good morning and welcome to the th circuit please excuse my voice i've got a terrible cold judge clifton and i would like to welcome to the bench for the st time we've sat with him our new colleague judge miller we've got four argued cases this morning the st of which is  versus santa rita county jail watch commander when  one hundred and eight days without ever being given a reason for his confinement or an opportunity to discuss it with shellfish fals during that time keller was isolated from really all human contact given limited opportunities to exercise shower and clean so in granting summary informal hearing before being housed in long term solitary confinement indeed this court has recognized that convicted prisoners are entitled to process under these circumstances and under clearly establish supreme court law a pretrial detainee who has been convicted of no crime has at least the rights of a convict with respect to your procedural due process claim predicated on a constitutionally protected liberty interest what precisely is the right that you mr candler had that you think was violated in this case rather that protected liberty interest was freedom from long term solitary confinement and that there were that liberty interest derives from two sources the st is the constitution and nd is expectations created by state law the constitutionally derived liberty let me be clear on what the right is you just said there's a right to be free from long term solitary confinement i know of no such right the question is whether he has process that led to that as i understand it that's correct your honor it's a  protected liberty interest in freedom from long term solitary quote but is there really a right to be free from solitary confinement period in fact if there are grounds for holding somebody in solitary confinement there's so and the and the reason why is because of a pretrial detainee who has again been convicted of no crime has the liberty interest in within the meaning of the due process clause in not being housed in solitary confinement for extended period of time  and when the confinement i mean there are a lot of cases and you cite a lot of them about procedures that are required for punitive confinement but when as here the confinement is this for administrative purposes  what case would you point to is clearly establishing the right to be free from administrative segregation with without process for pretrial detainees the sure versus helms case which dealt with the convicted prisoner but also dealt with administrative segregation clearly established the procedures that are required in this case and because it is also clearly established as a matter of supreme court law that a pretrial detainees rights are at least as great as those of the convicted by state law and i understand you have that component of your claim as well but but with respect to the federal the constitution and recognize liberty interest i don't see how he would clearly establishes that so what can you point to for that component of your argument the what hewet had to suffered holdings st it right it dealt with a liberty interest with recognizing a liberty interest using its explicit mandatory language class which has since been was recognized in that case so but we said that in the context of the disciplinary segregation didn't i havenot that's correct mitchell versus dubnyk was a disciplinary segregation case however the language from from mitchell on the reasoning of mitchell relied on prior supreme court cases the united states versus salerno which dealt with which dealt with it with a non disciplinary context that was the bill reform act that was a non disciplinary  michel for the proposition that a detainee who was detained for reasons of alleged mental instability was entitled to a due process liberty interest so this court has recognized that the broad sweep of this statement from m when you're talking about a state recognized state created liberty interest free of the sandan tossed but for this federal liberty interest that you're relying on what is the test that identifies the sort of restraint it was being placed in solitary confinement for disciplinary disciplinary reasons in this case it would be placed and being placed in solitary confinement for administrative reasons or position isn't that the  his appearance his or her appearance at trial i've got i'm going to almost a who's the right defendant question with respect to the classification defendants your client says nobody ever interviewed him they just put him straight and add zag and that was the end of it we've got evidence from hank and schlegel and others that they did the proper procedures hankins as i interviewed him when he came in and so on if your client's telling the truth they're lying why are they in the proper defendant even if they're lying that is to say if they're lying they didn't do the interview but then not necessarily the people who direct that he go straight to the hole without an interview and they just didn't do it so how do we know that they're the right defendants your honor because those defendants claim in their that they made the decision to continue housing candler in solitary confinement afeard each of its file review so each of the classification defend you have been paid but i'm assuming for purposes of where we are right now that they're lying that they just didn't do it well your hon has no personal knowledge of whether the cold review of the files ever took place i know i understand it but i'm trying to figure out how we know who directed your client as to what happened who directed that he go to the ad saying without any hearing i don't we know that hank and did that all we know is that he can says i interviewed him and  solitary confinement so it's clear from his declarations you know mr mr keller