferle, we'll give you a couple minutes and reply. [00:10:23] Speaker 02: Mr. Marcus. [00:10:26] Speaker 05: morning and thank you your honor the district courts injunction was and is critically necessary to protect the health and safety of 1500 department of corrections residents and hundreds of doc staff whose union supported does that address the motion for dismissal yes your honor why isn't the motion well taken what the 90-day rule motion [00:10:49] Speaker 05: For two reasons, Your Honor. [00:10:51] Speaker 05: The first is the text of the Prison Litigation Reform Act. [00:10:54] Speaker 01: Tell me what part of that text doesn't apply here. [00:10:57] Speaker 05: The PLRA only applies to civil actions with respect to prison conditions, but expressly... Exactly. [00:11:02] Speaker 01: And isn't this a civil action with respect to prison conditions? [00:11:06] Speaker 05: No, Your Honor. [00:11:07] Speaker 05: At its core... It's not a prison action? [00:11:09] Speaker 05: At its core, this is a habeas petition challenging the fact of confinement. [00:11:14] Speaker 05: There is no doubt that in this circuit. [00:11:16] Speaker 01: Wait a minute, wait a minute. [00:11:17] Speaker 01: The fact of confinement or the conditions of confinement? [00:11:20] Speaker 01: As I read your complaint, you're attacking the conditions. [00:11:23] Speaker 01: You're saying you can't hold me under these conditions. [00:11:26] Speaker 01: You're not saying you can't hold me. [00:11:28] Speaker 01: Is that not correct? [00:11:29] Speaker 05: Our complaint does address the very fact of confinement, Your Honor. [00:11:33] Speaker 01: It says you can't hold us. [00:11:34] Speaker 01: It says you can't hold us at all. [00:11:36] Speaker 05: It says that during the coronavirus pandemic, a disease that spread in congregate facilities like nursing homes, cruise ships, prisons and jails, that COVID transmits rapidly in those settings. [00:11:50] Speaker 05: And so our petition did seek release for everyone, for all of the named, for the named plaintiffs and for all of the proposed class members in the action on the basis that the mere fact of being held in a closed cramped facility- In a closed cramped. [00:12:06] Speaker 01: a closed cramp, being held in a closed cramp. [00:12:09] Speaker 01: If they had not been held in a closed cramp, would you have had a case at all? [00:12:14] Speaker 01: In home confinement or solitary confinement with hospital conditions, you don't allege anything about the fact of being held, you allege something about being held under these conditions, don't you? [00:12:35] Speaker 05: Your honor, I do understand that this is a bit of a gray area, but we did allege that the mere fact of being held in a prison facility, which by its very nature is a closed, cramped congregate facility. [00:12:53] Speaker 01: The facts alleged in this case... Okay, you're not going to get anywhere, so I'll leave you alone. [00:13:00] Speaker 05: Well, I'll just direct the panel to the Sixth Circuit's analysis in Cameron versus Bouchard, which is directly on point here. [00:13:07] Speaker 05: In that case, the plaintiffs and petitioners brought a joint 1983 and habeas petition challenging the fact of confinement. [00:13:15] Speaker 05: And they alleged both that the conditions in that facility led to the claimed injuries [00:13:22] Speaker 05: And that release was the key remedy that the district court should grant. [00:13:26] Speaker 05: Now, the district court declined to grant release. [00:13:28] Speaker 05: It only issued an injunction that addressed the conditions of confinement. [00:13:32] Speaker 05: But nevertheless, the Sixth Circuit concluded that the core of that challenge was a habeas petition to the fact of confinement, even though the petitioners also challenged the conditions of confinement. [00:13:43] Speaker 05: Now the application of that case in this district is even stronger because in the DC circuit, unlike the Sixth Circuit, petitioners can challenge the conditions of confinement in a habeas petition. [00:13:54] Speaker 05: That was this court square holding in Amer versus Obama in 2014. [00:14:01] Speaker 05: All of the claims that the plaintiffs and petitioners brought here [00:14:04] Speaker 05: could be brought under habeas. [00:14:06] Speaker 05: Challenges to conditions of confinement are appropriate. [00:14:09] Speaker 05: And where the core of a challenge is to the fact of confinement, and where the core remedy being sought is released, the PLRA doesn't apply. [00:14:18] Speaker 05: And for this circuit to understand that the core was released, we direct you to the complaint and petition itself. [00:14:26] Speaker 03: Well, that's what I've been looking at, and I want to know where