F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

F L E E T C. H A M B Y , Plaintiff-Appellant,

v

.

M.D. S T E V E

N H A M M O N D , Chief Medical Officer, W a shing ton Department of Corrections, in his individual and official capacities; M.D. S A R

A S M I T H , F o rmer F acility Medical Director, Stafford Creek Corrections Center, in her individual capacity ; B E R

N A R D W A R N E R , Secretary , W ashing ton Department of Corrections, in his individual and official capacities,

Defendants-Appellees. N o. 15-35283

D.C. No. 3:14-cv-05065- RB L

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Ronald B . L eig hton, District J udg e, Presiding

Arg ued and Submitted F ebruary 2, 2016—Seattle, W ashing ton

F iled May

2, 2016H A M B Y V

. H A M M O N D

2

B e fore: Alex Koz inski, Diarmuid F . O’Scannlain,

and Ronald M. Gould, Circuit J udg es.

O pinion by

J udg e O’Scannlain; Partial Concurrence and Partial Dissent by J udg e Gould

SUMMARY *

Civil Rights

The panel affirmed the district c ourt’s summary judg ment in favor of prison officials in an action b r o u ght by a prison inmate p ur suant to 42 U.S.C. § 1983 alleg ing that officials

w e re deliberately indifferent to his serious medical need s when they

refused to g rant his request for hernia surg ery

.

Plaintiff received surg ery for h is umbilical hernia after the district court g ranted his motion for a preliminary injunction and ordered prison officials to refer him to a surg e on for evaluation and possible surg ical treatment. Af t e r r eceiving
surg ery , plaintiff soug ht damag es for the pai n h e alleg edly suffered because of the officials’ refusal to authoriz e surg ery prior to litig ation. The panel h e l d t hat the officials were entitled to q

ualified immunity because in lig ht of ex isting preced e n t a n d the specific facts of this case, it was at least debatable that they complied with the Eig hth Am e n d ment. The panel determined that to the ex tent that t h e o f ficials play ed a ny role in the d e c ision to deny surg ery , the record made cl e ar t h a t they did so based on leg itimate medical

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.H A M B Y V

. H A M M O N D 3

opinion s that have often been held reasonable under the Eig hth Amendment.

T h e panel held that the district court properly d en i e d injunctive relief relating to plaintiff’s potential ing ui nal hernia. The panel determined that p laintiff h ad not p ointed to evidence which sug g ested that defendants’ decision to forg o surg ery for the potential ing uinal hernia w a s medically unacceptable under the circumstances and made in conscious disreg ard of an ex cessive risk to plaintiff’s health.

Concurring in part and dissenting in part, J udg e Gou ld

c oncurred only w ith the majority opinion’s r esult reg arding the d enial of injunctive relief p er taining to plaintiff’s potential ing uinal he r n i a , and dissented from the r est of the majority opinion. J udg e G ould stated that there was a g enuine issue of material fact o n wh e t h er the course o f
t reatment the d octors chose in treating plaintiff’s umbilical hernia was medically

unacceptable under the circumstances, and whether they chose this c o u rse in conscious disreg a rd o f

an ex cessive risk to plaintiff’s health.

COUNSEL

Hank B a lson, Public I nterest L aw Group, PL L C, Sea t t le, W a shing ton argu e d the cause a n d filed the briefs for the plaintiff-appellant.

Timothy J

. F eulner, Assistant Attorney General for the State of W ashing ton, Oly

mpia, W a shing ton, arg ued the cause a nd filed the brief for the defendants-appellees. W ith him on the brief was Robert W

. F erg uson, Attorney General for the State of W ashing ton, Oly

mpia, W a shing ton.H A M B Y V

. H A M M O N D

4

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decid e w h e t her state p r ison officials can be made to pa y d a m ag es to a prisoner who claims that they violated his Eig hth Amendm e nt rig h ts when they refused to g rant his request for hernia surg ery

.

I

F leet C. H amby is an inmate a t t h e S t a f ford Creek Corrections Center in Aberdeen, W ashing ton. I n April 2012, Hamby fell off of a ladder while working his prison job as an electrician’s a ssistan t

. A prison medical professional diag nosed him as having an u mbilical hernia, meaning that a part of his intestine or abdominal fat had pushe d t h roug h a weak spot in his abdominal wall, causing a bulg e in h is belly

. H a m b y ’s umbilical hernia was described as “small” a nd “easily reducible,” which means that Ha m b y could push the hernia back into his abdomen by apply ing manual p ressure o r by ly ing down. H a m b y was counseled on how to push the hernia back in if it popped out, a nd was also g iven a rib belt desig ned to keep the hernia in.

Abo u t t wo weeks later, Hamby saw another prison medical professional who noted that Hamby was in pain a nd had some abdominal tenderness and swelling

, but could walk around without diffic u l t y

. H amby was prescribed medication—which he was unable to take due t o his other medical c onditions—and was advised to continue using the rib belt for support.H A M B Y V

. H A M M O N D 5

B y the end of 2012, Hamby w as seen at least ten times b y

a handful of prison medical personnel. Hamby reported that he ex p erienced sharp pains while sleeping

, u s i ng the bathroom, and when he tried to sit for long periods. I n J u ne of that y e ar, Hamby formally requested surg ical repair for his hernia. B ut on J uly 19, Hamby rated his pain a thre e o u t o f ten, and when he renewed his request for surg ery in Aug ust his reque s t w a s denied, with prison medical officials telling him that his “condition [ would] c o ntinue to be monitored as needed b y Health Services.” Hamby was ex amined ag ain on November 16, and his hernia was confirmed to be still “easily reducible.” Hamby continued u sing the h erni a b elt in addition to a variety

of prostate medications.

