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Chess v. J. Dovey

United States Court of Appeals, Ninth Circuit

June 25, 2015

MICHAEL CHESS, Plaintiff-Appellant,
v.
J. DOVEY, Director of Corrections; ABUL, Doctor of the CDC; MIDGE MILLER, Nurse Practitioner; ROCHE, Medical Doctor of the CDC; JAMES, Medical Doctor of CDC; DIAL, Medical Doctor of CDC; G. DUDLEY, Physician's Assistant; ANITA DAVID; M. FRENCH, Nurse Practitioner; S. ABDUR-RAHMAN; T. FELKER, Warden, Defendants-Appellees

Argued and Submitted, San Francisco, California October 7, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:07-cv-01767-DAD. Dale A. Drozd, Magistrate Judge, Presiding.

SUMMARY[**]

Prisoner Civil Rights

The panel affirmed the district court's judgment, entered following a jury verdict, in an action brought under 42 U.S.C. § 1983 by a California state prisoner who alleged that he was denied constitutionally adequate medical care when members of the prison's medical staff denied him effective pain medication.

On appeal, plaintiff asserted that the magistrate judge erred in instructing the jury to give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security.

The panel first held that when a pro se civil litigant fails to object to a jury instruction, the court should review the instruction under the ordinary standard of review, rather than for plain error, if the district court and opposing party were fully aware of the potential problem with, and would-be objection to, the instruction.

The panel held that the deference instruction should not ordinarily be given in Eighth Amendment medical care cases brought by prisoners. Rather, a trial judge in an Eighth Amendment medical care case should only give the deference instruction if one party's presentation of the case plausibly draws a connection between the security-based policy or practice and the medical care decision at issue. Neither party drew such a connection in this case. Nevertheless, although the panel concluded that the jury instruction was error, it did not reverse the judgment because defendants carried their burden of showing that it was more probable than not that the jury would have reached the same verdict had it been properly instructed. The error therefore was harmless.

Stephen Patrick Blake (argued), Alexis Coll-Very, Simpson Thacher & Bartlett LLP, Palo Alto, California, for Plaintiff-Appellant.

Thomas S. Patterson (argued), Supervising Deputy Attorney General, Office of the California Attorney General, San Francisco, California; Kamala D. Harris, Attorney General, Jonathan L. Wolff, Senior Assistant Attorney General, Diana Esquivel and Vickie P. Whitney, Deputy Attorneys General, Office of the California Attorney General, Sacramento, California, for Defendants-Appellees.

Before: William A. Fletcher and Paul J. Watford, Circuit Judges, and Kevin Thomas Duffy, District Judge.[*] Opinion by Judge W. Fletcher.

OPINION

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W. FLETCHER, Circuit Judge:

Appellant Michael Chess brought this action under 42 U.S.C. § 1983 against eight members of the medical staff at California's High Desert State Prison, alleging that they denied him constitutionally adequate medical care while he was incarcerated there. Chess represented himself at trial. Two Eighth Amendment claims of deliberate indifference went to trial. As characterized in the final pretrial order, they were (1) that " defendants denied [plaintiff] effective pain medication; specifically, that defendants purportedly discontinued plaintiff's use of methadone solely because a High Desert State Prison policy prohibit[ed] general-population inmates from receiving that medication" ; and (2) that " defendants prescribed plaintiff medication, including Tylenol, aspirin, niacin, and Naprosyn, knowing that those drugs were harmful to his liver." The jury returned a verdict for defendants on both claims.

Chess makes only one contention on appeal. He contends that the magistrate judge erred in giving a jury instruction that read in pertinent part:

In determining whether the defendants violated the plaintiff's rights as alleged, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security.

This language is taken from a Ninth Circuit model instruction based on Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010), and is entitled, " Prisoner's Claim [Regarding] Conditions of Confinement/Medical Care." See Ninth Cir. Model Civ. Jury Instr. § 9.25 (2010 ed.). Chess did not object to the instruction.

We must first decide the standard of review that governs Chess's appellate challenge to the jury instruction. We hold that when a pro se civil litigant fails to object to a jury instruction, we will review the instruction under the ordinary standard of review, rather than for plain error, if the district court and opposing party were fully aware of the potential problem with, and would-be objection to, the instruction. In such circumstances, an objection would be tantamount to a " pointless formality." United States v. Payne, 944 F.2d 1458, 1464 (9th Cir. 1991).

