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Full Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CHESS, No. 12-16516
Plaintiff-Appellant,
D.C. No.
v. 2:07-cv-01767-
DAD
J. DOVEY, Director of Corrections;
ABUL, Doctor of the CDC; MIDGE
MILLER, Nurse Practitioner; ROCHE, OPINION
Medical Doctor of the CDC; JAMES,
Medical Doctor of CDC; DIAL,
Medical Doctor of CDC; G.
DUDLEY, Physicianâs Assistant;
ANITA DAVID; M. FRENCH, Nurse
Practitioner; S. ABDUR-RAHMAN; T.
FELKER, Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, Magistrate Judge, Presiding
Argued and Submitted
October 7, 2014âSan Francisco, California
Filed June 25, 2015
2 CHESS V. DOVEY
Before: William A. Fletcher and Paul J. Watford, Circuit
Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge W. Fletcher
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district courtâs 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 prisonâs 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
*
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHESS V. DOVEY 3
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 partyâs 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.
COUNSEL
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.
4 CHESS V. DOVEY
OPINION
W. FLETCHER, Circuit Judge:
Appellant Michael Chess brought this action under
42 U.S.C. § 1983 against eight members of the medical staff
at Californiaâs 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 âdefendants denied [plaintiff] effective pain
medication; specifically, that defendants purportedly
discontinued plaintiffâs use of methadone solely because a
High Desert State Prison policy prohibit[ed] general-
population inmates from receiving that medicationâ; and
(2) that âdefendants prescribed plaintiff medication, including
Tylenol, aspirin, niacin, and Naprosyn, knowing that those
drugs were harmful to his liver.â 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 plaintiffâs 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.
CHESS V. DOVEY 5
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, âPrisonerâs Claim [Regarding] Conditions of
Confinement/Medical Care.â 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
Chessâs 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
âpointless formality.â 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.
6 CHESS V. DOVEY
I. Facts and Procedural Background
A. The Narcotics Policy at HDSP
Chess was imprisoned in Californiaâs High Desert State
Prison (âHDSPâ) 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
prisonâs infirmary, the Correctional Treatment Center
(âCTCâ).
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 didnât
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
CHESS V. DOVEY 7
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 didnât 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
âtapering-offâ 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
8 CHESS V. DOVEY
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 sayingâthey kept saying
yesterday that they couldnât give it to me
because they didnât allow it in general
population, but the CTC, the Correctional
Treatment Center where they had me, is not a
general population. Itâs 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 donât have any idea why they
gave those to me. Thatâs not a pain
medication. And neither is folic acid. Thatâs
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 donât know
what their real reason was, why they wouldnât
CHESS V. DOVEY 9
treat me for pain, but they wouldnât and they
didnât.
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 Chessâs numerous requests and reiterated complaints
that his prescribed pain medication was inadequate.
Eight members of HDSP medical staff were named as
defendantsâfour 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
defendantsâ 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 response to a question from the judge, he explained:
I think my staff at the time evaluated him
appropriately, hospitalized him, and we[a]ned
him off of his Klonopin. The problem with a
combination of sedative drugs and a drug like
methadone is [that] there are complications to
this, side effects to it, including death.
Methadone is a very complicated drug to
administer and to monitor. . . . I would have
to say that the combination that he was on
[before coming to HDSP] was somewhat
inappropriate.
10 CHESS V. DOVEY
In response to a question from Chess, Dr. Roche testified:
There are benefits to almost every medicine
you can think of, but there are also risks to
almost every medicine you can think of.
For instance, that type of reasoning was
why you were hospitalized when you first
came [to HDSP] and you were taken off of
your Klonopin and your methadone because
theyâre dangerous in that environment, and
particularly in a patient like yourself with
your compliance issues.
Dr. Roche described the narcotics policy at HDSP, as
indicated above, but except for his reference to the
dangerousness of Klonopin and methadone âin that
environment,â he never stated or even suggested that the
refusal to provide methadone to Chess was based on the
policy.
Dr. Lino Dial provided initial treatment to Chess when he
arrived at HDSP. He saw Chess only once, immediately after
his arrival. According to the final pretrial order, the
following was undisputed:
8. On November 22, 2006, defendant Dr. Dial
examined plaintiff and evaluated his
medications. 9. Plaintiffâs medications were
adjusted to comply with HDSP policies. 10.
From 2006 to 2007, HDSP had a policy to not
provide methadone to patients in general
population. 11. Defendant Dr. Dial
CHESS V. DOVEY 11
prescribed plaintiff Naprosyn/Naproxen
[Aleve] and aspirin to treat his pain.
On direct examination Dr. Dial did not mention HDSPâs
narcotics policy as a basis for ending Chessâs methadone
prescription. Instead, he testified that he ended it because of
the danger it posed to Chess:
I remember stopping the medicine. Not every
one, but some. And I heard earlier one of
them is the methadone. . . . And thereâs a
reason for that. At that time people were
dying from methadone. Not by the hundreds,
but by the thousands.
