it please the court your honors good morning i'd like to reserve five minutes of my time for the bottle i'll be addressing the merits of the motion to dismiss clay of the motion to dismiss and to the extent the court has questions about the issue of reassignment on thank you your honor i'll walk the court through how disability rights montana's complaint the allegations in the complaint satisfy all the elements of an eighth amendment deliberate indifference claim but right at the start there's one issue that i particularly want to emphasize import call the court's attention to and that is in this case this court should hold that for purposes of pleading an eighth amendment claim against a department of corrections director or a prison warden the very top officials in the system it is obvious that placing prisoners with serious mental illness in solitary confinement exposes those prisoners to a substantial risk of serious harm it's time to acknowledge this reality in this issue is squarely teed up in this case if the court will hold that it would go to the to two primary elements in a deliberate indifference to climb the objective element and the subjective element with respect to the objective element it's just the issue of a feud objective leaders placing prisoners with serious mental illness in solitary confinement expose them to a substantial risk of serious harm yes again because it's obvious with respect to the subjective element this wouldn't completely satisfy the subjective element but the portion of the subjective element that requires the department of corrections secretary or director or prison warden to know that placing a prisoner with serious mental illness in solitary confinement exposes them to this harm that the holding of the note in our we noted and actually one of the other defenders in the case noted that there appeared to be some significant confusion at the district court nonetheless we can affirm and the grounds that was raised in the record below you can  started out to do why the complaints states you know at least the least plausible claim for deliberate indifference in the way in which the prison system is treating we think it's far more than just plausible let's go to the objective element first again is a view to object of leaders placing prisoners with serious mental illness expose them to a substantial risk of serious harm yes it does your honor and we cite numerous num  sources in our brief the amicus brief from the national disability rights resort network collected a whole slew of sources we cited these sources both in some of some of these sources in our complaint and then also in our priest suit letter the letter that gave these officials all the notice of what was going on and just you know some of the things that we cited the national commission of correctional health care standards these are standards of an organization this prison sought certification from their standards say inmates who are seriously mentally ill should not be confined under conditions of extreme isolation so if you legend the complaint that they're doing that correct we allege in the complaint we also cite from the society of correctional physicians who state that placing these prisoners in series in solitary confinement violates basic tenets of mental health treatment so objective standard appears to be clearly satisfied here and again your honor we think given the the volume of literature out there on this on this people at the highest level of the prison in the prison system have no basis for not knowing this it has to be obvious to them if it's not their sticking their heads in the sand which is not permissible under the them and can you help me  this one is the one of the prison officials say is the reason why they're doing we don't know why they say they're doing why the top officials say they're doing it in the individual instances that we cite in the complaint we cite the stories of nine prisoners and it mean this obviously each story varies a little bit but what you see is a pattern of what appears to be prisoners being placed in solitary confinement because of behavior that seems related to their mental illness you know the ways in which they act out and can't be controlled or in particular maybe the most disturbing is some of the acts of self harm that you see i mean some of the acts alleged in our complaint with these prisoners are just unbelievable we've got one prisoner who's had thirty stomach surgeries apparently because he had swallows razor blades and pins and things like this and using them in the discovery of this case when we had document discovered gambit would be we did not get t little unusual that you've got a case that's already a year into the process where they've been previous pleadings and you're confronted with a motion to dismiss but to the extent one of the arguments that the defendants make is look we haven't shown any ongoing violation you know all this stuff seemed to happen in the past well that's not true your honor in our amended complaint we did use the benefit of some of the discovery we took and one of the things we discovered was that there was another prisoner matthew brandon hill and his story is told at length in our complaint who had suffered from what appears to be serious mental illness and was placed in solitary confinement repeatedly and then ultimately dies in solitary confinement of an apparent suicide that does the this is in the pleadings but it's at this point it's very difficult to determine that because the prison itself doesn't is for as we could tell during discovery doesn't keep records of that but i think i leave what we do plead is there are fifteen or sixteen hundred