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

J O H N C O L W E L L , Plaintiff-Appellant

,

v

.

R O B E R T B A N N I S T E R and H O W

A R D S K O L N I K , Defendants-Appellees

. N o. 12-15844

D.C. No. 3:10-cv-00669- L RH-W GC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada L arry R. Hicks, District J udg e, Presiding

Arg ued and Submitted April 7, 2014—San F r ancisco, California

F iled Aug ust 14, 2014

B efore: B arry

G. Silverman, W illiam A. F letcher, and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e Silverman; Dissent by

J udg e B y b e eC O L W E L L V

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SUMMARY *

P risoner Civil Rights

The panel reversed the district court’s summary judg ment

a n d r e m a nded for trial in an action broug ht pursuant to 42 U.S.C. § 1983 by a N evada state prisoner who was d enied
cataract surg ery because of a Nevada Departm e n t o f Corrections policy under which cataract surg ery is refused if an inmate can manag e to function in prison with one ey e.

The panel held that blindness in one e y e c aused b y a catar a c t is a serious medical condition. The panel f urther held that the blanket, c ateg orical denial of medically indicated surg ery solely on the basis of an admin i s t rative policy that “one ey e is g ood e noug h f or prison inmates” is the paradig m of deliberate indifference.

Dissent i n g , J udg e B y

b e e stated that he would hold that the r espondents were not deliberately indifferent to plaintiff’s alleg ed serious medical needs because plaintiff did not meet the difficult leg al burden of showing a purposefu l ac t o r failure to respond to a prisoner’s pain or possible medical need and harm caused by the indifference.

* 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.C O L W E L L V

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COUNSEL

Mason B o ling (arg

u ed) and L a uren Murphy (arg ued), Ce r tified L aw Student Representatives, and D ustin E. B uehler, Supervising Attorney
, Uni v e rsity o f Arkansas F ederal Appellate L itig ation Project, F ay etteville, Arkansas; Michelle King and J o y N i ssen, Certified L aw Student Representatives, and Greg ory C. Sisk, Supervising Attorney
, Universit y o f St. Thomas School of L aw Appellate Clinic, Minneapolis, Minnesota, for Plaintiff-Appellant.

Catherine Cortez Masto, A ttorney General, and Clark G

. L eslie (arg

ued), Senior Deputy Attorney Gener a l

, O f fice o f the Nevad a Attorney General, Carson City

, N evada, for Defendants-Appellees.

OP INION

SI L VERMAN, Circuit J udg e :

Plaintiff J ohn Colwe l l, an inmate in the Nevada Department o f C o r r e ct i ons, is blind in one ey e due to a

c a t aract. I t is undisputed that his treating d octors recommended cataract sur ge r y and that the surg ery would
restore his vision. However, t he surg ery was denied b y N D O C supervisory medical p ersonnel because of the NDOC’s “one ey e policy ” – cataract surg ery is refused if an inmate can manag e to function in prison with one ey e.

W e hold today

, as numerous other courts considering the question have, that blindness in o ne ey e caused by a cataract is a serious medical c ondition. W e also hold that the blanket,
cate go r ical denial of medically indicated surg ery solely onC O L W E L L V

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N N I S T E R 4

the basis of an administrative policy t hat “one ey e is g ood
enoug h for p r ison inmates” is the paradig m o f deliberate indifference. W e reverse the g rant o f summary judg ment in favor of the prison officials and remand for trial.

BACK G ROUND

B e cause this case was resolved at summary judg ment, we pr e s e n t the f

acts in the lig ht most favorable to Colwell, the non-moving party

. See Snow v. McDaniel

, 681 F .3d 978, 982 (9th Cir. 2012), overruled in p art on o ther grounds by Peralta v. Dillard , 744 F .3d 1076 (9th Cir. 2014) (en banc).

Colwell is a 6 7 -y ear-old man serving multiple criminal sentences, including life w ithout the possibility of parole. He did not have ey e problems when he was incarcerated in 1991, but he subsequently developed cat ar a ct s in both ey es a nd underwent cataract-removal surg ery on his lef t e y e in 2001. B y October 2001, a cataract had developed in Colwell’s rig ht
ey e that rendered him totally blind in that ey e by 2002. That
cataract has never been treated a nd i s t h e m edical condition at issue in this case.