Dr. Dial said there were two bases for his characterization of
methadone as posing a danger. He described a warning from
the U.S. Food and Drug Administration, and was about to
describe another when the judge cut him off, saying âwe
donât have a question.â On cross examination, defendantsâ
attorney described, one by one, all of the medical conditions
from which Chess suffered, and as to each one, asked whether
that condition was treated with methadone. Dr. Dial
answered ânoâ each time. The attorney then asked, âWas
your decision to discontinue Mr. Chessâs methadone
prescription based on the âno narcoticsâ policy that was in
place at the present time?â Dr. Dial answered, âCorrect.â
Dr. Daniel James was involved in Chessâs initial
treatment in the CTC and in processing at least one of
Chessâs internal administrative appeals, but he had no
memory of treating Chess. He testified based solely on
Chessâs medical records. Dr. James mentioned methadone
only once, in response to questions by the judge:
12 CHESS V. DOVEY
Q: [T]here doesnât appear to be any mention
in your treatment notes about any gradual
reduction or change in the methadone
prescription like there was with the Klonopin.
Why is that?
A: I think that withdrawal from a narcotic
doesnât involve the same kind of risk of
seizures is the main thing.
Q: It seems like itâs not addressed at all.
A: No, I canât answer that. Iâm not sure why
it wasnât. And I donât have my whole
records.
Dr. James never mentioned HDSPâs narcotics policy in his
testimony.
Dr. Salahuddin Abdur-Rahman treated Chess several
times at HDSP. He was asked about two specific occasions
during which Chess was experiencing pain, and about the
appropriateness of methadone as treatment for the pain. The
first was on July 4, 2007, when Chess had been prescribed
gabapentin, a neuropathic pain reliever. Dr. Abdur-Rahman
was asked whether he saw anything that indicated âthat he
needed something stronger, such as methadone.â He
answered, âI did not.â The second was on September 5,
2007, when Chess had been prescribed morphine for pain
after an upper gastrointestinal endoscopy. Dr. Abdur-
Rahman was asked whether he had âany informationâ
indicating that the morphine was âinadequate to address any
complaints of pain.â He answered, âI did not.â Then, as a
catch-all question, Dr. Abdur-Rahman was asked, âOn all
CHESS V. DOVEY 13
those occasions that you saw Mr. Chess or reviewed his
medical records, did you have any information from which
you could conclude that he required methadone or stronger
pain medication?â He answered, âI did not.â Dr. Abdur-
Rahman never mentioned HDSPâs narcotics policy in his
testimony.
Mary Miller, a nurse practitioner, treated Chess on several
occasions during his time at HDSP. Ms. Miller first treated
Chess in the CTC, shortly after his arrival. According to a
stipulation in the pretrial order, âOn November 22, 2006,
defendant nurse practitioner Miller examined plaintiff and
carried out defendant Dr. Dialâs orders.â Defendantsâ counsel
asked, âWas there anything during your examination of Mr.
Chess on that first visit that indicated to you that he needed
methadone to address his complaints of pain?â She
answered, âNo.â She was asked at two points later in her
testimony whether methadone was an appropriate treatment
for Chess. She answered ânoâ each time. Finally, she was
asked whether the prisonâs narcotics policy was relevant to
her treatment decisions:
Q: On all those occasions that you treated Mr.
Chess, did you decide not to prescribe the
methadone because of the âno narcoticsâ
policy at the prison?
A: No. I decided that because I didnât think
it was best for him.
Melody French, another nurse practitioner, treated Chess
on several occasions. Methadone was mentioned three times
during her testimony. First, Ms. French testified that
methadone does not adversely affect liver function any more
14 CHESS V. DOVEY
than any other medication. Second, she testified that Chess
had asked for methadone as treatment for the pain he was
suffering from his varicocele, and that she had refused. When
asked, âWhy would you not treat his varicocele with
methadone?â she answered, âItâs not appropriate.â Finally,
she was asked a catch-all question:
Q: On all those occasions that you either saw
Mr. Chess or reviewed his medical records,
was there any evidence from which you can
conclude that methadone was indicated to
treat any of his complaints?
A: No.
Ms. French did not mention HDSPâs narcotics policy in her
testimony.
Gilian Dudley, a physician assistant, met with Chess once
to address an administrative complaint and she treated him on
two occasions. In March 2007, she interviewed Chess in
connection with an administrative appeal. Nothing in Chessâs
medical record indicated to Ms. Dudley that he needed
methadone. In October 2007, she increased his dosage of
gabapentin. In November 2007, following his return from an
outside hospital, she continued a prescription of morphine
that had been initiated at the hospital. She testified that on
both occasions the medication she prescribed was sufficient
to treat Chessâs pain, and that methadone was not needed.
Ms. Dudley did not mention HDSPâs narcotics policy in her
testimony.
Finally, Anita David, another physician assistant, treated
Chess on several occasions. One of them was in November
CHESS V. DOVEY 15
2007, when she prescribed Chess decreasing doses of
morphine following his return from the outside hospital.