prisoners in general in the montana state prison and there's only one i think it's fifteen or sixteen hundred and there's only one state prison in montana this is it there absent private prisons but this is the whole prison system as far as the state goes state administered goes and i think in our complaint we like there are about two hundred seventy two hundred seventy five prisoners on the mental health roster now they may not all have you know extreme forms of mental mental illness but it's a significant percentage of people in the abse mental illness which frankly isn't a surprise and i think that the literature on that is very well so is there a substantial risk of harm yes are prisoners in the montana state prison being subjected to that substantial risk of harm yes again we have nine stories in our complaint that show all of this in detail we've got several prisoners who were actually sentenced by montana state courts as guilty but mentally ill it's a unique designat on under montana law i think a few other states have it but essentially the the prisoner is guilty of the crime charged but because of a mental disorder i think is the term used in the montana statute the prisoner didn't appreciate the criminality of the act the sentence guilty but mentally ill but when they go to the montana state prison that designation seems to be ignored the person that we have instances where psychiatrist we're denying that the person had a mental illness we've got morrison for example sentence guilty but mentally ill but the prison staff found he had quote no mental health history that would preclude placement in solitary confinement third are the defendants themselves the d s e secretary in the prison warden with a two defendants in this case are they subjectively aware that there subjecting prisoners with serious mental illness to serious harm one again we think it is because the for those people at that high of a level it's obvious at this point based on the literature but more directly we told them so before we filed the complaint my co counsels the a c l u submitted a forty page letter to the department of secretary director laying out all of the allegations to make in our complaint and more laying out in detail what we thought was going wrong there and the defendants don't deny that they in their brief they say the letter was a was a blueprint for our original complaint they say we cut and pasted from that letter and the defense is no where in their brief do they you know they don't deny that they received the letter they don't deny that they read the letter what they seem to be arguing is that well that the contents of the letter just weren't enough to put us on notice of this issue and that to me is just completely unsustainable given the just the incredible detail that we went into with the multiple examples that we cited  we also lay out some other customs and practices i mean this is i think solitary confinement is that is the primary and the just the clearest issue of a problem at the prison but this is fundamentally a system that is broken from top to bottom this prison does not know how to deal with prisoners with serious mental illness we've got evidence we've got allegations about them punishing prisoners for behavior that's a product of their mental illness refusing to diagnose prisoners  prisoners having mental illness denying the medication and failing to review the diagnosing and prescribing practices the mental health staff so it's the solitary confinement plus much much more your honor and with that i see my ten minutes is up thank you thank you i don't read the district court oral decision to sane that i had much would have preferred a written decision from the district court in the district court from the bench made certain statements that were indeed confusing but as your honor just ball require non conclusory factual content as they each essential element of an asserted claim there's a lot of facts alleged in their complaint there are there are certain facts your honor that's true and we don't dispute that the complaint contains certain certain non conclusory factual allegations and the bulk of those are contained and on pages fifteen thirty of the complaint and these are the so called representative examples and what these do is they recount the experiences of nine different inmates over a nine year period and for purposes of for purposes of pleading of course those allegations are taken as true but for purposes of proving deliberate indifference those allegations don't mention the word in a single time they mention the director wants and i'll talk about that some more in a minute but a closer examination of the factual content reveals that it relates to isolated instances of conduct by prison staff not final policy makers and in particular the practices of the prison psychiatry's to retired over four and a half years ago now that be necessary have for solitary confinement i'm sorry what's the criteria in montana prison systems for solitary confinement the criteria your honor is the unfortunately the placement of prisoners in solitary confinement is sometimes required for various security and custodial considerations but those standards this is a rule twelve b six case and those standards really aren't outlined in drams complaint and were limited to the four corners of the complaint for purposes of rule twelve the six and i did knowledge that deliberate indifference as mr simmons noted can be alleged in a couple of different ways it can be alleged through direct allegations of a defendant's actually knowledge and it can also be alleged by pointing out a deficiency that's so obvious and so blatant that the court can merely infer