does dispute that the interviews ever happened but he has no personal knowledge of the of the reasons for his confinement and he has no personal knowledge of of actually i think you have no personal knowledge as to directly to go straight and or right but these defendants are claiming that there is though that they are the ones who made that decision is ok so that would be that would be nd source of the liberty interest in mr keller asserts is his state created rights so those state created rights they derive from the supreme court's decision in wilkinson which wreck recognized a procedural due process right up procedural due process of liberty interest to be free from long term solitary confinement for four convicted prisoners and the established principle that a again a detainee's rights are at least as great as those of a convicted prisoners so if the supreme court held in two thousand and five that a that a convicted prisoner has the right to be free from long term solitary confinement  you several violations i think the one that i'll be that i'll address now with my limited time is the is the deprivation of exercise that occurred mr campbell or grieved in august two thousand and nine that he was only being provided two hours of exercise every week every week but this court's held in the pierce case that at least five to seven hours per week that is one hour of exercise per day that's the constitutional minimum and so you're saying that existing prison injunction requiring two hours of exercise every day every week for the the detainee's issue in that case it did not hold that two hours was the minimum it simply decli june two thousand and eight until september two thousand and ten it was not clearly established that he possessed a protected liberty interest against being classified into administrative segregation for non punitive legitimate administrative reasons this is the rule from belleview wolfish a pretrial detainees may not be punished but absent an expressed intent to punish conditions rationally imposed for legitimate administrative reasons arising out of safety and security the inmate other inmates and the facility as a whole are not punishment but how do we establish that those conditions apply does the jail just get to make it up and not talk to him not have a hearing well extended those are reasons why you may be put  process we obviously have a dispute over that but the problem and i think is worth focusing on because we're in a pretty large digression here as to whether there's a certain right when in fact this seems like an extremely simple case but a simple case based on facts but because the case hasn't gone to trial we're dancing on the head of a pin trying to figure out whether there was a given right created so i think you have to assume at this point although the evidence might seem pretty strong on behalf of defendant said this point we can't do that can we well your honor i know that the scott harris case is not a favorite but i submit that there is objective evidence that contradicts the claim that mr cameron is making which is essentially he was put in ad saying i don't know any of the argument you've made though that's not the basis of the district court granted summary judgment was it and i don't really see that argument being made to us in the papers undermine the claim that he was never informed of the reasons for his assignment into administrative segregation in the form of his own recorded statements and the fact that while he was a pretrial detainees he was also filmed in a documentary which i think is extremely rare in any case before this court i couldn't find one where you can see the court can see his so he's communicating and there was a classification officer present but not to sidestep your question your honor absolutely and this the position that a pelleas are taking here is essentially because we upon reviewing the case authority it didn't seem to me that it was clearly established that there was a protected liberty interest under the particular facts of this case which the court has already highlighted which is a non punitive administrative decision and there is just no evidence here and in fact there is ads that are non punitive the jail can do it in a low or whatever fashion it wants without having any kind of hearing is that correct so your position well that is reasons why the job put forward as to why it can do that they make perfect sense to me would doesn't make sense is the jail doesn't have to have any procedures at all to determine whether the reasons are borne out in fact in the particular case  evidence on the other side that we i think we've got a ticket as is true well your honor if i again i the court is going to decide the the brought the burdens that have to be bounced here properly i'm sure  he's such a critical leader or political leader whatever you want to call it that he was too dangerous for him to be housed elsewhere because he could be a target for violence and that is exactly one of the reasons he also acknowledges that his knowledge of the d request based on the violence of the gang and the concern of harm to witnesses he acknowledged that both in a grievance that he submitted and in his papers in this case so but i hear your honor it is a very challenging case well aware of that and that's why we're making a qualified immunity argument which i think the court should sustain so if you were if you had been serving a sentence following a conviction rather than being  a constitutionally created liberty interest such that he would have a right to process before being placed in the ministry of segregation well your honor i think that would depend upon the particular facts i do not believe for example looking at the wilkinson case that the conditions here that were grieved word rise to the level of creating a state