Methadone was mentioned only once in Ms. Davidâs
testimony, in connection with her treatment of Chess on April
2, 2007. She testified that Chess did not require methadone
for his pain on that occasion. Ms. David did not mention
HDSPâs narcotics policy in her testimony.
Throughout his stay at HDSP, defendants continued to
provide non-narcotic painkillers to Chess. On at least two
occasions, they gave him a narcotic drug, morphine, for
specific conditions, but they never gave him methadone. It is
not entirely clear from the transcript if Chess was a patient in
the CTC when he was given morphine, but we infer that he
was. In their testimony, defendants attributed unnecessary
pain Chess might have experienced while he was at HDSP to
his ânoncompliance.â It is undisputed that Chess often
refused to take the medication provided to him. Chess
acknowledged that he did not take naproxen at all, and
refused to continue taking gabapentin because, in his view,
these drugs were harmful to his liver.
Chess complained on several occasions that the non-
narcotic pain medicine he received was damaging his liver.
Defendants testified, however, that the medications they
prescribed posed no harm to his liver. For example, Ms.
David testified that she did not worry that gabapentin would
harm Chessâs liver because it is âeliminated a hundred
percent through the kidney.â Defendants did acknowledge
one prescription that might have harmed Chessâs liver. Dr.
Mayer Horensten, whom Chess did not name as a defendant
and who did not testify, ordered a dosage of Tylenol that
could have harmed his liver if Chess had taken it as
16 CHESS V. DOVEY
prescribed. It is unclear from the record, however, how
much, if any, Tylenol Chess took pursuant to the prescription.
C. The Jury Instruction
The magistrate judge solicited the partiesâ views on jury
instructions. Defendants proposed an instruction identical to
the Ninth Circuit model instruction entitled, âPrisonerâs
Claim [Regarding] Conditions of Confinement/Medical
Care.â See Ninth Cir. Model Jury Instr. § 9.25 (2010 ed.).
The proposed instruction, which was ultimately given,
described the elements of deliberate indifference and then
included the following language:
In determining whether the defendants
violated the plaintiffâs 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 was added to the model instruction in the wake
of our decision in Norwood v. Vance, 591 F.3d 1062 (9th Cir.
2010). See Ninth Cir. Model Civ. Jury Instr. § 9.25 cmt.
Before approving the proposed jury instructions, the judge
asked Chess if he had reviewed them and was prepared to
state any objections. Chess answered that he had reviewed
them but was not prepared to object. The judge made it clear
that Chess should object at the next opportunity if he did not
like the instructions.
CHESS V. DOVEY 17
The next day, after defendantsâ counsel argued in favor of
the instruction, the judge expressed misgivings about the
deference language. He stated:
Now, I think I sort of know what youâre
trying to touch upon in including that
proposed language, and maybe that proposed
language might be appropriate if the
defendants in front of us were prison
administrators who were trying to beâor who
a plaintiff was trying to hold liable because of
policies they had implemented.
But how does that language apply to these
defendants? They canât take policy into
consideration in deciding whether or not to
provide constitutionally adequate medical
care.
Defendantsâ counsel went back and forth with the judge
about the applicability of the deference language in the
circumstances of this case. The judge indicated that he was
âconsidering striking [the deference] languageâ and asked
Chess to weigh in again. Chess responded: âI donât quite
understand exactly, but I donât have anyâIâm going to leave
that up to you.â
Later that day, the judge raised the instruction issue once
more. He noted that the deference language was added to the
model instruction after our decision in Norwood, which was
a conditions of confinement case. But he thought âan
argument can definitely be made that [Norwood] does not
require the inclusion of that language when the question is an
Eighth Amendment adequate medical care claim as opposed
18 CHESS V. DOVEY
to an Eighth Amendment excessive use of force or other
conditions of confinement claim.â He expressed skepticism
that it applied to medical care cases given that â[a] medical
care claim really is not a classic conditions of confinement
claim.â He indicated that if it were up to him, he might not
extend it to this case and speculated that the circuit court
might someday address the issue. Ultimately, however, he
approved the instruction because it was based on the Ninth
Circuit model instruction and because âit is at least arguable
in this context that we may be in that gray area where policy
and medical care or that medical care decisions have to at
least take into some account, to some degree, policy issues.â
D. Verdict, Judgment, and Appeal
After the judge denied defendantsâ motion for judgment
as a matter of law, the jury returned a verdict for defendants,
upon which the judge entered judgment. Chess timely
appealed. We appointed counsel for Chess on appeal.
II. Standard of Review
Defendants argue that we should not review Chessâs
challenge to the jury instruction because he waived it by
failing to make a timely objection in the trial court. Chess
argues that we should review his challenge de novo, or at
least for plain error. We hold, in the circumstances of this
case, that we should review the instruction de novo. Because
the judge comprehensively articulated the problem with the
instruction from Chessâs point of view, and because Chess, a
pro se litigant, effectively gave the judge his proxy, a formal
objection was unnecessary. Consequently, we hold that we
should review the jury instruction as if Chess had objected to
it. Because Chess contends that the instruction is an incorrect
CHESS V. DOVEY 19
statement of the law, our review is de novo. See Clem v.