deliberate indifference in foster versus runnels for instance this court determined that the repeated denial of meals to an inmate was sufficiently obvious in simmons versus cook the inmates condition as a paraplegic and wheelchair bound was obvious as was the fact that the wheelchair couldn't make it to the food tray slot and there were no rails on the toilets importantly by contrast in the harrelson vs dupnik case the court determined that the prolonged segregation of a juvenile inmate with serious mental illness was not so obvious as to simply infer deliberate indifference and even in the case cited by dram earlier this week it submitted a case in the notice of supplemental authority the plaque of each case in that case the third circuit noted  growing body of scientific literature about the harms of solitary confinement and that's something we don't dispute but the search the third circuit did not find that that made the risks so obvious that deliberate indifference could simply be in d instead it went on to examine the specific allegations of the defendant's knowledge in that case and those included allegations that the defendants were aware of statistics that in their facility over eighty percent of the suicides and almost all of the self harm occurred in locked housing units to defendants were subjectively aware of the department of justice investigation looking into the very deficiencies at issue in that lawsuit and that that investigation ultimately determined that there were systemic violations ongoing at the prison obvious circumstances are missing from this complaint what we have instead are the experiences of nine inmates over a nine year period with various prison staff and here i think is the important distinction merely alleging generally that defendants were aware of risks that may be associated with mental health whether that be through the use of lock housing the use of behavior modification plans or inadequate mental health treatment that's not enough because you can say that about every correctional official in the united states in every case having anything to do with mental health instead what's required dram a show that there is a specific policy or custom in place at the prison that's so obviously deficient that it need not provide any allegations of subjective knowledge but even accepting the our ems allegations is true that there's this growing body of scientific literature a growing national consensus about the harms of solitary confinement and most that shows that this is a complex issue it's an issue that's under scientific evaluation it's an issue that's in transition and that's an a federal to the very idea that it's obvious  ask you this question is this is there a written policy of the department of corrections that states how they deal with mental illness and if so is it in the right your honor there are a number of policies that that deal with issues relating to mental health locked housing behavior modification plans mental health treatment but again this is a rule twelve b six motion so going on drams complaint durham does allege that it's it's provided allegations of actual knowledge of the defendants and of course one of the easiest ways to do that is to point out a written policy that's unconstitutional on its face and dram but your policies as i said the r m does mention one written policy in the complaint so i should be clear about that and the allegation is that this written policy is unconstitutionally inconsistent because it uses the term serious mental health problems as a as opposed to the term serious mental illness but there's no allegation that that inconsistency ever has or ever could lead to an inconsistency in treatment much less a deprivation of federal rights would it would be helpful to the district court in finding a rational approach to this issue to have before it all of the written policies in these various areas that you've mentioned perhaps your honor but to get there dram first needs to present a twamley in a ball compliant complaint and i should point out that if anyone should be able to do that should be able to put together a complaint that complies with that pleading standard it's disability rights montana disability rights one town is an authorized protection and advocacy program in montana and that being the case it has almost unfettered access to inmates and their records and it's had that access for years so if the information is there dear him should have been able to set it out in its complaint and it failed to do so even after multiple opportunities after the district court warned the r m that it needed to do better and needed to add me to the bone so to speak in the complaint you said at the outset that the complaint only made reference to the warden once no your honor and i apologize if i misstated that the the the complaint only references the work the director wants in the so called representative examples on pages fifteen through thirty like in the later stand the complaint the way it's crafted they when they identify the party they have done a fight the plaintiffs then the identify the defendants and they say well throughout this complaint we're going to refer to th to the warden and the director as d o c defendants then there's repeated references that the dio c defendants knew this or did that or whatever there's repeated references that the defendants were aware of various policies and customs and place the prison but those are conclusory allegations and what the court has to do is focus in on the factual content and that's what i'm saying is that when you go to the part of the complaint that has the factual content there's one reference to the director and the