NO. 11-1097 In the Supreme Court of the United States ESTATE OF WILBERT L. HENSON, ET AL., Petitioners, v. KAYE KRAJCA, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit PETITIONERS REPLY BRIEF RICKEY G. BUNCH THE LAW OFFICE OF RICKEY G. BUNCH P.O. Box 3421 Wichita Falls, Texas 76301 (940) 322-6611 rickbunch@sw.rr.com DAVID E. MILLS Counsel of Record THE MILLS LAW OFFICE LLC 1300 West Ninth St., Ste. 636 Cleveland, Ohio 44113 (216) 929-4747 dm@millsfederalappeals.com Attorneys for Petitioners May 15, 2012 Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001
i TABLE OF CONTENTS TABLE OF AUTHORITIES... ii REPLY... 1 I. This Fourteenth Amendment Claim Is Well Preserved For Review; It Would Have Been Obviously Futile To Raise Below Another Circuit s Conflicting Approach... 1 II. III. IV. Krajca Does Not Dispute That There Is a Conflict and Does Not Respond To the Fundamental Point That the Fading Minority Position Is Actually the Correct Position... 3 There Is No Alternative Basis For The Decision Below It Turned Entirely On Whether Krajca Violated Henson s Fourteenth Amendment Rights... 6 There Are No Procedural or Evidentiary Complications Affecting This Court s Review... 6 V. Krajca s Objections To Misstatements In the Petition Are Mistaken, Irrelevant, or Both... 6 CONCLUSION... 10
ii TABLE OF AUTHORITIES CASES Baze v. Rees, 553 U.S. 35 (2008)... 7 Bell v. Wolfish, 441 U.S. 520 (1979)... 3, 4, 5 Benjamin v. Fraser, 343 F.3d 35 (2d Cir. 2003)... 4 Brown v. Entm t Merchs. Ass n, 131 S. Ct. 2729 (2011)... 7 Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009)... 4 Comm r v. McCoy, 484 U.S. 3 (1987)... 3 Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010)... 4 Dewey v. Des Moines, 173 U.S. 193 (1899)... 2 Farmer v. Brennan, 511 U.S. 825 (1994)... 7 Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996)... 1, 2 Lebron v. Nat l R.R. Passenger Corp., 513 U.S 374 (1995)... 2
iii Ortiz v. Jordan, 131 S. Ct. 884 (2011)... 2 Yee v. Escondido, 503 U.S. 519 (1992)... 2 Youngberg v. Romeo, 457 U.S. 307 (1982)... 5 CONSTITUTIONAL PROVISIONS U.S. Const. amend. VIII... 2, 3, 9 U.S. Const. amend. XIV...passim OTHER AUTHORITY Michael Hannon, A Closer Look at Unpublished Opinions in the United States Courts of Appeals, 3 J. App. Prac. & Process 199, 241 50 app. (2001)... 3
1 REPLY Respondent Krajca s Opposition confirms that granting certiorari is appropriate in this case. Her main argument is simply wrong: The Fourteenth Amendment claim fully litigated below is well preserved for this Court. Krajca s confusion arises from the fact that Henson s family did not undertake the futile exercise of citing in the Fifth Circuit the conflicting approaches of other circuits that it had already rejected regarding such claims. As for the circuit conflict (which Krajca acknowledges), she provides no response to Henson s family s arguments that the minority view on the Question Presented is simply correct that is, that pretrial detainees are entitled to greater protection than convicted prisoners. Krajca s remaining points largely just reiterate the majority s opinion below. This brief tracks each of the five Opposition headings with the five responsive headings below. The straightforward facts behind Henson s tragic death present this Court with the opportunity to finally answer the question it has twice left open and upon which the circuit split is fading but in the wrong direction. Certiorari should be granted. I. This Fourteenth Amendment Claim Is Well Preserved For Review; It Would Have Been Obviously Futile To Raise Below Another Circuit s Conflicting Approach. As the Petition explained, the Fifth Circuit definitively resolved the Question Presented for itself more than 15 years ago in its 1996 en banc decision in Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) it concluded that the subjective deliberate-indifference
2 standard (rooted in the Eighth Amendment) applied to claims of pretrial detainees. Pet. at 7. To have argued to the Fifth Circuit that it should apply the conflicting approach of other circuits would have been futile and revealed a novice practitioner the court of course must follow its own precedent. The question, then, is whether Henson s Fourteenth Amendment claim is preserved. It plainly is, as it was the basis for the decisions below. This same claim is therefore ripe for this Court s review, and Henson s family can present the argument raised in the Petition in support of this claim. See Lebron v. Nat l R.R. Passenger Corp., 513 U.S 374, 379 (1995) ( Our traditional rule is that once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992))); see also Dewey v. Des Moines, 173 U.S. 193, 198 (1899) ( Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed. ). It is similarly no surprise that the decision below was unpublished the Fifth Circuit s view on the Question Presented has been firmly in place since its en banc Hare decision. Later panel decisions such as that in Henson s case merely apply that precedent. The point of the Petition is that the precedent conflicts with that of other circuits and is wrong. See, e.g., Ortiz v. Jordan, 131 S. Ct. 884 (2011) (granting certiorari to review an unpublished Sixth Circuit decision that merely followed that circuit s wrongful view of an issue on which circuits were split); see also Pet. at 7 ( Following its earlier precedent in cases such as Hare,