I n March 2013, Hamby was seen by a doctor a t a different prison. This doctor reported that H amby was able to “make it to chow h all and back,” a nd that he could use the bathroom. Hamby a dvised the doct o r that his umbilical hernia “interfered w ith [ his] sleep,” made “sitti n g down

. . . difficult,” and g enerated “random pain.” This doctor advised that surg ery w as not medically necessary

at that time.

I n late Aug ust 2013, Hamby ’s attorney sent a letter to Dr. G. Steven Hamm o n d

, the Chief Medical Officer for the W a shing ton State Department of Corrections; Dr. Sara S. Smith, the F acility Medical Dire c t o r at the Stafford Creek Corrections Center; and B e rnard W arner, the Secretary of the W a shing ton Department of Corre ctions (“prison officials”),

a s king them to reconsider Hamby ’s need for surg ical
treatment. Shor t l y thereafter, p rison medical personnel presented Hamby ’s case to the prison’s Care Review Committee ( “CRC”), a gr o u p of medical professionals that decides whether proposed health care treatments a re medically necessary under the prison’s Offen d e r HealthH A M B Y V

. H A M M O N D

6

Plan. 1 Drs. Hammond a

nd Smith were voting members, with Dr. Ham m o n d also serving as committee c hair. The CRC considered whether to authoriz e a surg ical consultation, a nd
po s s i b l e surg ical repair, for H amby ’s u mbilical hernia. The phy sician’s a ssistant who presented the request for Hamby ’s
surg ery described Hamby ’s h ernia as “easily reducibl e ” a n d noted that a lthoug h Hamby was in pain, he had been g oing to meals and his activities of daily livi n g were n ot impaired. 2 The CRC denied the request, deeming surg ery not medically
necessary at that time, a n d r ecommended continu e d monitoring of Hamby ’s condition.

Hamby w as subsequently ex amined by a phy sician’s assistant who had treated him several times in the past. The phy sician’s assistant noted that Hamby w as attending classes and that his “activities of d aily living were unaffected,” a nd describ e d h is h ernia a s “minimal,” and recommended

m o n itoring

. Hamby was later seen by a Department of Corrections urolog ist, who likewise opined that surg ery was not medically necessary because Hamb y “ did n ot have continual pain and was still performing his A D L s without incident.”

1 T h e Of f en d er Health P lan

d ef in es “ m ed i cally

n ecessary

care” as care th at m eets o n e o f sev eral criteria, in clu d in g “ [r]ed u c[in g ] in tractab le p ain ”

o r “ [p ]rev en t[in g ] sig n if

ican t d eterio ratio n o f [activ ities o f d aily liv in g ].”

2 “ A ctiv ities o f d aily liv in g ” (“ A DL s”) are “ activ ities related to p erso n al

care an d in clu d e b ath in g o r sh o w erin g , d ressin g , g ettin g in o r o u t o f bed

o r a ch air, u sin g t h e to ilet, eatin g , an d w alk in g o r assisted m o b ility

su f f icien t to acco m

plish th ese activ ities.”H A M B Y V

. H A M M O N D 7

A

Hamby filed this lawsuit under 4 2 U.S.C. § 1983 i n J anuary 2014, ag ainst Dr. Hammond, Dr. Smith, a nd Secretary W arner. Hamby sued e ach in his personal capacity

, and h e sued Dr. Hammond and Secretary Warne r i n t h eir off i c i a l c apacities as well. He claimed that the prison officials ex hibited deliberate indifference to his serious medical needs, thereby violating his Eig hth Amendment rig ht
to be free f

r o m cr u el and unusual punishment. As o f May 2014, when he moved for a preliminary injunction, Hamby rated the pain from his umbilical hernia “as a 5 on a scale o f 1–10.” I n Aug ust 2 014, the d istrict court g r anted Hamby ’s motion for a preliminary i njunction, ordering the prison officials to refer him to a surg eo n f or evaluation and to authoriz e surg ical treatmen t i f the surg eon so advised. Hamby received his hoped-for sur g ery , and his umbilical hernia was repaired on October 13, 2014.

B

After receivin g s u r g ery on his umbilical h ernia, Hamby continued to press his case, seeking damag es for the pain he alleg edly suffered because of the prison officials’ refusal to authoriz e surg ery p r ior to litig a tion. On cross-motions for
summary judg ment, the district court ruled fo r the prison officials, holding that they had not in fact been del i b e r a t ely indifferent to Hamby ’s serious medical needs—and so they had not violated Hamby ’ s Eig hth Amend m e n t rig h ts, a fter all—but that even if they had, qualified i m m u n i t y would shield them from having to pay damag es.H A M B Y V

. H A M M O N D

8

C

I n addition to the ordeal surrounding his umbilical hernia, Hamby complains of ail m e n t s trig g e r ed by a p a rticularly harsh sneez e that left h im reeling in October 2012. This

sneez e may or may n ot have caused an ing uinal hernia—which occurs in the g r oin ar e a , w hen fatty o r intestinal tissue pushes throug h a weak spot in the abdominal wall—but Hamby was n ever diag nosed as having an ing uinal hernia. No n e theless, in response, prison medical personnel
g ave him a jockstrap to reduce the pain.