According to R. B ruce B annister, D.O., the NDOC Medical Director, a cataract is “cloudiness (opacity ) of the lens of the ey e ” which “ does no damag e to the e y e and can be removed at any time.” Dr

. B annister, who is not an optometrist or ophthalmolog ist, declared that a cataract does
not cause pain, require urg e n t attention, or lead to p ermanent

v ision loss. H e declared further that a delay in re m o v i n g a cataract causes no harm. The N DOC has a formal w r i t t en pol i c y f or cataract treatment, Medical D irective 1 06, which states in part:C O L W E L L V

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P URP OSE:

...

I t is the policy of the D epartment that inmates with cataracts w ill be e v a l uated on a case b y

case basis, ta k i n g into consideration their ability to function within their current living environment.

...

P ROCEDURES:

106.01 Surg ical Removal of Cataracts

1. P a t i e n t s w i t h v i s u a l i m p a i r m e n t incompatible with the ability to perform the required tasks o f daily living in their current living environment may b e considered for removal of a cataract.

2. All cataracts ex t r action requests must be approved by the Utiliz ation Review Panel a nd the Medical Director.

At least three medical prov i d e r s – Drs. Snider, F ischer (ophthalmolog ist), and F isher (optometrist) – recommended that Colwell’s rig ht-ey e cataract be treated. Colwell first informed the NDOC of blindness in h is rig ht ey e d u r i n g an Octobe r 2001 phy sical with prison phy sician Dr. Snider. I n J uly 2002, D r. Snider noted the presence o f t h e c a taract a nd th at Colwell “need[ ed] two f unctioning ey es” because heC O L W E L L V

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worked sewing mattresses. 1 Dr. Snider referred Colwell to Michael J

. F ischer, M.D., an outside ophthalmolog ist. D r. F ischer ex amined Colwell in September 2002, observed that Colwell’s “visual acuity was correcta b l e t o 20/20 in the left
ey e,” found “a mature c a taract in t h e r ig ht ey e,” a nd

c o n cluded that rig ht-ey e cataract surg ery was indicated. B ased on Dr. F ischer’s recommendation, Dr. Sn ider submitted three requests for surg e ry to the Utiliz ation Review Panel. 2 The Panel denied Dr. Snider’s requests, first indicating that Colwell was on a waiting list b ut then deny ing the two subsequent requests wi t h o ut ex planation. Colwell filed several written g rievances betwe e n October a nd December 2003, compla i n i n g that althoug h Dr. F ischer h ad recommended surg e ry , Dr. Snider told him that the “department policy is ‘one ey e only ’ is needed” a nd the
surg ery would not be approved. All of Colwell’s g rievances were denied.

Colwell refused his annual phy sical every y ear from 2004
to 2008 an d did not receive f urther vision care until September 2 009, when he requested a cataract consultation. A prison optom e t r ist, a different D r. F isher, ex a mined Colwell and noted that he w as “having trouble working ” a nd that his righ t e y e was “elig ible for cataract surg ery

. ”

1 Co lw ell’ s m ed ical reco rd s f iled u n d er s eal rem ain u n d er seal ex cep t as to f acts d iscu ssed

h erein

.

2 T h e reco rd in t

h is case d o es n o t ex p lain th e ro le or co m p ositio n o f th e Utilizatio n Rev iew P an el, b u t w e h av e p rev io u sly ex p lai ne d t ha t “ [t]h e URP is co m

p o sed o f si x N D O C p h y s ician s w h o are b o ard

- certif

i ed in f am ily m ed icin e o r o th er sim ilar d iscip lin es, an d in clu d es t h e NDOC Med ical D i r e cto r. T h e URP rev iew s req u ests f o r sig n if ican t m ed i cal
p ro ced u res b y o u t s i d e p r o v i d ers, su ch as su rg ery f o r an in m ate.” S

n o w , 6 8 1 F.3 d at 9 83

.C O L W E L L V

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N N I S T E R 7

F ollowing u

p on Dr. F isher’s finding s, Dr. J ohn Scott, an NDOC senior phy sician, requested an ophthalmolog y consultation. The consultation report indicates that Colwell’s condition was not life- t h r e atening b ut did “sig nificantly affect” his quality

of life.

The nex t week, however, Dr. Scott discontinued the request. His handwritten notes state:

I had orig inally submitted request for consult

on 10-6-09 based purely on optometrists [ sic] opinion. But pt h as 2 0/20 vision OS [ left
ey e]

. So can actually

qualify to drive a car in
many states of

. . . U.S. A s well this issue has

no implications of damag e to [ r i ght] ey e if
cat a r act g oes unrepaired. Therefor[ e] on further reflection I a m [ discontinuing ] the orig inal request for ophthalog ic consultation.