reference is that there's a grievance process in place that includes the option of an appeal to the director and prisoners are regularly filed grievances relating to their mental health but the most those allegations do is show suited to just record ever make it clear what allegations were missing from the complaint in a will it didn't leave to amend i mean it looks like they can just clear up t complaint and they just need some additional facts prior to the motion to dismiss hearing where the district court actually dismissed this case there was a hearing a status hearing in which the court determined that the allegations against the department of public health and human services should be filed as a separate lawsuit and the court also made very clear that there were allegations missing from the arms complaint that it probably wasn't compliant with and and the district court directed d r him to go amend its complaint to file a new complaint that met that pleading standard only after that that's just going to circular beauty here in the same particular what was you know what aspect of the complaint was deficient he did he referenced the fact that some of the policies and customs alleged to exist in the complaint were based on mere transcript of that so we can see exactly what was said there is your honor and i believe it's part of the append the seas submitted by the parties i believe it's there for the court to review thank you so going back to the factual allegations relating to deliberate indifference the only factual content that mentions the director is that one of the nine prisoners a man by the name of james larson filed a grievance and that he exhausted his administrative remedies through an appeal to the director that's again the only time the directors even mentioned in these examples but dram doesn't tell us anything else it doesn't tell us what the grievance was what it allegedly put the director on notice of or even what the ultimate disposition of the grievance was references been made to the n c c eight c standards or am argu that delivered in differences somehow supported by allegations that the montana state prison applied for accreditation with the national commission on correctional health care now i should point out the d r m was more forthcoming in its original complaint in that complaint it expressly allege that accreditation had not only been sought it had in fact been obtained which is true and accreditation includes the n c c agencies expressed determination that the montana state prison is in one hundred percent compliance with its standards on mental health so if the n c c h standards provided any notice to defendants at all that notice was that they were in compliance with industry standards references also been made to a letter that dram sent to director battista just before it filed this lawsuit and that letter summarized allegations of seven unidentified prisoners who had interviewed and the allegation is that dram sent this letter and to its knowledge no modifications have been made at the prison since that time first of all drams allegation that it lacks knowledge of any modifications only shows that it lacks knowledge of an ongoing policy or or custom in place at the prison but more importantly the failure to make modifications doesn't necessarily rise to the conscious affirmative choice by a final final policy maker that's required to prove deliberat indifference merely identifying wrongful conduct by prison staff in the past isn't enough unless there's allegations that the director or the warden actually knew that that conduct occurred and that conduct was caused by a policy or custom in place at the prison next there's an allegation that the defendants were deliberately indifferent because they had the knowledge of two prior montana cases the walk er in the kaka case and these are cases from years ago neither of them involved eighth amendment violations but as a result of those two cases the prison was required under state law to make various modifications and there's no allegations in the complaint that the prison failed to do so for example the first case the walker case that was a post conviction relief proceeding filed by a prisoner almost fifteen years ago and it primarily involve the unsanitary living conditions in on the cell block where the prisoner was housed something that's not at issue here it did involve the use of behavior modification plans on the seriously mentally ill but the montana supreme court did not rule in that case that the use of b m p's is a person a violation of the state constitution so d r m doesn't allege that defendants failed to implement any of the changes mandated by the walker decision in the same strew with the second case the cocket case the allegation is that that case resulted in a settlement agreement seven years ago when the prison was required to make changes there's no allegations as to what those changes were whether they were in fact made or whether the state has some to somehow breached that settlement agreement running out of time but briefly in addition to deliberate indifference required to show a policy or custom in existence at the present the easiest way to do that would be to prove a written policy exists that's unconstitutional and on its face and i talked about that a little bit earlier but there really is no written policy at issue in this case so drams left to prove an unconstitutional custom and as this court held in the trevino versus gates case a custom must be founded on practices of sufficient duration frequency and consistency to constitute a traditional method of carrying out policy thank you very much much appreciated you're on a ledge is