I can find what you're telling me. [00:14:32] Speaker 05: Your Honor. [00:14:33] Speaker 03: Yes. [00:14:34] Speaker 05: A couple of places in the complaint and petition. [00:14:36] Speaker 05: Paragraph seven, plaintiffs claim that downsizing is the only way to minimize harm done by COVID-19. [00:14:46] Speaker 05: Paragraphs 33 to 47, discussing generally the cramped conditions of prisons. [00:14:53] Speaker 05: And then paragraphs 133 to 138, which discuss specifically why downsizing is the only remedy [00:15:02] Speaker 05: the only remedy that can provide relief to plaintiffs and petitioners. [00:15:06] Speaker 03: I understand that, but I don't see the request for release of everybody. [00:15:14] Speaker 05: That was the first form of relief requested, Your Honor, was writs of habeas corpus for as many members of the proposed class as would be necessary to safely allow for social distancing in the facilities. [00:15:30] Speaker 05: Precisely the same form of relief. [00:15:32] Speaker 01: So you were recognizing there that others could be held under the conditions that would then prevail. [00:15:42] Speaker 05: That's correct. [00:15:42] Speaker 01: In other words, it's precisely about conditions of confinement, not the fact of confinement, because you do acknowledge in that part of your complaint, even that the fact of confinement can continue. [00:15:53] Speaker 01: It's just the conditions of confinement that you're attacking. [00:15:56] Speaker 03: Your prayer for relief. [00:16:02] Speaker 03: Yeah. [00:16:05] Speaker 05: That's correct. [00:16:05] Speaker 05: The central argument was that release of a significant number of residents of DOC would be necessary for social distancing would be necessary to cure the constitutional problems in DOC. [00:16:23] Speaker 05: Exactly the same kinds of claims, Your Honor, mentioned in the Southern District of New York and Fernandez Rodriguez, and exactly the same kinds of claims that were brought in Cameron versus Bouchard. [00:16:34] Speaker 05: And I want to explain why this makes sense. [00:16:38] Speaker 05: Not just the text of the PLRA, which expressly excludes challenges to the fact of confinement here, but the purpose as well. [00:16:46] Speaker 05: So that when a petitioner challenges the fact of confinement, when a petitioner says release is the central remedy, that implicates the most serious liberty interest. [00:16:58] Speaker 05: And it would make sense for Congress not to erect the most significant gatekeeping [00:17:04] Speaker 05: to those kinds of remedies. [00:17:07] Speaker 01: Would not we have expected, had Congress been thinking as you're saying, would we not we have expected that this 90-day provision would have said that it does not apply in cases where the conditions are the basis of the habeas type claim? [00:17:25] Speaker 05: Well, Congress did say it applies to challenges to conditions. [00:17:29] Speaker 01: So for instance, that's what it says. [00:17:32] Speaker 05: Right. [00:17:32] Speaker 01: And so that's what it says. [00:17:34] Speaker 01: And if they intended to exclude cases where those conditional claims include a recitation that you let part of them go and keep part of them, wouldn't Congress have had some provision excluding those from the 90 day requirement? [00:17:49] Speaker 05: I think that provision does exist in this exception, excluding challenges to the fact of confinement, where release for hundreds of people is the central remedy that Congress has already- But the order here that we're having the motion about did not involve release at all, did it? [00:18:08] Speaker 05: That's correct. [00:18:09] Speaker 01: It was addressing simply the conditions of confinement, wasn't it? [00:18:12] Speaker 01: That's correct, but this- So doesn't this then constitute a civil action [00:18:17] Speaker 01: with respect to conditional confinement. [00:18:20] Speaker 05: I don't think so, your honor. [00:18:21] Speaker 05: And I think that looking at the relief that the court ordered is not what the text of the PLRA requires. [00:18:28] Speaker 05: The text of the PLRA requires looking at the proceeding, a civil action challenging or a habeas corpus proceeding challenging. [00:18:36] Speaker 05: And we think that's the analysis that should apply here. [00:18:39] Speaker 01: Do you think you can take this out of the PLRA by joining your conditions claim with [00:18:47] Speaker 01: A plea for release? [00:18:50] Speaker 05: Yes, we're the core of the challenge. [00:18:52] Speaker 01: Wouldn't Congress have recognized that? [00:18:56] Speaker 05: I think that Congress did recognize that by creating different... They just didn't write it down. [00:19:01] Speaker 05: Well, Congress did create a regime for review