3 the Fifth Circuit issued an unpublished decision in which it assessed whether Krajca violated the Eighth Amendment s subjective deliberate indifference standard. ). Thus, the publication status of the decision below in this case does not affect the propriety of certiorari. See Comm r v. McCoy, 484 U.S. 3, 7 (1987) ( [T]he fact that the Court of Appeals order under challenge here is unpublished carries no weight in our decision to review the case. ); see generally Michael Hannon, A Closer Look at Unpublished Opinions in the United States Courts of Appeals, 3 J. App. Prac. & Process 199, 241 50 app. (2001) (listing more than 50 of this Court s decisions reviewing unpublished opinions). In short, Henson s Fourteenth Amendment claim is preserved for this Court s consideration. II. Krajca Does Not Dispute That There Is a Conflict and Does Not Respond To the Fundamental Point That the Fading Minority Position Is Actually the Correct Position. The Petition explained that gradually a majority of circuits adopted the subjective deliberate-indifference test that Henson s family contends is mistaken for pretrial detainees. See Pet. at 13 & n.3 (citing to nine circuits, including the Second). The Petition explained that the Third and Ninth Circuits make up the minority view as they adhere to Bell v. Wolfish, 441 U.S. 520 (1979), and a more-lenient standard. Pet. at 14 & n.4.
4 Krajca claims that the Petition is flawed in that the Second Circuit at one time took the minority view in Benjamin v. Fraser, 343 F.3d 35 (2d Cir. 2003), but that decision was overruled in Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009). Opp. at 8. Yet the Petition acknowledged this expressly, citing to these same cases. See Pet. at 13 (citing Benjamin for the point that the Second Circuit had adopted the objective standard under Wolfish); id. at 13 n.3 (citing Caiozzo as the basis to say that the Second Circuit now applies the majority view and rejects an objective standard). Krajca also does not dispute that the Third Circuit endorses the minority view Henson s family argues is consistent with this Court s precedent; she just suggests that the Third Circuit might change its view in light of the Second Circuit s decision in Caiozzo. Opp. at 9. Krajca further claims that any conflict with the Ninth Circuit lacks true practical substance because that court has issued decisions embracing the subjective deliberate-indifference standard. Id. at 7 8. Henson s family acknowledges that; their point is that as recently as 2010 the Ninth Circuit stated that the more-lenient standard has also been suggested by [its] caselaw. Pet. at 14 n.4 (quoting Conn v. City of Reno, 591 F.3d 1081, 1094 n.2 (9th Cir. 2010) vacated and remanded, 131 S. Ct. 1812 (2011)). Much of this discussion, however, sidesteps the fundamental aspect of this case: The parties agree that there is growing support among courts for the majority view (and thus a fading of the conflict) such that pretrial detainees are equivalent to convicted prisoners the problem is that the majority view, as it parrots each other s decisions, is simply wrong. The Petition presented three basic reasons why the
5 majority approach has strayed from this Court s precedent: (1) it has been accepted for centuries that pretrial detainees are entitled to more vigorous protections than convicted prisoners; (2) this Court s decision in Youngberg v. Romeo, 457 U.S. 307 (1982), shows that the subjective deliberate-indifference standard does not apply to individuals in custody who have not been convicted, such as civilly committed individuals; and (3) nothing in Wolfish, which controls such Fourteenth Amendment claims, requires a showing of subjective state of mind for such claims. Pet. at 14 16. The Petition then proposed the proper solution, consistent with this Court s decisions and espoused by various judges and commentators. Id. at 16. What is Krajca s response to each of these points? There is none. It is one thing to say that circuits are starting to line up together; it is another to say that that they have lined up on sound footing. No such footing is offered here. This Court s review is necessary to bring the circuits to solid ground, with recognition that pretrial detainees are different than convicted prisoners, and their constitutional claims arise from entirely different constitutional provisions. Finally, Krajca s suggestion that review of this issue is premature, Opp. at 10, is perplexing. As noted in the Petition, this Court has twice left the issue open, nearly every circuit has taken a side (or played both sides), and various commentators and judges have noted that the majority view is improper as it conflicts with this Court s precedent. Pet. at 11, 13 14, 15. Essentially everyone has weighed in it is now time for the Court to squarely resolve the Question Presented.