I n May 2014, Hamby declared that “ [ t] h e pain f rom the ing uinal hernia had subsided for several months,” althoug h it had “recently reappeared” and was “ intermittent, rang ing between 0 and 5.” I n Sept e m b er 2 014—at the time Hamby moved for summary judg ment—he declar e d that “ the p ain related to [ his] possible ing uinal hernia [ had] subsided,” a nd

was “currently a t a level he can tolerate.” Still, Hamby requested a p ermanent injunction requiring the prison officials “to diag nose a

n d treat his pos s i b l e ing uinal hernia should the pain associated with that condition once ag ain become intolerable.”

The district court denied H am b y ’s request for a perm a n ent injunction a

nd g ranted summary judg ment to the prison officials, ruling that t h e i r conduct in response to Hamby ’ s po s s i ble ing uinal hernia d id n ot violate Hamby ’s rig hts u nder the Eig hth Amendment. Hamby timely appealed the district court’s decision.H A M B Y V

. H A M M O N D 9

I I

W e review de novo t h e district court’s ruling o n crossmotions f or summary judg ment. Trunk v. City of San Diego
, 629 F. 3 d 1099, 1105 (9th Cir. 2011). W e must view the evidence in the lig ht most favorable to the non-moving party , and then ask whether there is any “g enuine dispute as to any material fact” under the g overning substantive law. F ed. R. Civ. P. 56(a). “As to materiality

, ” the Supreme C o u rt has held that “ [ o ] n l y disputes over facts that mig ht affect the
outcome o f the suit under the go v erning law will properly preclude the entry of summary judg ment.” An de r s o n v

. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

I I I

Hamby wants to hold the prison officials personally liable in damag es because they refused to refer his umbilical hernia for surg ery until they were ordered to do so by a preliminary injunction entered earlier in this liti g ation. To prevail, Hamby must defeat t h e o f ficials’ defense of qualified immunity

. And to do that, he must show, “first, [ that he] suffered a deprivation of a constitutional or statutory rig ht; and second [ that such] rig h t w a s clearly established at the time of the alleg ed misconduct.” Taylor v. Barkes

, 135 S. Ct. 2042
, 2 0 4 4 (2015) ( per curiam) (internal quotation marks omitted )

. We may d ecide for o urselves which step of the analy sis to und e r t a k e f

irst. Pearson v. Callahan

, 555 U.S. 223, 236 (20 09). F ailing a t either one will neg ate Hamby ’s elig ibility to recover damag e s.H A M B Y V

. H A M M O N D

10

A

W e take up the “clearly es t ab l i shed” p rong of the qualified-immunity anal y s i s first. The Supreme Court has

r e peatedly emphasiz ed that, to determine whether a g i v e n rig ht was “clearly esta b l i s h ed” a t the relevant time, the key question is whether the d e f endants should h ave known that their specific actions w ere unconstitutional g iven the specific facts under review. W e flesh out this standard at some leng th, in no small part b e c ause o ur circuit has been repeate dly chastised for conducting the clearly e stablished inquiry at too hig h a level of g e nerality

. See, e.g. , City & County of San Francisco v. Sheehan

, 135 S. Ct. 17 6 5, 1775–76 (2015) (“ W e h ave repeatedly told courts—and the Ninth Circuit in particular—not to define clearly e stablished la w a t a h ig h level of g enerality .” (quoting Ashcroft v. a lKidd

, 131 S. Ct. 2074, 2084 (2011))).

1

“To be clearly established, a rig ht must be s u f ficiently clear that e very reasonable official would have u nderstood that what he is doing violates that rig ht.” Taylor , 135 S. Ct.
at 2044 ( emphasis added) (quoting Reichle v. H o w a rds

, 132 S. Ct. 2088, 2093 (2012)). Althoug h a p laintiff need not find “a c a s e d irectly on point,

. . . ex isting precedent must h a v e p laced the

. . . constitutional question bey o nd debate

. ” al-Kidd

, 131 S. Ct. at 2 0 83. That is, ex isting precedent must have “ placed bey ond debate the unconstitutionality of” the officials’ actions, as those actions u n folded in the specific
contex t of the case at hand. Taylor

, 135 S. Ct. a t 2 0 4 4. Hen c e , a plaintiff must p rove that “precedent on the books”
at the time the officials acted “ w ould have made clear toH A M B Y V

. H A M M O N D 11

[ them] that [ their a c t i o n s ] violated the Constitution.” Id. at 2045.

As t h e Supreme Court ag ain stressed recently

, “[ t] he dispositive question is ‘wheth er t h e violative nature of [ the defendants’] particular c o n duct is clearly established.’” Mullenix v. Luna
, 136 S. C t

. 305, 308 (2015) (per curiam) (quoting a l-Kidd

, 1 31 S. Ct

. a t 2 084). Moreover, “ [ t] his inquiry ‘must be undertaken in lig h t of the specific context o f the case, not a s a broad g e n eral p roposition.’” Id. (emphasis added) (quoting Brosseau v. Haugen
, 5 4 3 U.S. 1 94, 198 (2004) (per curiam)).