created which is what that court how the state created liberty interest because the conditions here were different i can go through those if you if the courts interested but he was given time out of a cell he wasn't the lights weren't on twenty four hours a day he had natural light he had access to the law library he had access to telephone he had access to television he had all the things the time for that access limited to the time i guess the term has been used this is pod time not time yet and so the argument is i hear it is that well yes he may have had access to a ray of things but with such limited time that that didn't actually make for meaningful or acceptable access well the there is it st factually is it true that all the accesses that you just mention are those limited to pod time the yes the access except for obviously the natural light and the lights being off but that was in the law library the exercise the access to clean supplies the shower all of that within the the period of time that he's allowed out of his cell correct i bet the law library question i'm not sure of and this outside of the record of this case but my knowledge of representing this client is that those materials i think are provided for a service so he may be able to access those materials without other than being and time so i believe that access was available regardless of what really the complaints had to do with agreements as had do with exercise with showers and with clear access to cleaning materials to clean up his own area correct and all of those are tied to the time that he's allowed out of  make sure that he would receive the jail minimum which was five hours which is above the time that the court is held to be constitutional so we can come can we focus on that for a moment absolutely tell me what the constitutional requirement is the district court seemed to think that the constitutional requirement was only two hours per week is that right i thought it was something i thought was closer to five or five or seven i thought it was my recollection was i thought it was three and but the  evidence when they reviewed the grievance there's and there's evidence in the record that shows this he received three hours of time based on the jail's own records but which was constitutional i believe it was three at the time and i but i could be mistaken and it was sustained because it wasn't the five hours that the jail's policy holds and so let me ask it this way and this assumes facts his way ok and assumes a constitutional standard that you're not quite conceding let's assume a constitutional standard that is a minimum of five to seven hours of exercise per week he grieves easily getting to one of the grievance officers writes a directive to someone else in the jail who says fix this and then nothing happens as the grievance officer of rolled his responsibility by writing a note that as norco that has no effect well i believe that the grievance you know officer has no he's not deliberately indifferent to mr cameron's rights if he behaves in the way your honor just described none of the upheld he's had day to day contact with mr kamler they didn't they weren't responsible for doing so that's my answer does that mean that we just need a different defendant the person who got the note and did nothing i mean because if because if you take my assumption that he only got two  to seven there's a constitutional violation little question is who's responsible for it that that's true your honor if if that's what the law says then that would be the way the court would go but there is no yes  it were three hours if the three hours is a right to exercise but he's given three hours of pod time which includes the time for showering and other things doesn't sound like he's got the three hours for exercise either because sometimes going to be taken up with the other things well my i didn't i understand you're i have the same sort of uncertainty as to exactly what the standard is but the lowest number of herd is three and it sounds like on an ongoing basis the record suggests that he didn't get three hours for exercise because he had to use some of that time for showers and other things well the the i haven't drilled down into when they say three hours for exercise if that's exclusive of doing anything else during that time my understanding of the time for exercise was simply in the case of someone an ad sega's being out of your cell and doing whatever you choose well but there's no i mean if personal hygiene of taking a shower is something that is expected to come from that time we're not talking to men i'm assuming showers probably aren't all that long but it's a pretty serious bite out of the time now the cases haven't talked about it in the same way and that's part of our quandary here but if the suggestion from the cases is that we're talking about exercise time and it may not mean one hundred and eighty minutes i mean it is time for back and forth and so maybe you take a shower after working out or something but but it there's a kind of a big question mark is wherever a gas additional standard is there's at least some basis of evidence to suggest that he wasn't getting it well your honor the evidence the evidence before the court is there were three grievances submitted and the last one was in august of two thousand and nine and then there were no more grievances for a year and four months and what was the response that acknowledged that the grievance had substance i did not bring that it was it was within this off the top of my head i believe it was within the month the same month that he grieved it but i could be mistaken they could have it that's when my recollection of when those grievances were responded to and there and it's clearly noted that that part of the grievance was affirmed and so are you suggesting