6 III. There Is No Alternative Basis For the Decision Below It Turned Entirely On Whether Krajca Violated Henson s Fourteenth Amendment Rights. This section of Krajca s brief is nothing more than adoption of the majority s view below that Krajca did not violate Henson s rights. Opp. at 10 12. The Petition explains why this view is mistaken. Pet. at 16 17. IV. There Are No Procedural or Evidentiary Complications Affecting This Court s Review. In this section of Krajca s brief, she makes vague claims regarding a convoluted record fraught with missteps, but she points to nothing hindering this Court s review of the Question Presented. Opp. at 12. The truth is that this case and its procedural history, as documented in the Petition and the decisions below, present a straightforward vehicle for answering the Question Presented. V. Krajca s Objections To Misstatements in the Petition Are Mistaken, Irrelevant, or Both. This section of Krajca s brief similarly lobs mistaken and distracting points. Henson s family responds briefly as follows: Krajca complains that the Petition stated that Henson died on her watch, and she notes that she was actually one of six nurses employed by the jail. Opp. at 13. But she was the one who did not take
7 very basic, minimal actions that could have saved Henson. Krajca claims that Henson s family has change[d] or add[ed] to the facts, but then admits that those same facts were relied on in the dissenting opinion below. Id. at 13. She appears to object to any reference to reputable sources, such as the American Heart Association, for basic explanations of vital signs and conditions. This Court has not shared Krajca s concern about citing to reputable sources for basic explanations within their expertise. Indeed, in Farmer v. Brennan, the Court cited to the American Medical Association s Encyclopedia of Medicine to explain inmate Dee Farmer s condition. 511 U.S. 825, 829 (1994); see also Brown v. Entm t Merchs. Ass n, 131 S. Ct. 2729 (2011) (Breyer, J., dissenting) (citing to American Medical Association joint statement and American Psychological Association resolution available online); Baze v. Rees, 553 U.S. 35, 64 (2008) (Alito, J., concurring) (citing to American Medical Association guidelines available online). Krajca disputes the sequence in which she ordered that the guards reduce the frequency of observations to 30-minute intervals after she learned of his vital signs yet this sequence is the same relayed in the decision below. See Pet. App. 10a (majority notes that Krajca agreed to move Henson to medical solitary when Nurse Krajca was told his vital signs, and Henson was placed on 30-minute observation ); id. at 18a (dissent notes that [a]fter hearing of Henson s medical needs, including his blood pressure, she told the detention officers to monitor Henson s condition
8 every 30 minutes ). Krajca does not provide a different version of this sequence of events. Krajca objects to an undesignated expert s testimony concerning appropriate intake procedures. Opp. at 14. The Petition does note, as the dissent stated, that an expert physician explained that Henson likely would have survived his dangerous conditions if appropriate procedures were taken. Pet. at 5. Krajca objects to the Petition s reference to the fact that, on Henson s final day alive, the guards called the on-call nurse. Opp. at 14; Pet. at 6. In particular, Krajca objects to Henson s family s failure to inform the Court that the nurse referred to... is not Krajca, but other medical personnel. Opp. at 14. It is unclear why one would think that Henson s family intended the generic reference to the on-call nurse to be a surreptitious placeholder for Krajca when the Petition attributes all of her misconduct to her by name. See, e.g., Pet. at 5 (noting that Henson s blood pressure was reported to Krajca as a dangerously high 208/107, that Krajca reduced the frequency of Henson s observations, and that she did not leave any other instructions and took no other actions she also did not contact any other medical staff or arrange for Henson to be taken to the emergency room ). Krajca objects to the Petition s reference to gross negligence as attributed to the majority below. This objection is actually well taken Henson s family agrees that the majority used the phrase negligence when describing her conduct in relation to Henson s death.
9 As a conclusion to this section and running theme in her brief, Krajca emphasizes her limited involvement, stating that she had only two contacts with Henson. Opp. at 14. She fails to see that her limited involvement is what led to Henson s death. The facts taken in the light most favorable to Henson s family establish that Krajca knew a man was close to death for days, could have easily prevented his death, and yet did nothing about it. That deplorable conduct would suffice for Henson s family to overcome summary judgment even if he were a convicted criminal who had to show subjective deliberate indifference under the Eighth Amendment standard it certainly suffices for a pretrial detainee under the proper reading of the Due Process Clause that this Court now has the opportunity to make clear. The claims of thousands of pretrial detainees similarly not even convicted of a crime will depend on it.
10 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, David E. Mills Counsel of Record The Mills Law Office LLC 1300 West Ninth St., Ste. 636 Cleveland, OH 44113 (216) 929-4747 dm@millsfederalappeals.com Rickey G. Bunch The Law Office of Rickey G. Bunch P.O. Box 3421 Wichita Falls, Texas 76301 (940) 322-6611 rickbunch@sw.rr.com Attorneys for Petitioners May 15, 2012