I n a nutshell, according to the Supreme Court, state officials are entitle d to qualified immunity so long as “none of our precedents ‘squarely g overns’ the facts here,” meaning that “we cannot say that only someone ‘plainly incompetent’

or who ‘knowing ly v iolate[ s] the law’ would have

. . . acted

as [ the officials] did.” Id. at 310 (quoting Malley v. Briggs
, 475 U.S. 335, 341 (1986)). 3

3 In recen t y ears, t h e Su p rem e Co u rt h as rep eated ly stated t h at th e

“ clearly estab l ish ed ” in q u iry dem an d s th at co u rts train th eir atten tio n on th e p articu lar f

acts u n d er rev i ew

. S

ee, e.g

. , Sh eeh a n , 1 3 5 S. Ct. at 1 7 7 7 (h o ld i n g th at “ qu alif

ied im m u n ity n ecessarily a p p l ies h ere becau se

. . . co m peten t o f f icers co u ld h av e b e l iev ed ” t h eir actio n s w ere co n stitu

tio n al); id

. at 17 7 8 (“ Co n sid erin g th e s p ecif ic situ atio n co n f

ro n tin g [th e o f

f icers], th ey h ad su f

f icien t reaso n t o b eliev e th at th eir co n d u ct w as j u s t i fi ed .”); W o o d v. Mo ss , 1 3 4 S. Ct. 2 0 5 6
, 2 0 6 7 (2 0 1 4) (“ [W ]e ad d ress th e k ey q u estio n : Sh o u l d it h av e b een c l ear to th e ag en t s th at th e s ecu rity
p erim eter th ey

estab lish ed v io lated th e First A m en d m en t? ”).H A M B Y V

. H A M M O N D

12

2

B e fore apply ing the above principles to Hamby ’s case, we

mu s t e mphasiz e that the fact-specific, hig hly contex tualiz ed
nature of the inquiry do e s not depend on which particular constitutional rig ht a g iven plaintiff claims the officials have violated.

I n particular, Hamby

—drawing o n some recent statements from our court—sug g ests tha t the qualifiedim munity inquiry in Eig hth Amendment cases differs from the inquiry in other t y

p es of c ases, such as those involving

ex c e ssive force, where a

nalog ies to prior cas e s supposedly play a strong er role.

That proposition is demonstrably untrue. Not only h as the Supreme Court never sug g ested an y such distinction, but several c ases affirmatively repudiate it. I ndeed, T a yl o r v

. Barkes was an Eig h th Amendment case—just like the present one—in which an inmate’s estate a lleg ed that prison officials were deliberately

indifferent to the inmate’s serious medical needs. Barkes v. First Corr. Med

. , I n c

. , 766 F

. 3d 307, 314 (3d Cir. 2014), rev’d sub nom. Taylor v. Barkes

, 135 S. Ct. 2042 (2015) (per curiam). Specifically

, the estate arg ued that the p r ison officials violated the Eig hth Amendment by failing
to implement adequate suicide-prevention protocols. Taylor

, 135 S. Ct. a t 2044. Reversing the Third Circuit, the Supreme Court g ranted the officials qualified immunity

, citing F ourth Amendment cases a

nd following the ex ac t s a m e analy sis applicable in that contex t. That is, t h e Court survey ed “the weig ht o f

. . . a

uthority [ ex isting ] at the time of [ the inmate’s] d e ath,” and g ranted qualified immunity because no ca s e s “placed b e y ond d ebate the unconstitutionality of the I nstitu t i o n’s procedures, as implemented by the medicalH A M B Y V

. H A M M O N D 13

contractor,” as no prior cases clearly “specif[ ied] what procedures would suffice” under the Eig hth Amendment. Id.
at 2044–45. Precisely because analog ies to prior cases failed,
t h e Court concluded that “no precedent on the book s i n November 2004 would h ave ma d e clear to p e titioners that they were overseeing a sy stem that violated the Constitution. B ecause, at the very least, petitioners w ere not contravening clearly e stablished law, they are entitled t o q ualified immunity .” Id. at 2045.

L ikewise, W

ood v. M o s s and Reichle v. Howards were F irst Amendment cases rather than F ourth Amendment ones. W ood

, 134 S. Ct. at 2061; Reichl e , 1 3 2 S. Ct. at 2092–93. And y e t the Supreme Cour t ’s analy sis proceeded along the

same lines. These ca s es make clear that the particular rig ht
at issue in no way chang es the f act-specific, hig hly
contex tualiz ed nature of the “ clearly established” a naly s i s. See W o od

, 134 S. Ct. at 2067; Reichle , 132 S. Ct. at 2096 & n.6.