We must also decide whether the magistrate judge erred in giving the challenged instruction. Contrary to the title of the model instruction, we hold that the deference instruction should not ordinarily be given in Eighth Amendment medical care cases brought by prisoners. Rather, the instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy. That was not the case here. We therefore hold that giving the instruction in this case was error. However, because the error was harmless, we affirm the judgment of the district court.

I. Facts and Procedural Background

A. The Narcotics Policy at HDSP

Chess was imprisoned in California's High Desert State Prison (" HDSP" ) from November 21, 2006, until February 8, 2011. A prison policy in effect from sometime in 2006 to sometime in 2007 (the precise dates are not specified in the record) prohibited members of HDSP medical staff from prescribing narcotic drugs to prisoners who were assigned to general inmate housing. However, medical staff were allowed to dispense narcotic drugs to prisoners while in the prison's infirmary, the Correctional Treatment Center (" CTC" ).

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Defendant Dr. Steven Roche, the medical director of the prison at the relevant time, testified about the HDSP policy:

[T]he policy was that we had narcotics available for use in the emergency room and in the infirmary. The issue was that we could not control narcotics on the yards. We didn't have a process in place to document the use of narcotics. And so essentially the warden decided that he was not going to allow narcotics on the yard at all. If a patient needed narcotics, morphine, those kinds of things, then he would have to be admitted to the infirmary and given the narcotics in the infirmary or transferred to a different facility that had the ability to take care of him.
And again, the problem with the narcotics was that these were valuable to inmates. I mean they had a certain cash value depending upon the narcotic. In addition, just inventorying the narcotics within the clinic itself was inadequate. The pharmacist at the time called the Board of Pharmacy because he was not able to verify who was using the narcotics that he was bringing out to the clinic at one point, and the Board of Pharmacy said that by pharmacy regulations, he did not have to provide narcotics if he didn't know where they were going.

B. Evidence at Trial

Chess had been transferred from another California state prison to HDSP. He arrived with a variety of ailments, including blindness in his left eye, hepatitis C, hypertriglyceridemia (elevated levels of triglycerides), left varicocele (enlargement of the scrotum vein), gallstones, kidney stones, degenerative disc disease of the cervical spine, bloody urine, and a seizure disorder. According to his complaint, these ailments caused Chess to suffer cramps in his lower extremities, sharp abdominal pain, uncontrolled muscle twitching, headaches, skin rashes, loss of balance, and constant pain. Prior to his transfer to HDSP, doctors at California State Prison, Solano, had prescribed Klonopin (a muscle relaxant), methadone, and other medications.

Chess was assigned to the general population when he arrived at HDSP, but as a new prisoner he was initially placed in the CTC. While in the CTC, medical staff gave him " tapering-off" doses of Klonopin until he was fully weaned from the drug. Medical staff cut off his methadone without any tapering. Chess was discharged from the CTC into the general prison population on December 26, 2006, a little more than a month after his arrival at the prison.

Chess testified that he suffered substantial pain while in the CTC due to sudden withdrawal of his methadone:

And yes, I did ask to be put back on methadone. I was on it for about four or five years before I went up there, and I have documentation that states from a liver specialist that it is not very harmful to your liver.
They keep saying--they kept saying yesterday that they couldn't give it to me because they didn't allow it in general population, but the CTC, the Correctional Treatment Center where they had me, is not a general population. It's like a little small hospital with single rooms. And the whole time I spent there was a nightmare. It was miserable. And I was in pain the whole time. And like I said, the [naproxen], the aspirin, multivitamins, I don't have any idea why they gave those to me. That's not a pain medication. And neither is folic acid. That's a vitamin B. And they say they treated me for pain, which is not true.
And the whole time I spent in there until the time they did put me in general population, I was in pain. And I don't know what their real reason was, why

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they wouldn't treat me for pain, but they wouldn't and they didn't.

After his placement in general population housing, Chess repeatedly asked for methadone and complained of pain. He filed numerous administrative grievances and frequently visited the defendant doctors, nurses, and physician assistants. The medical staff at HDSP never prescribed methadone, despite Chess's numerous requests and reiterated complaints that his prescribed pain medication was inadequate.

Eight members of HDSP medical staff were named as defendants--four doctors, two nurse practitioners, and two physician assistants. They all testified at trial. Chess testified on his own behalf, but did not put on the stand any expert witness or otherwise provide expert evidence to contradict defendants' testimony.

Dr. Roche did not treat Chess directly but oversaw and approved his treatment. He testified that there were important medical reasons to take Chess off of methadone. In ...


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