There is n o indication Colwell was informed of the discontinuation, and he f iled at leas t o n e written request inquiring about the status of the referral. He also spoke with Dr. Gedney

, another prison phy sician, about the issue during

an appointment on F ebruary 18, 2010. Dr. Gedney ’s not e s reflect that Colwell did not meet the criteria f or surg ery because h e has sig ht out of his left ey e , and she told Colwell that he did n ot qualify for cataract removal due to a “ one ey e only ” policy

.

Colwell ag ain f

iled a series of g rievances. He complained that the optometrist who had ex amined him recommended a
cataract consult for p os sible surg ery , but that Dr. Scott h ad discontinued the consult because he has o ne “ g ood” ey e. His informal g rievance was d e nied w ith the following response:C O L W E L L V

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Administrative Reg ulation 618 defines y our

r e q u e s t f o r c a t a r a c t s u r g e r y a s cosmetic/elective surg ery

. O ne is corrected to 20/20 vision n o w

. This places this, the 2nd

c a taract surgery[,] in a non-essential category, despite re commendation from D r [

. ] F i sher [the p rison optometrist]

. I cann o t predict when this may b e c onsidered for repair, but at this time, it is not considered for repair by Utiliz a tion Review.

(Emphasis added.) Colwell’s first-level g r i e v a n ce was denied for the same r eason. Dr. B annis t e r personally denied his second-level g rievance on March 9, 2010, stating :

I have reviewed y our written g rievance a nd the answers provided at the informal and first level. I ag ree with these r esponses. I n almost

cases [ sic] cat aract surg ery is not an emerg ency

. You should be e v aluated periodically to determine the deg ree o f impairment c a

used by y our catara c t with
reg ard to y our a

bility to p erform the activities required in y our current living situation. B a sed on t h e p ractitioner[ ’] s evaluation the request can be re-considered.

Colwell filed this lawsuit under 42 U.S.C. § 1983 alleg ing

a violation o f his Eig hth Amendment rig hts. Specifically

, he claims that the prison off i c i als were d eliberately indifferent
to h is serious medical n e e ds in refusing him surg ery to r estore his vision. On the defendants’ m o t i o n for summary judg ment, the district court ruled, first, that Colw e l l ’s cataract-induced blindness was a serious med i c al need.C O L W E L L V

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However, it also held that Colwell failed to establish that the defendants were d eliberately indifferent to that n eed. I t reasoned that Colwell had not shown that the Ut iliz ation R eview Panel’s denial or d elay in approving surg ery le d t o fur t h e r i n

jury to his ey e , and ex plained that “medical providers have determined that s u r g e ry is n ot medically warranted in lig ht o f P laintiff’s overall visual acuity a nd ability to adequately function.” The c o u rt also held that the Panel’s decis i o n t o refuse surg ery amounted to a difference of opinion over the b est course of treatment, and that Colwell had not shown tha t the NDOC’s course of action was “medically u nacceptable” or “made in c o nscious disreg ard o f

an excessive risk

to his health.”

D ISCUSSION

1. Legal Standards

W e have jurisdiction pursuant to 28 U

. S.C. § 1 291, a nd review de n ovo the dis t r i c t court’s g rant of summary judg ment. Toguchi v

. Chung

, 391 F

. 3 d 1051, 1056 (9th Cir. 20 0 4). “W e must determine, viewing the evidence in the lig ht most favorable to the nonmovi n g party , whether there

are any g e nu i n e i ssues of material fact and whether the district court c orrectly applied the relevant substantive law.” Pris o n Legal News v. Lehman

, 397 F .3d 692, 698 (9th Cir. 2005).

The g overnment ha s a n “oblig ation to provide medical

care for those whom it is pu n i s h ing by incarceration,” a nd failure to meet tha t o blig ation can constitute an Eig hth Amendment violation co gn iz able under § 1983. Estelle v

. Gamble , 429 U.S. 97, 103–05 ( 1976). I n order to prevail on

an Eig hth Amendment claim fo r inadequate medical care, aC O L W E L L V

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p l a intiff must show “ deliberate indifference” to his “seri o u s medical needs.” Id. at 104. T his includes “both a n objective standard—that the deprivation was serious enoug h to constitute cruel a

nd u nusual punishment—and a subj e c t i ve standard—deliberate indifference.” Snow , 681 F .3d at 985.