B

Given t h e foreg oing doctrine, the q uestion in this case must be: viewing the evidence in the lig ht most favorable to Ha m b y , w as it “bey ond debate,” at the time the prison officials acted, that their conduct violated the Constitution? I f t he answer is n o —if the o fficials’ actions d id not clear l y vi olate Hamby ’s rig hts under the Eig hth Amendment—then the officials are entitled to qualified immunity

, and summary judg ment must be entered in their favor.H A M B Y V

. H A M M O N D

14

1

Hamby ’ s theory of t h e ca se is that the non-surg ical
treatment prescribed by the prison officials fell short of what the E ig hth Amendment requires. On t he merits, Eig hth Amendment d o ctrine makes clear that “[ a] difference o f opinion b etween a phy sician and the p ri s o n er—or b etween medical p r ofessionals—concerning w hat medical care is appropria t e does not amount to deliberate indifference.” Snow v. McDaniel

, 6 81 F .3d 978, 987 (9th Cir. 2012), overruled in part on other gro u n ds b y Peralta v. Dillard

, 744 F .3d 1076, 1083 (9th Cir. 2 014) (en banc). Rather, “[ t] o show deliberate indifference, the plaintiff ‘must show that the

course of treatment the doctors chose was medically unacceptable under the circ umstances’ and that the defendants ‘chose this course in conscious d i sreg ard of an

ex c e ssive risk to the plaintiff’s h ealth.’” Id. at 988 (quoting Jackson v. McIntosh

, 90 F .3d 330, 332 (9th Cir. 1996)). “Deliberate indifference is a hig h leg al standard. A showing of medical malpractice o r neg lig ence is insuffi c i ent to establish a constitutional deprivation under the Eighth Amendment.” Toguchi v. Chung

, 391 F .3d 1051, 1 060 (9th Cir. 2004).

F or p urposes of determining qualified immunity

, therefore, we must ask the narrower question: viewing the evidence most favorably to Hamby

, and g iven ex isting case law a t tha t t i m e , w as it “bey ond debate” that the prison officials pursued a medically unreasonable course o f
treatment b y declining to re f e r Hamby for a surg ical evaluation? Cf. Mullenix

, 1 3 6 S

. Ct. at 309 (holding that where the me r its question asks if the officials acted

re a s onably

, the qualified-immunity question “is whether

ex isting p r e c e dent placed the conclusion that [ the officials]H A M B Y V

. H A M M O N D 15

acted unreasonably

in these circumstances ‘bey ond debate’” (quoting al-Kidd , 131 S. Ct. at 2083)).

2

Here, the answer is no, even if w e a ssume that each of the officials Hamby sue d was aware of his chronic pain. 4 See Farmer v. Brennan
, 511 U .S. 825, 837–38 (1994). That is, in lig ht of ex isting precedent and the specific facts of Hamby ’s
case, it is at least debatable that the officia l s c omplied with th e E i g hth Amendment, because—to the ex tent they play ed

a ny role in the decision to d eny Hamby surg ery for h i s umbilical hernia—the record makes c lear that they did so based on leg itimate medical o pini o n s that have often been held reasonable under the Eig hth Amendment.

a

Dr. Hammond testified that in his med i c a l opinion, hernias “ty

pically ” merit surg ical treatment, but “[ s]o m e t i mes

a condition c an be monitored c linica l l y without treatment.” “Medical evidence and ex p e r ience,” he ex plained, “ show that

some r e ducible hernia s c an be clinically monitored a nd
surg ical repair is not r equired. Under those circumstances, monitoring or ‘watchful waiting ’ is medically appropriate. W a tchful waiting is

. . . medically acceptable for c linical
manag ement of b oth ing uinal and umbilical hernias in many cases.” Such monitori n g c an be done “more or less intensively ,” and will often involve behavior chang es on the part of the pati e n t and r epeated ex aminations by medical

4 W e n o te th at Secretary W arn er can n o t b e h eld v icario u sly liab le u n der § 1 9 8 3 f o r an y v i o latio n s co m

m itted b y p riso n m ed ical p erso n n el. E.g

. , Hu n t v. Den ta l Dep ’t , 8 6 5 F.2 d 1 9 8 , 2 00 (9 th Cir. 1 9 89 ).H A M B Y V

. H A M M O N D

16

personnel. According ly

, Dr. Hammond testified, prison policy provides that surg ery f or reducible—otherwise known

as non- i ncarcerated—hernias is deemed to be only “potentially medically necessary ,” and surg e ry in such cases must be specially

approved on a case-by

-case basis.

Dr. H ammond decla r e d that the CRC turned down Hamby ’ s request for surg ery because “there was no evidence that his hernia w a s incarcerated and [ because] he was manag ing h i s a c tivities of daily living .” I n addition, Dr. Hammond declare d t h a t at the time this litig ation beg an, Hamby h a d “ not presented sy mptoms o f intractable pain,” and that, in Dr. H amm o n d ’s judg ment, forg oing surg ery at that time would “not present Mr. Hamby with risk of serious medical harm. W hile h i s umbilical hernia may cause him discomfort or pain from time-to-time,” Dr. Hammond concluded, it was capable of being “ manag ed without surg ical intervention.”

b

Similarly

, Dr. Smith testified that, in her o p i nion, Hamby ’ s requested surg ical evaluation was “not medi c ally
necessary ” b ecause “his hernia was not incarcerated a nd did not impair his daily

activities.”

I n addition, a s r eco u n t e d a bove, Hamby was not merely being moni tored; he was treated with a hernia b e lt and a reg imen o f medications, and was taug ht how to alleviate p ain throug h behavioral chang es.H A M B Y V

. H A M M O N D 17

c

Hamby ’ s e x p ert, Dr. Br adley Roter, ag reed with Drs. Hammond and Smith that “watchful waiting ma y b e a

r easonable alternative to surg ery for patients who pr es e n t with umbilical hernias that are not incarcerated (i.e., reducible) and t h a t ar e not causing pain or other sig nificant
sy mptoms.” B ut “[ m] y personal practice,” he declared, “is to recommend surg ical evaluation to almost all of my patients who present w i t h umbilical hernias.” “I n my opinion,” he
went on, “the benefits of surg ical repair out w e i g h the relatively small risks a ssociated with the pro c edure.” I n Hamby ’ s case, Dr. Roter concluded, “ [ t] he standard of c are” would be “to refer [ him] for a surg ical consultation.”