Lomeli, 566 F.3d 1177, 1180â81 (9th Cir. 2009). However,
we will not reverse the judgment against Chess if the error
was harmless. See id. at 1182.
A brief overview of our past and present practice of
reviewing jury instructions will help explain our holding.
Federal Rule of Civil Procedure 51 requires that a âparty who
objects to an instruction or the failure to give an instruction
must do so on the record, stating distinctly the matter
objected to and the grounds for the objection.â Fed. R. Civ.
P. 51(c)(1). When a party raises a contemporaneous
objection to a jury instruction, we review the jury instruction
either de novo or for abuse of discretion, depending on the
nature of the error. See Abromson v. Am. Pac. Corp.,
114 F.3d 898, 902 (9th Cir. 1997) (abuse of discretion review
of the trial courtâs formulation of civil jury instructions);
Mockler v. Multnomah Cnty., 140 F.3d 808, 812 (9th Cir.
1998) (de novo review of civil jury instructions that misstate
the law).
We approach unpreserved challenges differently. In the
past, we refused to review challenges to jury instructions in
civil cases where the party challenging the instruction failed
to raise a timely objection in the trial court. See Hammer v.
Gross, 932 F.2d 842, 847 (9th Cir. 1991) (en banc) (âThis
court has . . . declared that there is no âplain errorâ exception
in civil cases in this circuit.â). But even in those days, when
we âenjoyed a reputation as the strictest enforcer of Rule 51,â
id., we âacknowledged a limited exception to our strict
interpretation of Rule 51.â McGonigle v. Combs, 968 F.2d
810, 823 (9th Cir. 1992). We would review challenges to
jury instructions under our ordinary standards of review,
without requiring a plaintiff to make a âfutile formal
20 CHESS V. DOVEY
objection,â â[w]here the district court [wa]s aware of a
partyâs concerns with an instruction, and further objection
would [have] be[en] unavailing.â Id. This practice came to
be known as the âpointless formalityâ exception. See Payne,
944 F.2d at 1464.
We changed our review of jury instructions after
Congress amended Rule 51 in 2003 to provide for plain error
review in civil cases. See Fed. R. Civ. P. 51(d)(2). Now,
when a litigant in a civil trial fails to object to a jury
instruction, we may review the challenged jury instruction for
plain error. C.B. v. City of Sonora, 769 F.3d 1005, 1016 (9th
Cir. 2014) (en banc).
The pointless formality exception has survived the 2003
amendment to Rule 51. Cf. Norwood, 591 F.3d at 1066
(rejecting the argument that the appellant failed to preserve an
objection to a jury instruction because â[a]n objection need
not be formalâ and âraising the issue again via formal
objection would be both unavailing and a pointless
formalityâ) (internal quotation marks and citations omitted));
Citrus El Dorado, LLC v. Stearns Bank, 552 F. Appâx 625,
627 (9th Cir. 2014) (âWe need not decide whether an
objection was preserved under the âpointless formalityâ
exception, because the instruction was plain error.â (citation
omitted)). The only thing that has changed is the general rule
from which the exception is taken. Previously the general
rule was forfeiture; now it is plain error review.
In this case, an objection by Chess to the instruction now
at issue would have been the functional equivalent of a
pointless formality. An âobjection may be a âpointless
formalityâ when (1) throughout the trial the party argued the
disputed matter with the court, (2) it is clear from the record
CHESS V. DOVEY 21
that the court knew the partyâs grounds for disagreement with
the instruction, and (3) the party offered an alternative
instruction.â Payne, 944 F.2d at 1464. There can be no
doubt that the trial court knew which part of the instruction
was problematic and knew the specific reasons why. On two
separate occasions, the judge articulated the potential
problems with the deference language in the proposed jury
instruction: (1) it was irrelevant because Chess was suing
prison doctors, and not the administrators who adopted the
narcotics policy; and (2) it was inappropriate in medical care
cases, as distinct from excessive force and conditions of
confinement cases. The judge also recognized the relevant
authority, the Norwood case. The judge was right when he
said, âI did identify the main issue raised by the inclusion of
that language in a case such as this.â
It does not matter that Chess did not âargue[] the disputed
matter with the court.â Medtronic, Inc. v. White, 526 F.3d
487, 495 (9th Cir. 2008) (quoting Glover v. BIC Corp., 6 F.3d
1318, 1326 (9th Cir. 1993)). Although Chessâwho was
unrepresentedâdid not raise the issue himself, the judge
understood it and, in effect, argued it on his behalf. The
judge characterized the problem from the standpoint of
someone in Chessâs position, and Chess deferred to the judge.
Nor was it necessary for Chess himself to have offered an
âalternative instruction,â id., for the judge proposed the
alternative: strike the deference language and leave the rest of
the instruction intact. See Payne, 944 F.2d at 1464.