of habeas proceedings. [00:19:05] Speaker 05: And there are significant gatekeeping hurdles to bring a habeas proceeding. [00:19:09] Speaker 05: The district court has to order a response in the first instance. [00:19:12] Speaker 05: And so the district court regularly reviews petitions that might be frivolous. [00:19:17] Speaker 05: There might be exhaustion. [00:19:18] Speaker 05: In fact, there are exhaustion requirements for habeas proceedings. [00:19:21] Speaker 05: So it's not as if there aren't [00:19:25] Speaker 01: Barriers set up for it would have been very easy if Congress intended to let habeas Joinder take out the conditions claim for Congress simply to make a cross reference. [00:19:37] Speaker 01: Well, it would have been a very simple thing if Congress meant to do what you're saying that Congress meant to say you can put in some language about habeas and take the case of the civil action over conditions out of the PLRA. [00:19:50] Speaker 01: And that's what you're saying that Congress did, but we can't find the Congress needed anyway. [00:19:55] Speaker 05: We think that by including that phrase, excluding habeas petitions challenging the fact of confinement, Congress did recognize. [00:20:03] Speaker 01: Ever heard justice Scalia's remarks about mouse holes. [00:20:08] Speaker 05: Yes. [00:20:09] Speaker 01: Okay, you think Congress hit an elephant that size and a mouse hole this small and this. [00:20:14] Speaker 05: Well, we dispute that it's an elephant. [00:20:16] Speaker 05: As the Southern District referred to, these cases that address the fact of confinement are quite rare. [00:20:22] Speaker 05: They have arisen during COVID because the very nature of the injury there, it does stem directly from the fact of confinement, being confined in cramped, crowded facilities. [00:20:34] Speaker 05: I did want to mention briefly why remand would be appropriate here and just direct the court's attention to Hudson versus Hardy. [00:20:41] Speaker 05: In that case, this circuit was confronted with a question of whether an action sounded in habeas or sounded in civil action. [00:20:48] Speaker 05: There, the district court did not have a chance to address the nature of the proceeding in the first instance. [00:20:52] Speaker 05: Here, the district court has not had a chance to address the application of the PLRA. [00:20:58] Speaker 05: And so we think that remand to the district court to ask these very probing questions would be helpful. [00:21:04] Speaker 05: And this court would have the benefit of a fulsome opinion to review on appeal, as is the normal course. [00:21:10] Speaker 03: But counsel for appellants cited, what was it he cited? [00:21:19] Speaker 03: where the PLRA was brought to the district court's attention. [00:21:25] Speaker 05: So, Your Honor, I think that's not correct. [00:21:27] Speaker 05: I don't think that appellants raised this issue before the district court. [00:21:31] Speaker 05: Appellants, while their motion for reconsideration was pending before the district court, [00:21:37] Speaker 05: where appellants would have had every opportunity to alert the district court, we think the injunction has expired. [00:21:43] Speaker 05: And appellants didn't do so. [00:21:45] Speaker 05: They filed a suggestion of mootness in this circuit. [00:21:48] Speaker 05: And even when appellees said this issue would be best presented to the district court in the first instance, [00:21:55] Speaker 05: Appellants, nevertheless, declined to present this issue to the district court. [00:21:59] Speaker 05: And so this court does not have the benefit of a district court opinion on this complex issue. [00:22:06] Speaker 03: Your understanding is that this was only raised by the district in a motion for reconsideration? [00:22:14] Speaker 05: No, the district declined to raise this in its motion for reconsideration. [00:22:18] Speaker 05: They raised this, the application of the PLRA in the first instance before the circuit. [00:22:24] Speaker 03: Well, I just want to be clear, and I'll ask Mr. Schiffley about this. [00:22:27] Speaker 03: I understood him to say that the district had opposed the entry of a preliminary injunction by referencing the findings that were required. [00:22:39] Speaker 05: The district court did oppose the preliminary injunction, but did not raise this issue, the application of the PLRA. [00:22:50] Speaker 01: However, if they're correct, then this is a jurisdictional question, isn't it? [00:22:55] Speaker 01: Since we're talking about mootness. [00:22:57] Speaker 01: And jurisdictional questions can be raised at any time, right? [00:23:02] Speaker 05: Definitely, Your Honor. [00:23:03] Speaker 01: And the court's obligated, even if they're not raised, we're