3

Crucially for purposes of d etermining q u a l i f i e d i m munity

, an ex amination of ex isting case law de monstrates that the
non-surg ic a l t reatment the defendants selected is not indisputably unconstitutional in c ircumstances like these. I n fact, there are many cases, both reported an d u n reported, holding that prison medical p ersonnel did n o t violate the Eig hth Amendment even thoug h they denied s u r g ical
treatment to an inmate with a reducible hernia comparable to Hamby ’ s. See, e.g. , J

o h nson v. Doughty

, 433 F .3d 1001, 1003–04, 1 013–14 (7th Cir. 2006) (holding prison medical personnel did not a c t with deliberate indifference when they opted for non

- s u rg ical treatment—a hernia belt, Ty lenol, Metamucil, and monitoring —in response to prisoner’s reducible ing uinal h e r n ia); Brown v

. Beard

, 445 F

. App’x 453, 455–56 (3rd Cir. 2 0 1 1) (per curiam) (holding prison

me d i cal personnel did not violate Eig h th Amendment when they refused to authoriz e s u r g ery f or prisoner’s reducibleH A M B Y V

. H A M M O N D

18

hernia, instead pres c r ibing pain medication and abdominal belt, plus monitoring

, and despite a n o t h er doctor’s opinion that surg ery w as w arranted); W ebb v. Hamidullah

, 281 F

. App’x 1 59, 166–67 (4th Cir. 2008) (per curiam) (similar); And e r s o n v. B ales

, N o. 12-2244, 2013 W L 1278122, at *1 (7th Cir. Mar. 29, 2013) ( similar); Rossi v. Nev. De p ’ t of Corrections
, 3 90 F

. A pp’x 7 19, 7 20 ( 9th Cir. 2010) ( similar).

These cases—combined with a lack of overwhelming

co n t r ary authority

—are dispositive for purposes o f determining q

ua l i f ied immunity

, b ecause they demonstrate that ex isting precedent does not “ place[ ] bey ond debate the unconstitutionali t y o f

” the course of non-surg ical treatment pursued by the p rison officials i n H a m b y ’s case. Taylor

, 135 S. Ct. at 2044; see als o Sheehan

, 135 S. Ct. at 1778 (“[ T] o the ex tent that a ‘r o b u s t consensus of cases o f persuasive a

uthority ’ could itself clearly establish the federal rig ht respondent alleg es, no such con sensus ex ists here.” (quoting al-Kidd , 131 S. Ct. at 2084) (citation omitted)). At worst, the evidence in the record shows a diffe r ence o f medical opinion amounting to possible neg lig ence o n the part of Drs. Hammond and Smith. A s s u ch, even when the evidence is viewed in the lig ht most favorable to H amby

, “we
cannot say that only someone ‘plainly incom p etent’ o r w ho ‘knowing ly v i o l a t e[ s] the law’ would have

. . . acted as [ the officials here] did.” Mullenix

, 136 S. Ct. at 310 (quoting Malley

, 475 U.S. at 341). F or that reason alone, they did not violate a “clearly established ” rig ht, and so they must be entitled to qualified immunity

.

C

Hamby raises two basic objections to such analy sis. W e are not persuaded.H A M B Y V

. H A M M O N D 19

1

F irst, he insists that his “clearly e stablished” rig ht should be defined at a hig her level of g enerality

, namely

, as the rig ht

n ot to be treated “with deliberate indifference to a seri o u s medical need,” a constitutional rig ht “ that h as been c learly established for y ears.” L ikewise, he arg ues th a t a rig ht to specific treatment—in this case, hernia r epair surg ery —need not be clearly

established by

case law.

Hamby ’ s arg ument misunderstands the sort of clarity a plaintiff must d emonstrate in order to overcome a defense o f qualified immunity

. F o r starters, d efining the relevan t rig ht

as simply the r ig ht to be free from deliberate indifference “ is far too g e neral a proposition to c ont rol this case.” Sheehan

, 13 5 S. Ct. at 1775. T o proceed in that manner is to neg lect the dispositive q

uestion: whether these officials, on these facts, should have known that what t h e y d id violated the Eig hth Amendment. I n short, Hamby would h a v e u s repeat the same e rror the Supreme Court has time a nd ag ain felt compelled to correct.

Of course, it is true (as far as it g oes) that a plaintiff need
not find a case with identical fac t s i n o r der to survive a defense o f qualified immunity ; obviously

, one can imag ine a situation where the officials’ conduct is so eg reg ious that no

one wou l d defend it, even if there were no prior holding directly on point. See, e.g. , Hope v. Pelzer

, 5 36 U.S. 730, 741 (2002) (“[ A] g eneral constitutional rule already identified in the decisional l a w m a y apply with obvious clarity to the specific conduct in question, even thoug h the v e r y a ction in question h as [ not] previously been held un l awful.” (internal quotation marks omitted)). B u t it should be e qually obvious that the farther afield ex isting precedent lies from the caseH A M B Y V

. H A M M O N D

20

under review, the more likely it will be that the officials’ acts

w i l l f a ll within that vast z one of conduct that is p erha p s reg rettable but is at least arguably constitutional. So long a s

even that much can be said for the officials, they are entitled to qualified immunity

.