nine and constitutional customs and it's complaint but they can really be grouped into two categories inadequate mental health treatment and the improper use of lock housing with respect to the first custom  alleges there's a practice at the prison of refusing to diagnose prisoners were serious mental illness and refusing to provide those prisoners with the medications they need to treat their condition but those customs by durham's own admission are based exclusively on the psychiatric decisions of one psychiatry asst who retired four and a half years ago and it's well established that a mere difference of opinion on appropriate medical care does not give rise to deliberate indifference and that's true even in a case that's brought directly against a medical a medical professional himself it's certainly true that the director and the warden are deliberately indifferent by failing to countermand the decisions of a licensed psychiatry three minutes thank you your honors but i think the defendants misunderstand what this case is about we're not alleging that the d o c director or the prison warden said send matthew brandon mill to solitary confinement we're not saying that the prison wardens told the psychiatry rist not to diagnose james larson as having serious mental illness what we're saying is there were all these problems at the prison those are all looking backwards they want to look backwards and say the prison warden and the corrections officer you haven't proven or you've been you've been alleged that they were involved in these things that happened in the past this case is looking forward we're trying to stop future harm we're saying is we sent you a letter we told you everything that's going on you got to get him to stop and they haven't done it and they what my opponent said is will we in our amended complaint we'll ledge that we lack any knowledge that there were any changes and therefore that shows that we don't know any that nothing's going but these things are continuing to go on that's absolutely not a fair reading of our complaint at all as we discussed discovery went on in this case the case was pending for twelve months discovery was going on the fact that we don't have any knowledge that anything's changed implicitly means everything staying the same and beyond that are cut that wasn't the only thing in our complaint as i mentioned earlier while the case was pending matthew brandon hill a prisoner who we added in our in our amended complaint whose story we added he was he was thrown in he had serious mental illness he was thrown in solitary confinement and he apparently committed suicide while he was in there so these things are continuing to go on and we have alleged that with respect to the status conference and your honor you asked if it's in the record it's at page two zero six of our excerpts from the record is that status conference and you know did the i think my opponent said that the court had identified some things that were missing from our complaint and i don't remember everything that was said there but the one that i remember most prominently is that what the court thought was missing was he couldn't understand why we had allegations about dead prisoners in our complaint he didn't understand how we could be representing the interests of dead prisoners now to me clearly the reason why we mention the dead prisoners in the complaint is because it's evidence of the harm that's going on so i don't know what allegation actually the court suggested very strongly i don't know if we've quite an order but felt we should file eight he orders to split the case into and he wanted us to bring a third suit on behalf of dead prisoners which we did not do because that's not what our case is about those prisoners are evidence of the harm that's taking place with respect to the allegation that this only relates the improper medical care claims only relate to the acts of one psychiatry just first of all that's not in the record but beyond that we would cover this in a footnote it's not even accurate because the time for we cover is ten years there are actually two psychiatry serving at that time is that there was one who was the one when we first filed the complaint but it was another one prior to that so these these allegations spanned two chief psychiatry at the prison and finally the walker case the walker case that we cite does provide the prison with some notice that this is a substantial risk of harm because that was a that was a cruel and unusual punishment case brought under the montana state constitution same standard as the eighth amendment they cited federal circuit all federal law in that in the decision is the supreme court decision there they found that the behavior management plans that we complain about here that those plans constitute cruel and unusual punishment when they're used on prisoners with syria on a prisoner there's one prisoner there in a prison with serious mental illness and they ordered them to stop without yards of happy dance or any of the questions you may have no question addressed it for a minute or two but then oh oh i think government respond to whatever's good morning your honor may please the court alex reid on behalf of the appellant disability rights montana i just briefly want to address the issue of reassignment to a different district court judge on remand this is not a request that we make lightly there in our briefing or in our argument this morning but we want to emphasize the importance of this issue because if you look at the complete record of the lower court proceedings the e record from the status conference that the court sets who is sponte along with the transcript from the from