obligated to pass on jurisdictional questions, are we not? [00:23:10] Speaker 05: That's correct. [00:23:11] Speaker 05: That was the exact situation in Hudson versus Hardy as well, Your Honor. [00:23:16] Speaker 05: The same question of mootness, the same question of how a petition should be characterized. [00:23:21] Speaker 05: And nevertheless, in that case, the circuit did remand to the district court to decide in the first instance. [00:23:28] Speaker 02: There are no more questions. [00:23:30] Speaker 02: Mr. Schiefferle, I know that Judge Rogers at least has a question for you. [00:23:38] Speaker 03: Yes, Mr. Schiefferle, you heard me. [00:23:40] Speaker 03: in talking, saying, I may have misunderstood what you said as to when the district raised the application of the PLRA while in the district court. [00:23:55] Speaker 04: So in the district court, actually beginning even before the opposition to the motion for preliminary injunction, [00:24:02] Speaker 04: The district did raise the applicability of the PLRA. [00:24:07] Speaker 04: I did mention specifically in opposition to the preliminary injunction, and this is at page 39 of the defendant's opposition, the defendant specifically cited section 3626 and the requirement of need narrowness intrusiveness findings that they would have to be made in order to justify the preliminary injunction. [00:24:28] Speaker 04: And again, the district court did not or was unable to make those findings. [00:24:32] Speaker 04: And further, there was no dispute that the PLRA actually applied to the plaintiff's Section 1983 claims. [00:24:40] Speaker 04: The district also raised an argument under the PLRA of failure to exhaust. [00:24:45] Speaker 04: And the plaintiffs did not suggest the PLRA did not apply to their Section 1983 claims. [00:24:51] Speaker 04: They argued that exhaustion had occurred. [00:24:53] Speaker 04: And likewise, the district court never even suggested the PLRA didn't apply here. [00:24:57] Speaker 04: it went ahead and decided exhaustion on the merits. [00:25:01] Speaker 04: And so it was clearly sort of raised and preserved and the district court was clearly alerted below to this issue. [00:25:09] Speaker 04: I wanted to address, to continue my opponent's arguments that first of all, this was not a case where release was sought for everybody. [00:25:20] Speaker 04: There was no claim that the jail had to be emptied. [00:25:23] Speaker 04: There was no claim the plaintiffs themselves needed to be released. [00:25:27] Speaker 04: There was simply a claim that the population should be downsized to some extent, but that was also simply to ameliorate a condition of confinement, that is to enable social distancing. [00:25:39] Speaker 04: So again, this is a conditions of confinement case. [00:25:43] Speaker 04: Also that the plaintiff's argument, while this could have been brought in habeas, is a moot point because the plaintiff's chose [00:25:50] Speaker 04: not to bring their conditions of confinement claims under habeas. [00:25:53] Speaker 04: They chose to bring it under section 1983. [00:25:55] Speaker 04: They made clear to the district court that that was the basis of their claims. [00:26:00] Speaker 04: And that's specifically at the April 22nd transcript at page 20, which we did cite to in our brief. [00:26:07] Speaker 04: That's where that characterization was specifically made to the district court. [00:26:14] Speaker 04: I think Judge Santel, you are correct that there is a concern here that if the PLRA can simply be evaded, if a plaintiff can simply tag on a claim for release under habeas to any conditions of confinement claim and simply say, well, I need to be released because of these conditions, then the PLRA could be easily circumvented in any case just by adding that on. [00:26:34] Speaker 04: And that's something that obviously should not be permitted. [00:26:37] Speaker 04: It's something this court did not permit in Ray Smith. [00:26:41] Speaker 04: And that should be followed here. [00:26:43] Speaker 04: I would finally just note the Supreme Court's decision in Porter versus Nusselt, again, applying a very broad reading to a conditions of confinement claim. [00:26:54] Speaker 04: It applied it to a claim of excessive force, a single incident, applying it broadly. [00:27:00] Speaker 04: And again, in Porter versus Nusselt, the Supreme Court recognized the importance [00:27:04] Speaker 04: of not allowing the PLR to be evaded simply by clever pleading. [00:27:09] Speaker 04: And so. [00:27:11] Speaker 02: All right. [00:27:12] Speaker 02: If there are no more questions in council, thank you. [00:27:15] Speaker 02: Your case is submitted. [00:27:16] Speaker 02: And Madam Clerk, if you would call the next case.