Argued and Submitted En Banc, San Francisco,
California: September 18, 2013.
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Appeal from the United States District Court for the Central District of California. D.C. No. 2:05-cv-01937-JVS-PLA. James V. Selna, District Judge, Presiding.
Derek Milosavljevic (argued), Kirkland & Ellis LLP, Los Angeles, California, for Plaintiff-Appellant.
Janine K. Jeffery (argued) and Oren Rosenthal, Reily & Jeffery, Northridge, California, for Defendants-Appellees.
Melinda Bird and Monisha Coelho, Disability Rights California, Los Angeles, California; Donald Specter and Kelly Knapp, Prison Law Office, Berkeley, California; Ernest Galvan and Lisa Ells, Rosen Bien Galvan & Grunfeld, LLP, San Francisco, California; Paula D. Pearlman and Michelle Uzeta, Disability Rights Legal Center, Los Angeles, California, for Amicus Curiae Disability Rights California, Disability Rights Legal Center, Prison Law Office, and Rosen Bien Galvan & Grunfeld, LLP.
Before: Alex Kozinski, Chief Judge, Barry G. Silverman, Susan P. Graber, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, Milan D. Smith, Jr., Morgan Christen, Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges. Opinion by Chief Judge Kozinski; Partial Concurrence and Partial Dissent by Judge Christen; Partial Concurrence and Partial Dissent by Judge Hurwitz. Chief Judge KOZINSKI delivered the opinion of the court, which is joined in full by Judges SILVERMAN, GRABER, TALLMAN, CLIFTON and NGUYEN. Judge BYBEE joins Part II.B.
Chief Judge KOZINSKI delivered the opinion of the court, which is joined in full by Judges SILVERMAN, GRABER, TALLMAN, CLIFTON and NGUYEN. Judge BYBEE joins Part II.B.
KOZINSKI, Chief Judge:
We consider whether prison officials sued for money damages under 42 U.S.C. § 1983 may raise a lack of available resources as a defense.
At the time Cion Adonis Peralta arrived at California State Prison, Los Angeles County (Lancaster), the prison had only three or four dentists and three or four dental assistants. It had no office technicians or dental hygienists. State policy calls for one dentist for every 950 prisoners, but the ratio at Lancaster was closer to one to 1,500. In addition, the dentists there were responsible for roughly 1,800 inmates at other facilities, bringing the ratio to around one to 2,000.
Peralta requested dental care almost immediately. He complained that his teeth hurt, he had cavities and his gums were bleeding. When he hadn't received care a few weeks after his initial request, Peralta filed a written appeal, in which he again claimed that he had cavities and severe pain. In the informal response to that appeal, Peralta was put on a waiting list, which was generally nine to twelve months long.
Peralta then pursued a formal appeal. He was subsequently interviewed by Dr. Brooks, a staff dentist. Brooks asked Peralta which tooth hurt most, took X-rays and scheduled Peralta for an extraction of that tooth. Brooks also gave Peralta a few days' supply of Ibuprofen. Dissatisfied, Peralta filed a second-level appeal a few days later, and was told that " further treatment [would] be provided based on the waiting list."
About three months after his initial interview, Peralta had his second visit with Brooks. During that visit, Peralta was supposed to have the scheduled extraction, but he declined to go through with it after Brooks told him removal was unnecessary. Brooks gave Peralta more Ibuprofen and medication for an infection. Eleven months after that, Brooks saw Peralta again and took X-rays, reviewed Peralta's history and cleaned his teeth.
After Peralta declined to have his tooth extracted, but before his cleaning, he filed this section 1983 lawsuit for money damages against Brooks; the prison's Chief Dental Officer, Dr. Dillard; and the Chief Medical Officer, Dr. Fitter. He claimed that their deliberate indifference to his serious medical needs violated his Eighth Amendment rights. See 42 U.S.C. § 1983. In the end, his claims amounted to a several-month delay in getting his teeth cleaned and an alleged failure to treat his pain. These claims went to trial, but after Peralta presented his case, the district court granted directed verdicts to Dillard and Fitter. The jury found for Brooks. Peralta challenges the jury instruction, as well as the judgment in favor of Dillard and Fitter.