We will not punish a pro se litigant with plain error rather
than de novo review simply because he failed to say the
words âI objectâ when the trial judge and defendants knew
why the instruction might be erroneous and what the
objection would have been. Reviewing for plain error in this
22 CHESS V. DOVEY
case would run contrary to our âduty to ensure that pro se
litigants do not lose their right to a hearing on the merits of
their claim due to ignorance of technical procedural
requirements.â Balistreri v. Pacifica Police Depât, 901 F.2d
696, 699 (9th Cir. 1990). Further, plain error review would
do nothing to advance the purpose of Rule 51, which is âto
enable the trial judge to avoid error by affording him an
opportunity to correct statements and avoid omissions in his
charge before the cause has been decided by the jury.â Inv.
Serv. Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir.
1975); see also Palmer v. Hoffman, 318 U.S. 109, 119 (1943)
(âIn fairness to the trial court and to the parties, objections to
a charge must be sufficiently specific to bring into focus the
precise nature of the alleged error.â). Here, Chess did not
attempt to âsandbagâ the trial judge by failing to object in
order to take out insurance against an adverse verdict. See
Elder v. Holloway, 984 F.2d 991, 998 (9th Cir. 1993)
(Kozinski, J., dissenting) (the purpose of Rule 51 is to
preclude parties from âsandbag[ging]â the trial judge to get
âtwo bites at the appleâ). Chess was confused and legally
unsophisticated. But the judge and defendantsâ lawyer were
not. They knew what the problem was and debated the issue
vigorously. In these circumstances, any objection by Chess
would have been ââsuperfluous and futile,ââ and plain error
review would be too harsh a sanction for failure to object.
Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1289 (9th
Cir. 2014) (quoting Dorn v. Burlington N. Santa Fe R.R. Co.,
397 F.3d 1183, 1189 (9th Cir. 2005)).
III. Analysis of the Jury Instruction
After informing the jury of the elements Chess needed to
prove to prevail on his claims, the magistrate judge added a
deference instruction. He directed the jury, pursuant to our
CHESS V. DOVEY 23
circuitâs model instruction, to âgive 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.â The magistrate
judge was right to doubt the relevance, and hence the
propriety, of this instruction. See United States v. Warren,
984 F.2d 325, 327 n.3 (9th Cir. 1993) (âUse of a model jury
instruction does not preclude a finding of error.â). For the
reasons that follow, we conclude that trial judges in prison
medical care cases should not instruct jurors to defer to the
adoption and implementation of security-based prison
policies, unless a partyâs presentation of the case draws a
plausible connection between a security-based policy or
practice and the challenged medical care decision. No other
circuit routinely requires this additional deference in all
medical care cases,1 and neither should we.
A. The Instruction
The deference language at issue in this case derives from
Whitley v. Albers, 475 U.S. 312, 321â22 (1986). In that case,
an inmate alleged that he was subject to cruel and unusual
punishment when he was shot by a prison guard during a riot
in which another guard was taken hostage. Id. At 316â17.
1
The Ninth Circuitâs model jury instructions are also unique in
including the deference language in Eighth Amendment conditions-of-
confinement cases. Except for language in a Fifth Circuit model
instruction, see Pattern Jury Instr., Civ., 5th Cir., § 10.7 (2014), and a
model instruction developed by a district judge on the First Circuit, the
deference language does not appear in any other circuitâs model
instructions for prisoner rightsâ claims. See, e.g., Instr. for Civ. Rights
Claims under § 1983, 3d Cir., §§ 4.10, 4.11.1 (2014); Fed. Civ. Jury Instr.
of 7th Cir., §§ 7.14, 7.15 (2009 rev.); 8th Cir. Civ. Jury Instr., §§ 4.42,
4.43 (2014); 11th Cir. Civ. Pattern Jury Instr., §§ 5.3, 5.4, 5.5 (2013).
24 CHESS V. DOVEY
The Supreme Court adopted a heightened subjective standard
for excessive force claimsâmalicious and sadisticâinstead
of the subjective standard governing medical care casesâ
deliberate indifference. Id. at 320â21. The asymmetry was
appropriate, the Court explained, because âthe Stateâs
responsibility to attend to the medical needs of prisoners does
not ordinarily clash with other equally important
governmental responsibilities.â Id. at 320. In contrast, when
prison officials decide to use force to restore order, they act
âin haste, under pressureâ and must balance competing
institutional concerns for the safety of prison staff or other
inmates. Id.
As a result of Whitley, our circuitâs model jury instruction
for prisonersâ excessive force claims directs jurors to âgive
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 in a
prison.â Ninth Cir. Model Civ. Jury Instr. § 9.24 (2013 ed.);
see Norwood, 591 F.3d at 1067. In Norwood, a divided panel
of this court held that the deference instruction must be given,
not only in excessive force cases, but also in conditions of
confinement cases. Id. (âPrison officials are entitled to
deference whether a prisoner challenges excessive force or
conditions of confinement.â). However, we said nothing in
Norwood about medical care cases.