Such is the case h ere. Even when the facts are viewed
most favorably to Hamby

, th e y d emonstrate that the prison officials acted on a bona fide medical o pinion, and opted for

a course o f treatment h eld to be constitutional on numerous prior occasions. “Considering the s p e cific situation confronting ” them, “they had sufficient r eason to believe that
t h e i r co nduct was justified.” Sheehan

, 135 S. Ct. at 1778. That is enoug h to shield them from damag es liability

.

2

Second, Hamby c ites four district cou r t o pinions which, he claims, “denied qualified immunity to prison officials w ho

r e fused to provide surg ical treatment to patients with reducible hernias.” T hese citations d o not e s tablish that the prison officials violated any clearly established law.

Of course, “district c ourt d e cisions—unlike those from the courts of appeals—do not necessarily settle constitutional standards or prevent repeated c laims of qualified immunity

. ” Camreta v. Greene , 131 S. Ct. 2020, 2033 n.7 (2011). Even if district court decisions c ould c lea rly establish the law for
purposes of q u a l ified immunity

, the cases on which Hamby relies cannot do the work he asks of them.H A M B Y V

. H A M M O N D 21

a

One o f the cases Hamby cites d enied qualified immunity only after committing the same a n aly tical error that Ha m b y

wou l d h a v e us repeat. McCabe v. Gibbons

, No. 3:09-cv00244-L RH-W GC, 2013 W L 5 437645, a t *31 (D. Nev. Sept. 27, 2013) (holding

, without f urther analy sis, that “it was clearly established d

uring the relevant time frame that denial, delay of, or interference wi t h medical care of a prisoner constitutes an Eig hth Amendment violation if it am o unts to deliberate indifference to a serious medical need”).

b

The remaining cases are disting uishable on their facts. E.g.
, W oodroffe v. Oregon Dep’ t o f C orr. , No. CV 05-977- MO, 2008 WL 2234583, a t *6 (D. Or

. M a y 27, 2 008) (deny ing qualified immunity on motion for summary judg ment where prisoner put in sufficient evidence to create

a factual d ispute as to whether prison had “a de f a cto p olicy of n ever, or almost n ever, p a y ing for elective surg ery to repair

a hernia”); Delker v. Maass
, 843 F

. Supp. 1390, 1397–98 (D. Or. 1994) ( same); Tor r e z v. Richter

, N o. CV-03-770-HU, 2004 W L 1253374, at *9 (D. Or. J une 7, 2004) findings and recommendation adopted

, 2004 W L 2397201 (D. Or. Oct. 25, 2004) (deny

ing q ualifi e d immunity where evidence showed “the h ernia belt orig inally p rescribed was not working

, 2) [ prisoner] was in nearly constant and increasing pain

. . . , 3) the pain r a d i a t e d into his leg and caused him d ifficulty with walking and climbing stairs, 4) he was required to push the hernia back into place s e v e r a l t imes a day

, and 5) the hernia had g rown larg er over time”).H A M B Y V

. H A M M O N D

22

I n sum, even when the facts a re viewed most favorably to Hamby

, it is a t least debatabl e t hat the prison officials here complied with the E i ghth Amendment. They are therefore entitled to qualified immunity

. 5

I V

Hamby also claims that the district court erred in deny ing injunctive relief r elating to his potential ing uinal hernia. This claim fails.

I n his motion for summary judg ment , H a mby ex pressly stated that “t h e p a i n related to [ his] possible ing uinal hernia has subsided ” and “is currently a t a level h e can tolerate.” Hamby acknowledg es that he has received treatment for the ing uinal hernia. Hamby ’ s medi c a l e x pert, Dr. Roter,

ex p lained in g eneral terms that “[ s] ometimes ing uinal hernias

cause pain; sometimes they do not.” H a mby has pointed to

no evidence sug g esting that the prison o fficials’ deci s i o n to forg o surg ery at this time is “ ‘medically u n a c ceptable under the circumstances’ and that the [ officials] ‘chose this course in conscious disreg ard of an ex cessive risk to [ H a mby ’s] health.’” Snow
, 681 F .3d at 9 88 (quoting Jackson

, 90 F .3d at 332). At worst, we have here another difference of bona fide

5 H am b y also arg u es th at Secretary W arn er w as d elib erately in d if f eren t b ecau se h e “ ig n o r[ed ] s y stem ic d ef icien cies in [th e D ep artm en t of Co rrectio n s’ s] h ealth care ap p ro v al p ro cess.” T h e o n l y ev id en ce Ham b y cites are th ree law su its o t h er in m ates h ad f

i led in th e p ast, at least on e of

w h ich w as s u

b s e q u e n t l y d ism issed

, see Fra n cis v. Ha mmo n d

, N o

. C1 2- 6 0 2 3

- R B L

- J RC, 20 1 5 W L 1 6 5 0 3 0 9 (W .D. W ash

. A p r. 1 4
, 2 0 1 5 ). T h ese arg u m en ts are to tally in su b stan tial an d d ev o id o f all co n tex t. T h ey d o n o t

co m e clo se to sh ow in g th at Secretary W arn er o v ersaw o r im p lem en ted a sy stem th at in d isp u tab ly

f lo u ted th e Eig h th

A m en d m en t.H A M B Y V

. H A M M O N D 23

medical opinion. There are no material facts in dispute, and therefore the district court properly denied injunctive relief.