the decision on the twelve b six motion we believe that reassignment is necessary to preserve the appearance of justice pursuant to the risk factors we're not talking about lifting one statement from the record we're not talking about a dust up between an attorney and the judge we're not talking about a disagreement simply with the with the decision that the made that the judge made on the motion to dismiss what we are talking about is a complete transcript or lower court proceeding that reflects exceedingly unusual circumstances that allowed the court to get to the level of using the risk factors in order to justify reassignment there are four things that we believe the court should look out from the lower court proceeding which flow directly to the risk factors first the court during the during the initial status conference noted that the complaint may have been crafted and such a way as to maximize what is characterized as the shock value of the pleadings this is directly analogous to the re s case as well as the rivera case where the lower court in those proceedings made statements that it believed that the parties were somehow attempting to improperly manipulate the court again and the second piece of ev follows along the same lines during the status conference the court noted that the court is not to be a forum for engaging in some sort of public influence practice in this situation the plaintiffs adequately pled pled  very important case and valving difficult issues that really required factual allegations of the treatment of mentally ill prisoners by the department of corrections and the use of solitary confinement to punish them again on the first or the second risk factor the appearance of justice based on those two comments alone from the status conference reassignment is merited third if you look at the transcript and this goes to the first risk factor with the court be willing or able to put out of its mind previously expressed opinions or decisions if you look at the lower court transcript when you look at the way that the core analyzed two cases that allege very different constitutional violations on one hand a case against the department of public health and human services that alleged fourth and fifteen or fifth and fourteenth amendment violations due process claims with our eight claims against the department of corrections which are at issue in the case that bar the court in its analysis of conflated those two decisions and what are those two constitutional standards and it wasn't just the plaintiffs that brought this to the court's attention it was the department of public health and human services that filed a motion for a clarification and the court issued a one page order affirming its original decision and this again if you look at the risk factors goes straight to the hernandez mesa case where the court made the same finding the ninth circuit made the same finding that when an issue was brought to a district court judge's attention that there was a clearly an manifest clear and manifest  and the court nevertheless decides to affirm its original reasoning that demonstrates that the court may not be able to put out of its mind previously expressed opinions or holdings and then finally the court confused some criminal critical terminology that is central to this case that is deals with serious mental illness as well as guilty but mentally ill and so for those reasons we respectfully request that on remand this case is reassigned to a different district court judge honor just very briefly it's of course our position that the court shouldn't reach the issue of reassignment because the district court's ruling is supported by the record but in any event it seems evident to me the d or m merely disagrees with the district court's legal conclusions and the u s supreme court's been very clear that judicial rulings alone almost never constitute a valid basis for reassignment drams presented no evidence that there's any personal  bias or that or unusual circumstances that would warrant reassignment there's no indication that judge had would have substantial difficulty in putting any previously expressed views out of his mind that he couldn't fairly over this case and because judge haddon's rulings and were at the very least reasonable and he made no statements during his comments that motion to dismiss make no sense really i'm just going to tell you that ok in your honour's referring to the fact that he appeared to to mix up to some degree the concepts at issue in the case against yes yes i would agree with that but but mixing up some statements the court should recognize that at that hearing the court was considering two motions he was considering a motion at issue in the d p h h s case and a motion in the case but a review  transcript in the transcript again as in the record reveals that the district court was in fact tracking everything and the district court issues the rulings that he intended to issue one more point on reassignment i think ignores an important aspect of it and that's that reassignment would entailed a great deal of waste and duplications judge hadn't presided over this case for about sixteen months we had two separate hearings we  judge hadn't issued substantive rulings on he also presided over the companion case against the p h s which the parties agreed contained common questions of fact with this case a case is settled right that case is settled but what i'm trying to say is judge had presided over that case so he's very familiar with the facts and the issues in this case and any gain from reassignment would be outweighed to a great degree by the needless waste and duplications thank you thank you counsel