we take something from the fact that there were no subsequent grievances filed well i'm saying that under the p l r a there's a requirement that the matter be grieve now i understand the court may say well he did grieve it once but in fact and appear in the wind yes exactly and it was affirmed and with respect to again we're focusing on the parts as your honor mentioned we're focusing on these particular defendants and the particular defendants you're referring to with that with respect to that grievance appellee snyder affirmed it and took corrective action  nothing go corrected so i'm not sure it's reflective correct well on the other hand your honor it could have been we don't know what we know is that he never greeted again even though when he grieved it once he was successful now so i can you can look at it either way i'm not saying your interpretation is inaccurate if we take he says it was incorrect and no appellee would be in a position to more question on the procedural due process to see when the argument you heard from your friend on the other side is that you know that there's a lot of law about you know administrative segregation for convicted defendants is requiring some level of process and so even if we don't have a case specifically about administrative segregation of pretrial detainees why is it to the off that there is a general principle that pretrial detainees ought to have at least as much procedural protection as  convicted defendants and you put those two principles together and clearly establishes the rule that there invoking well i believe for example if you look at the case of wilkinson which was a convicted prisoner case the court in that circumstance  st off recognized perm each and that there was no constitutional protection inherent in the constitution so then they turned to the state created liberty interest and held under the state created liberty interest that  that there and the conditions that that individual particularly experienced they found that there was a liberty interest and again the focus was on those conditions in particular i believe what they said was the indefinite nature and the law i wan perhaps there is a loss of good time credits i could be getting my cases mixed up and the court highlighted that the initial conditions which they described as typical to any solitary confinement might not in and of themselves be sufficient to create a liberty interest  but if you take into account these additional conditions then a liberty interest was created in my mind your honor i feel that the most important consideration is the question of of is this is there an intent to punish and  wilkinson wasn't an intent to punish case which i believe makes it sort of more on for all fours with r s but a number of cases were punishment cases and in terms of an evidence that there was punishment it was disciplinary like and one more point the bell case highlighted that there was more than just the interest in assuring someone detainees presence at trial that was relevant there were also legitimate administrative reasons for ensuring the jails safety and security and i'm my concern is that that in if the court were to find a liberty interest here when there was no evidence of any intent punish and where  the reasons for his classification are legitimate it would be opening up we are we'd go back to the world of hewitt which is what the supreme court rejected in in sand and when it restricted the state created liberty interests ok thank you very much and to your honor true it's not calling into question the the the underlying justification is luminous assume that he's entitled to a hearing there's an argument on the other side that there's enough evidence that he's lying that we can disregard a statement that he got no hearing that is to say he's been recorded as saying these are the things that appear to be somewhat inconsistent with his statement that he does he never they just put him straight in the hole they never give him a reason he has no idea why is there why is there a buttressed by his contemporaneous written grievances so he was saying this act as it was occurring he has documentary evidence that he wasn't being given the proper procedures required so it's not as though he's just making this up now  say they never talk to me or diseases improperly classified he says no reason has been given to me that's why been placed and solitary confinement and so that's a quote from his from his grievance and so that establishes that he wasn't given the proper procedures and so that that's that brings me to my nd point which is that you know the court needs to be aware that this case is is up on summary judgment so the fact that that if you but if he has been if you believe he's given no reason how come he then says here's the reason why i'm here dizzy i'm just making that up your honor there there's no evidence in the in the recorded statement the recorded phone call that shows where he got that information he could have got it from from another jellyfish will who told him that that was why he could have got it but he wasn't responsible for making the decision which wouldn't satisfy his procedural due process rights and there's also nothing in the phone called that suggests that he was given up the process rick which was deliberate indifference on behalf of the it's going to cause still leave us wondering who the defendant should be and i understand your client's not in a good position to try to point to who it is that didn't respond but what do we do with that your honor there is it's so there it may be true that there is someone else who is responsible for this violation but that doesn't mean that the grievance defendants who are also deliberately indifferent to the violation should work for the state so maybe not that much is a submitted thank you