V

The judg ment of the district court is AF F IRMED.

GOUL D, Circuit J udg e , concurring in part and dissenting in part:

I concur only in the result reached by the majority in Part I V. I respec t fully dissent from the rest of the majority ’s opinion. W e have long recog niz ed: “I t is settled law that deliberate indifference to serious medical needs of prisoners

v iolates the Eig hth Amendment.” J a ckson v. McIntos h

, 9 0 F. 3 d 330, 3 32 (9th Cir. 1996) (citing Estelle v. Gamble

, 429 U .S. 9 7, 104 (1976)). And it has been clearly e stablished in this Circuit for decades that prison officials are deliberately indifferent when they

“deny

, d e lay

, or intentionally interfere with medical treatment.” Id. (quoting Hamilton v. Endell

, 981 F .2d 1062, 1066 (9th Cir. 1992)). This principle makes
g ood sense when we recog n iz e that a prisoner is totally at the
mercy of prison officials for medical care. I f the prison does
not act responsibly to correct a medical problem, the prisoner has n owhere else to g o

. A s the Second Circuit ex p lained persuasively in Brock v. W righ t , 3 1 5 F .3d 158, 163 (2d Cir. 2003): “W e will no more tolerate prison officials’ deliberate indifference to the chro nic pain o f an inmate than we would a sentence that required the inmate to submit to such pain.”

I d o not disag ree wi t h t h e majority that the concept o f deliberate indifference requires more than simple neg lig e nceH A M B Y V

. H A M M O N D

24

and a difference of medical o p inion. See, e.g. , Toguchi v

. Chung

, 391 F .3d 1051, 1057–61 ( 9th Cir. 2 004 )

. H o wever,

a difference of medical opinion does not preclude a finding o f deliberate indifference. See, e.g. , Snow v. McDan i e l

, 681 F .3d 9 78, 988 (9th Cir. 2012), overruled in p art o n other grounds by Peralta v. Dillard

, 744 F .3d 1076 (9th Cir. 2 014) (en banc). Here, F l e et Hamby reported pain f rom an umbilical hernia o v er the course of several y ears, saw medical staff more than a doz en times, and filed numerous “kites” a nd
g rievances i n a futile attempt to have his pain effectively addressed. B u t he c ould not g e t out of the starting g ate because the Care Review Committee determined—likely without r eviewing Ham b y ’s medical files, as this was the Committee’s g eneral policy 1 —that an umbilical hernia th at

was not incarcerated could be dealt with throug h “watchful waiting ” and did not require surg e ry

. This was des p i t e t he fact that Dr. Hammond admitted th e r e was a “g o od chance” that surg e ry would alleviate Hamby ’s pain. The Committee’s decision to deny the surg e ry may have comported with the prison sy stem’s internal p olicies and contributed to reducing the costs of medical care for prisoners. How e v er , i t is not a fo r e gone conclusion that prison officials’ a ctions here
pur s u ant to prison policies complied with the Eig hth Amendment. See Colwell v

. Bannister
, 763 F .3d 1060, 1063 (9th Cir. 2014) (“the blanket, c ateg orical denial of medically

1 Dr. Ham

m o n d testif

ied in h is d ep o sitio n th at th e Care R e v iew Co m m i ttee receiv es an Ex cel sp read sh eet b ef o re m eetin g , w

h ich in clu des in f o rm atio n ab o u

t each case (in clu d in g b irth d ate, in m ate n u m b er, an d “ a sy n o p sis o f t he case an d a statem en t o f th e p ro p o sed in terv en tio n s.”). W h en ask ed if th e Co m m i ttee is p ro v id ed w i th th e i n m a tes’ m ed i cal

reco rd s, h e rep lied

, “ No t —w ell, ty

p ically n o t. It’ s sim

p ly a sy n o p s i s, alth o u g h it’ s also p o ssib le w ith th e cu rren t sy stem to su b m it ph o to g rap h s

an d so m etim es th ere are p h o to co p ies o f th i n g s lik e d iag n o stic rep o rts.”H A M B Y V

. H A M M O N D 25

i n d icated surg ery solely on the b asis of an administrativ e policy . . . is the paradig m of deliberate indifference”).

I do not say that Hamby showed deliberate indiffer e nce

as a matter of law a

nd could r eceive summary relief himself. B ut his evidence was s u f f i cient to raise a g enuine issue o f material fact on whether “the course of treatment the d octors chose was medically unacceptable under the circumstances,” and whether they “chose this course in conscious disreg ard o f

an ex cessive risk” to H amby ’s health. Jackson

, 90 F .3d at 332. This c ase should have g one to a jury as the trier of fact, with the g uidance o f correct jury instructions on deliberate indifference. I t should not have been resolv e d b y s ummary judg ment of the district court. See Snow
, 681 F .3d at 98 7. Nor should that summary jud gment be affirmed by us. A nd

so I d i s s ent in the hope that a future court may correct the majority ’s error.