Prison officials violate the Eighth Amendment if they are " deliberate[ly] indifferen[t] to [a prisoner's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A medical need is serious if failure to treat it will result in " 'significant injury or the unnecessary and wanton infliction of pain.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,
104 F.3d 1133 (9th Cir. 1997) (en banc)). A prison official is deliberately indifferent to that need if he " knows of and disregards an excessive risk to inmate health." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
A. " Cost Defense" Jury Instruction
The court instructed the jury that " [w]hether a dentist or doctor met his duties to Plaintiff Peralta under the Eighth Amendment must be considered in the context of the personnel, financial, and other resources available to him or her or which he or she could reasonably obtain." The court also told the jury that " [a] doctor or dentist is not responsible for services which he or she could not render or cause to be rendered because the necessary personnel, financial, and other resources were not available... or which he or she could not reasonably obtain."
We review a district court's formulation of civil jury instructions for abuse of discretion, Dang v. Cross, 422 F.3d 800, 804 (9th Cir. 2005), but we review de novo whether an instruction states the law correctly, Clem v. Lomeli, 566 F.3d 1177, 1180-81 (9th Cir. 2009). Jury instructions must be supported by the evidence, fairly and adequately cover the issues presented, correctly state the law, and not be misleading. Id. at 1181.
1. The Instruction's Statement of the Law
The Supreme Court has not said whether juries and judges may consider a lack of resources as a defense in section 1983 actions. See Wilson v. Seiter, 501 U.S. 294, 302, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (" [T]he validity of a 'cost' defense as negating the requisite intent is not at issue in this case...." ); see also Harris v. Angelina Cnty., 31 F.3d 331, 336 (5th Cir. 1994). But the Court has told us that prison officials aren't deliberately indifferent to a prisoner's medical needs unless they act wantonly, see Estelle, 429 U.S. at 104, and whether an official's conduct " can be characterized as 'wanton' depends upon the constraints facing [him]," Wilson, 501 U.S. at 303. The Court has also told us that, even if an official knows of a substantial risk, he's not liable " if [he] responded reasonably." Farmer, 511 U.S. at 844.
What is reasonable depends on the circumstances, which normally constrain what actions a state official can take. This case is a fine example. Peralta rests his claim on having to wait for dental care, but prisons are a particularly difficult place to provide such care. Security concerns dictate that only one prisoner be in the examination room at a time, even if there's more than one chair, and that no prisoner be left alone, lest he try to use dental tools as weapons. Further exacerbating the problem, only emergency cases can be seen when the prison is in lockdown, and dentists can't accept prisoners' complaints at face value, as inmates often try to jump the line by exaggerating their symptoms.
These challenges aside, there simply weren't enough dentists at Lancaster to provide every prisoner with dental care on demand. The ratio of dentists to prisoners was less than half what the state said it should be, there were no office technicians or dental hygienists and, on many occasions, Brooks had no dental assistant. Peralta doesn't argue that Brooks was responsible for these constraints. Nor could he, since Brooks had no control over the budget.
Peralta would have had the jury ignore that there was no money or staff available to treat him immediately, and hold Brooks
personally liable for failing to give Peralta care that Brooks would have found impossible to provide. Peralta claims that this approach is compelled by our decisions in Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), and Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012). In Jones, we reversed a district court's dismissal of a pretrial detainee's deliberate indifference claims because we found " no other explanation in the record than the budget concerns" for denying treatment, and " [b]udgetary constraints... do not justify cruel and unusual punishment." 781 F.2d at 771. In Snow, we reversed a district court's grant of summary judgment in favor of prison officials who delayed an inmate's surgery, partially due to a lack of resources, because the desire to avoid paying for a surgery is an " improper motive" for delaying it. 681 F.3d at 987.
As an en banc court, we're not bound by either decision. Even if we were, it wouldn't help Peralta. In Jones and Snow, plaintiffs sought both money damages and injunctions. Neither case dealt with jury instructions; the question in both was whether the case could proceed at all.
Lack of resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations. See LaMarca v. Turner, 995 F.2d 1526, 1536-39, 1542 (11th Cir. 1993) (prison official wouldn't be personally liable if he did everything he could, but prisoner could get an injunction against official in his official capacity); see also Watson v. City of Memphis, 373 U.S. 526, 537, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963) (rejecting argument that city couldn't desegregate parks because of budgetary concerns); Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (" [C]osts cannot be permitted to stand in the way of eliminating conditions below Eighth Amendment standards." ). A case seeking prospective relief thus can't be dismissed simply because there is a shortage of resources.
Damages are, by contrast, entirely retrospective. They provide redress for something officials could have done but did not. What resources were available is highly relevant because they define the spectrum of choices that officials had at their disposal. To the extent Jones and Snow can be read to apply to monetary damages against an official who lacks authority over budgeting decisions, they are overruled. Judge Christen claims we are also overruling Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979), but this is plainly not so. Spain involved only injunctive relief; it has nothing to say about damages, much less jury instructions. See id. at 192.