We see nothing in the reasoning of Norwood that leads us
generally to require its deference instruction in medical care
cases. First, Norwood derived the deference language from
Bell v. Wolfish, 441 U.S. 520 (1979), which was âitself a
conditions of confinement case.â Norwood, 591 F.3d at
1067. We cannot do the same derivation here, for the
CHESS V. DOVEY 25
Supreme Court has not used the same deference language in
a medical care case.
Second, and more important, security considerations are
usually not present in medical care cases. In the great
majority of medical cases, the plaintiff does not point to a
security-based practice or policy as the source of his or her
harm, and defendants in such cases do not defend their
actions on the basis of such a practice or policy. Rather, in
the typical case, the plaintiff challenges prison medical staffâs
refusal or failure to provide certain care. The refusal or
failure to provide such care is sometimes based on an
administrative policy, but these policies typically do not
relate to security or discipline. See, e.g., Colwell v.
Bannister, 763 F.3d 1060, 1063â64 (9th Cir. 2014) (âIt is the
policy of the Department that inmates with cataracts will be
evaluated on a case by case basis, taking into consideration
their ability to function within their current living
environment.â (quoting the prisonâs policy)); Snow v.
McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (describing the
factors a prison medical review board was to consider in
deciding whether to approve significant medical procedures,
such as âthe length of the inmateâs remaining sentence, how
well the inmate is able to perform activities of daily living,
the available resources, and the risks and benefits of the
proposalâ), overruled by Peralta v. Dillard, 744 F.3d 1076
(9th Cir. 2014) (en banc). In these circumstances, where the
parties do not put into issue a security-based policy, the
deference instruction has no âfoundation in the evidenceâ and
should not be given. Clem, 566 F.3d at 1181 (quoting Dang
v. Cross, 422 F.3d 800, 804â05 (9th Cir. 2005)).
Third, the Norwood panel reasoned that it made sense to
use the deference instruction, which we already use in cases
26 CHESS V. DOVEY
of excessive force, in cases dealing with conditions of
confinement because the use of force and restrictive
confinement (which was at issue in Norwood) âare often flip
sides of the same coin: A more restrictive confinement may
diminish the need for force and vice versa.â Norwood,
591 F.3d at 1067. In our view, medical treatment is quite a
different currency. It is different because âthe Stateâs
responsibility to attend to the medical needs of prisoners does
not ordinarily clash with other equally important
governmental responsibilities.â Whitley, 475 U.S. at 320; see
also Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983)
(â[T]he policy of deferring to the judgment of prison officials
in matters of prison discipline and security does not usually
apply in the context of medical care to the same degree as in
other contexts.â). And decisions about medical care and
policy are not ordinarily made in haste or under stress, unlike
many decisions about the use of force or restrictive
confinement. Consequently, â[t]he requirement of deliberate
indifference is less stringent in cases involving a prisonerâs
medical needs than in other cases involving harm to
incarcerated individuals.â McGuckin v. Smith, 974 F.2d
1050, 1060 (9th Cir. 1992), overruled in part on other
grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136
(9th Cir. 1997) (en banc). For this reason, in the great
majority of cases, ââ[i]n deciding whether there has been
deliberate indifference to an inmateâs serious medical needs,
we need not defer to the judgment of prison doctors or
administrators.ââ Colwell, 763 F.3d at 1066 (quoting Hunt v.
Dental Depât, 865 F.2d 198, 200 (9th Cir. 1989)).
While the Norwood instruction is inappropriate in most
medical care cases, Norwoodâs logic leads us to recognize
that the instruction may sometimes, though rarely, be
appropriate. We must be attentive to the differences among
CHESS V. DOVEY 27
medical cases. Cf. Whitley, 475 U.S. at 320 (claims under the
Eighth Amendment must be analyzed âwith due regard for
differences in the kind of conduct against which an Eighth
Amendment objection is lodgedâ). Not all of them are
ordinary. There may be outlier cases in which medical care
and security concerns genuinely clash and prison personnel
must make their medical care decisions in light of those
concerns. See, e.g., Clement v. Gomez, 298 F.3d 898, 905 n.4
(9th Cir. 2002) (defendants delayed treating inmates exposed
to the pepper spray they used to stop a fight because they
needed to maintain order first, which made the case
âdiffer[ent] from most cases involving the deprivation of
medical needsâ). In those situations, prison officials will
have to balance prisoner health and safety against âcompeting
institutional concerns for the safety of prison staff or other
inmates.â Whitley, 475 U.S. at 320. Because this balancing
requires the âexpert judgmentsâ of prison officials, these
decisions are âentitled to deference,â just as they are in
conditions of confinement cases. Norwood, 591 F.3d at 1067;
see Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014) (en
banc) (âWhen evaluating medical care and deliberate
indifference, security considerations inherent in the
functioning of a penological institution must be given
significant weight.â); see also Florence v. Bd. of Chosen
Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1518
(2012) (âThe Court has held that deference must be given to
the officials in charge of the jail unless there is âsubstantial
evidenceâ demonstrating their response to the situation is
exaggerated.â (quoting Block v. Rutherford, 468 U.S. 576,
584â85 (1984))).