Peralta seeks only damages. Allowing the jury to consider the constraints under which an individual doctor operates in determining whether he is liable for money damages because he was deliberately indifferent doesn't mean that prisoners have no remedy for violations of their Eighth Amendment rights. For example, although prisoners can't sue states for monetary relief, they can sue for injunctions to correct unconstitutional prison conditions. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 & n.10 (1989); see also Brown v. Plata, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011).
Section 1983 also authorizes prisoners to sue municipal entities for damages if the enforcement of a municipal policy or practice, or the decision of a final municipal policymaker, caused the Eighth Amendment violation. See City of St. Louis v. Praprotnik, 485 U.S. 112, 138, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988);
Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 & n.7, 685-86 (1978). A chronic shortage of resources may well amount to a policy or practice for which monetary relief may be available under Monell, but Monell claims can't be brought against states, which are protected by the Eleventh Amendment. See, e.g., Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The prison where Peralta was held was, of course, run by the state.
Our dissenting colleagues would have the jury hold Brooks liable for delay in treatment caused by shortages beyond his control, on the theory that the state will wind up paying any damages award. According to the dissenters, this will give the state an incentive to improve prison conditions. Christen Dissent 28-30; Hurwitz Dissent 43-45. But the state is protected from monetary damages by the Eleventh Amendment. We may not circumvent this protection by imputing the state's wrongdoing to an employee who himself has committed no wrong. The dissenters attempt an end run around the Eleventh Amendment by subjecting the state to precisely the kind of economic pressure against which the amendment protects it.
We have no quarrel with the dissenters' view that Peralta may have suffered an Eighth Amendment violation. If the state provided insufficient resources to accord inmates adequate medical care, it could be compelled to correct those conditions. See Plata, 131 S.Ct. 1910, 179 L.Ed.2d 969; Spain, 600 F.2d 189. But such a lawsuit could provide no redress for past constitutional violations because the state is protected by sovereign immunity, " a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today." Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Congress could abrogate this immunity, but it has not done so for cases brought under 42 U.S.C. § 1983. See Quern, 440 U.S. at 345. We decline to bring about by indirection what Congress has chosen not to do expressly.
An " intent requirement is either implicit in the word 'punishment' or is not; it cannot be alternately required and ignored as policy considerations might dictate." Wilson, 501 U.S. at 301-02. The Supreme Court has told us that it is. A prison medical official who fails to provide needed treatment because he lacks the necessary resources can hardly be said to have intended to punish the inmate. The challenged instruction properly advised the jury to consider the resources Brooks had available in determining whether he was deliberately indifferent.
2. The Evidence Supporting the Jury Instruction
Peralta also argues that the jury instruction shouldn't have been given, even if it was correct, because there was no evidence that budgetary constraints actually affected his treatment. Even if Peralta's argument had merit, we would reject it because he invited the error. See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Peralta himself first suggested that the evidence introduced at trial supported an instruction about budgetary constraints. He proposed an instruction that stated, as did the final instruction, that " [e]vidence has been presented during the trial regarding dental staffing levels and the availability of resources at the Lancaster correctional facility where Plaintiff Peralta was incarcerated during the time of his
alleged injuries," but his instruction would have required the jury not to consider it. Peralta's proposed instruction presupposed that there was sufficient evidence about the lack of resources at Brooks's disposal. He can't now turn around and challenge the instruction containing some of the very text he proposed, on the new theory that it's unsupported by the evidence.
In any event, there's plenty of evidence to support a finding that a lack of resources prevented Brooks from cleaning Peralta's teeth sooner. For example, in the Inmate Appeal Response, Brooks listed " staffing shortages beyond our control" as an explanation for the " waiting list for dental procedures." There was also evidence that the prison had less than half the number of dentists required by law, there were no dental hygienists and dentists frequently had to work without dental assistants.
Peralta argues that there's no proof connecting the staff shortages to his lack of care. But Brooks testified that he focused on a prisoner's most pressing complaint because he didn't have enough time, and Fitter testified that staff shortages limited the amount of time Brooks could have spent with Peralta during any visit. Peralta argues that Brooks could at least have put him on the emergency list, but the decision whether to put an inmate on the emergency list calls for a balancing of the inmate's needs against the available resources and the needs of other patients. Because resources were limited, putting Peralta on the emergency list would have delayed another prisoner's treatment. It was up to the jury to decide whether Brooks was ...