In light of the foregoing, we hold that a trial judge may
instruct a jury to defer to a policy or practice adopted and
implemented by prison officials only when that policy or
28 CHESS V. DOVEY
practice addresses bona fide safety and security concerns, and
when there is evidence that the challenged medical decision
was made pursuant to that security-based policy or practice.
Put another way, the trial judge in an Eighth Amendment
medical care case should not give the deference instruction
unless one partyâs presentation of the case plausibly draws a
connection between the security-based policy or practice and
the medical care decision at issue.
In Chessâs case, this connection was lacking. It was
therefore error for the magistrate judge to give the deference
instruction. Chess alleged that defendants denied him
methadone solely because a High Desert State Prison policy
prohibits general population inmates from receiving that
medication. But, crucially, he did not introduce any evidence
at trial that the narcotics policy affected the key decision he
challengedâdefendantsâ decision to cut off methadone,
rather than tapering it off while he was in the CTC. He
testified that âthe whole time I spent in [the CTC] until the
time they did put me in the general population, I was in pain.
And I donât know what their real reason was, why they
wouldnât treat me for pain, but they wouldnât and they
didnât.â Chess did not dispute that the narcotics policy
explicitly allowed the administration of methadone in the
CTC. Indeed, he told the jury in his opening statement that,
although defendants claimed that they could not give him
methadone because he was in general population housing,
they could have provided it to him in the CTC. He explained,
â[T]hey have something up there which is called CTC. Itâs
a treatment center, like a little hospital. And thatâs not the
general population. They could have went and got a
nonformulary drug, just like they did for the Klonopin, to
taper me off of [methadone].â It is true that Chess also
sought a prescription for methadone after he was transferred
CHESS V. DOVEY 29
to the general prison population. Theoretically, then, the
policy could have affected the responses to his subsequent
requests for methadone. But in actuality, Chess presented no
evidence that it did.
On the other side, defendants did not invoke the narcotics
policy to defend their care. In her opening argument,
defendantsâ counsel stressed the irrelevance of the narcotics
policy, informing the jury that they would âhear a lot of
testimony from all the defendants that the âno narcoticsâ
policy at High Desert really is irrelevant because all the
evidence showed that [Chess] did not require a medication of
that strength for his complaints of pain.â Indeed, the only
defendant who testified that he relied on the policy in treating
Chess was Dr. Dial. But Dr. Dial saw Chess only once at the
beginning of Chessâs stay in the CTC, and the policy did not
prevent Dr. Dial from giving Chess tapering-off doses of
methadone. Six of the eight defendants were not asked about
the policy and did not independently mention it in the course
of defending their treatment decisions. Except for Dr. Dial,
only Ms. Miller, who treated Chess both during and after his
initial stay in the CTC, addressed the policy as it related to
Chessâs treatment. She specifically denied that she declined
to prescribe the methadone because of the narcotics policy.
She decided not to prescribe it âbecause [she] didnât think it
was best for [Chess].â
On these facts, there is no reason to think that security
concerns, or the narcotics policy born of those concerns, had
anything to do with defendantsâ decision to withhold
methadone while Chess was at HDSP. Therefore, it was error
to issue the deference instruction.
30 CHESS V. DOVEY
B. The Wilson Dicta
In authorizing the use of the deference instruction only in
exceptional medical care cases, we reject defendantsâ
argument that language in the Supreme Courtâs opinion in
Wilson v. Seiter, 501 U.S. 294 (1991), compels us to extend
the Norwood rule to all medical care cases. The Wilson Court
was asked to decide whether a prisoner challenging his
conditions of confinement had to prove that the defendants
had a culpable state of mind, and if so, what that state of mind
had to be. Id. at 296. The Court held that there was a
subjective standard, and that it was the same standard the
Court already applied to medical care cases. Id. at 303.
Defendants point to the following language from Wilson
in support of their claim that medical care claims are a subset
of conditions of confinement claims and that the two must be
treated identically in jury instructions: â[T]he medical care a
prisoner receives is just as much a âconditionâ of his
confinement as the food he is fed, the clothes he is issued, the
temperature he is subjected to in his cell, and the protection
he is afforded against other inmates.â Id. The Court also said
in a footnote, âIt seems to us, however, that if an individual
prisoner is deprived of needed medical treatment, that is a
condition of his confinement, whether or not the deprivation
is inflicted upon everyone else.â Id. at 299 n.1.
Both sentences are dicta in the service of a different point
than the one defendants seek to make. The first sentence was
the Courtâs response to Wilsonâs argument that he need not
make a showing as to the defendantsâ state of mind, and that
the jury should decide whether the defendantsâ conduct was
wanton solely by evaluating the effect of the conditions on
Wilson. The Court rejected this argument because it had
CHESS V. DOVEY 31
already decided in Whitley that wantonness must be evaluated
from the defendantâs point of view. It was â[f]rom that
standpointâ that the court saw âno significant distinction
between claims alleging inadequate medical care and those
alleging inadequate âconditions of confinementâ; both require
prison officials to make decisions under constraints. Id. at
303.
The second sentence was addressed to the concurring
justices, who argued that there was a legally relevant
distinction to be drawn between âspecific acts or omissions
directed at individual prisonersâ (which warranted a
subjective inquiry) and systematic âconditions of
confinementâ that affected all prisoners (which did not).
Wilson, 501 U.S. at 309 (White, J., concurring). The majority
used the example of medical care to make the point that
defendantsâ conduct, whether directed at one person or many
people, should be evaluated against the same standard.
In both sentences, the Court in Wilson was drawing an
analogy between medical care cases and conditions of
confinement cases to explain why they should both have a
subjective element and why the standard for conditions cases
should be the same as that applied to medical care claims,
rather than that applied to excessive force claims. As the
Court wrote, âWhether one characterizes the treatment
received by [the prisoner] as inhumane conditions of
confinement, failure to attend to his medical needs, or a
combination of both, it is appropriate to apply the âdeliberate
indifferenceâ standard articulated in Estelle.â Id. at 303
(majority opinion) (internal quotation marks omitted); see
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (âWilson extended
the deliberate indifference standard applied to Eighth
32 CHESS V. DOVEY
Amendment claims involving medical care to claims about
conditions of confinement.â).
Defendantsâ reading of the Wilson dicta proves too much.
Prisons are total institutions in which prison personnel control
all aspects of life. Everything an inmate experiences is, at a
general level of abstraction, a condition of his confinement.
This includes his access to the yard, the medical care he
receives, and the force used to subdue him. Cf. Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (The Eighth Amendment
âalso imposes duties on these [prison] officials, who must
provide humane conditions of confinement; prison officials
must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must âtake reasonable measures
to guarantee the safety of the inmates.ââ (quoting Hudson v.
Palmer, 468 U.S. 517, 526â27 (1984))). But we cannot treat
claims relating to each of these conditions as if they are all
indistinguishable conditions of confinement claims. The
Supreme Court has told us as much: claims related to some
facets of prison life, like the use of force, are subject to a
different standard than others. That is the point of Whitley
and Wilson, and it is a point we recently reconfirmed in
Harrington v. Scribner, No. 09-16951, 2015 WL 2106387 at
*5, *8 n.1 (9th Cir. May 7, 2015), in which we rejected the
use of the Norwood instruction in a case brought by a
prisoner alleging racial discrimination in violation of the
Fourteenth Amendment, over an objection that such alleged
discrimination constituted a condition of confinement.
C. Harmless Error
Although we conclude that the jury instruction was error,
we do not reverse the judgment because defendants have
carried their burden of showing that âit is more probable than
CHESS V. DOVEY 33
not that the jury would have reached the same verdict had it
been properly instructed.â Clem, 566 F.3d at 1182 (internal
citations and quotation marks omitted).
For the reason the instruction was erroneous, it was also
harmless. As we explained above, the narcotics policy at
HDSP did not catagorically prevent Chess from receiving
methadone. Chess was eligible to receive methadone while
he was in the CTC, where he was initially placed. If Chessâs
doctors thought he needed methadone at that time, they could
have given it to him. If they thought he needed it after he
joined the general population, they could have transferred
him back to the CTC to receive it. We know the policy did
not drive defendantsâ decision to deny him methadone
because when they thought he needed narcotics, they gave
them to him. Indeed, they prescribed him morphine at least
twice.
All the defendants except Dr. Dial testified that they did
not give Chess methadone because he did not need it. Dr.
Dial said that Chess did not need it, and that it was dangerous.
He also stated in a one-word answer that the prison policy
forbade it outside the CTC. But the policy was irrelevant to
Dr. Dialâs treatment, for he treated Chess only in the CTC.
Defendants consistently testified that methadone was not
medically indicated for Chessâs conditions and that none of
the non-narcotic painkillers they prescribed him were harmful
to his liver. Chess offered only his own non-expert opinion
to counter defendantsâ medical opinions.
Defendants saw Chess frequently, ordered several
diagnostic tests, repeatedly adjusted his medications,
proposed surgical interventions, and were otherwise
conscientious in their caregiving. Chess resisted them at
34 CHESS V. DOVEY
almost every turn, refusing to take the medication they
prescribed him and delaying treatments that might have
helped him. We are confident that the jury would have found
for defendants even if it did not receive the deference
instruction.
Conclusion
We hold that the magistrate judge erred in this case in
instructing the jury to defer 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 instruction is inappropriate in medical care
cases brought by prisoners under § 1983, unless a partyâs
presentation of the case draws a plausible connection between
a security-based policy or practice and the challenged medical
care decision. Neither party drew such a connection in this
case. However, because this error was harmless, we affirm.
AFFIRMED.
Case Information
- Court
- 9th Cir.
- Decision Date
- June 25, 2015
- Status
- Precedential