To meet the o bjective element of the standard, a p laintiff
must demonstrate the ex iste n ce of a serious medical need. Estelle

, 4 29 U.S. at 104. Such a need ex ists if failure to treat the injury or condition “could r e s ult in further sig nificant injury ” or cause “the unnecessary and wanton in fl i c t ion o f pain .” Jett v

. Penner
, 439 F .3d 1091, 1096 ( 9th Cir. 2 006) (quoting M

cGuckin v

. Smith

, 974 F. 2 d 1050, 1059 (9th Cir. 1992), overruled in part o n o t her grounds by W MX Techs., Inc. v. Miller

, 104 F

. 3d 1 1 3 3 ( 9 th Cir. 1997) (en banc)) (internal quotati o n marks omitted). I n dications that a p laintiff has a serious medical need include “ [ t ] h e e x istence of an injury that a reasonable doctor or patient wo u l d find important and worthy of comment or treatment; the presence of a medical condition that sig nificantly affects an individual’s daily activities; or the e x isten ce of chronic a nd substantial pain.” McGuckin , 974 F .2d at 1059–60.

A prison off

i c i a l is deliberately indifferent under the subjective e lement of the test only if the official “knows o f and disreg a

rds an ex c essive risk to inmate health and safety

. ” Toguchi

, 391 F .3d a t 1 0 5 7 (quoting Gibson v. Cnty. of W a s h o e , 290 F .3d 1175, 1 1 87 (9th Cir. 2002)) (internal quotation mark omitted). This “requires more than ordinary lack of due c are

. ” Farmer v. Brennan
, 511 U .S. 8 25, 835 (1994) (quoting W

h itley v. Albers

, 475 U.S. 312, 319 (1986)) (internal quotation mark omitted). “[ T] h e o fficial must both be aware of facts from which the inference could be d r awn that a substantial risk of serious h arm ex ists, and he must alsoC O L W E L L V

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draw the inference.” Id. at 837. D eliberate indifference “may
appear when prison of

f i c i a ls deny

, delay o r intentionally interfere with medical treatmen t , o r it may b e shown b y the
way in which prison phy si c i a n s provide medical care.” H u tchinson v. United States
, 838 F .2d 390, 394 (9th C i r. 1988). “I n deciding whether there h as been deliberate indifference to an inmate’s serious medical needs, we need

n o t defer to the judg ment of prison doctors o r administrators.” H

unt v. D e n t a l Dep’t
, 865 F .2d 1 98, 200 (9th Cir. 1989).

2. Serious Medical Need

W e ag ree with the district court that monocular blindness is a se rious medical n eed. Althoug h blindness in one ey e is
not life-threatening

, it is no trifling matter either. I t is n o t a bump or scrape or tummy ache. Monocular blindness is the loss of the function of an org an. Other courts have held that similar and even less severe losses of vision are serious medical needs. F or ex ample, in Koehl v. Dalsheim

, the Second Circuit held that an inmate who needed ey eg lasses for double vision and loss of depth perception had a s e r i o u s medical need. 85 F .3d 86, 8 8 ( 2 d C i r. 1 996). Althoug h the inmate’s condition did n ot “ inevitably entail pain,” he alleg ed he suffered injuries caused by falling or walking into o bjects. Id. The c ourt ruled these consequences “ adequately meet the
test of ‘suffering ’” the Supreme Court “recog niz ed is inconsistent wi t h ‘ contemporary standards o f decency

. ’” Id. (quoting Estelle , 429 U.S. at 103). 3

3 Sev eral co u rts h av e reach ed co n clu sio n s c o n s isten t w ith Ko eh l

. S ee Co b bs v. Pra msta lla r , 47 5 F. A p p ’ x 57 5
, 5 8 0 (6 th Cir. 2 0 1 2) (u n p u b lish ed ) (cataract cau s in g an in m ate to stru g g le w ith d e p t h
p ercep t io n an d w alk in to o b j ects w as a s erio u s m ed ical n eed w h ere d elayC O L W E L L V

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Nevada d istrict courts a ddressing claims sim i l ar to Colwell’s have found cataracts to b e serious medical needs. The d istrict court in W

hite v. Snider concluded that a cataract causing c omplete blindness in one ey e was a serious medical need w here d octors recommen d e d cataract removal a nd the plaintiff ex perienced headaches and had difficulty s eeing in the prison y ard. No

. 3:08-CV-252-RCJ (VPC), 2 010 W L 331742, at *5 (D. Nev. J an. 2 6, 2010). The court in Michaud

v. Bannister likewise held that a plaintiff’s “ a dvanced cataract” was “squarely w ithin the ambit of ‘serious medical needs’” where the plaintiff testified that “he had lost almost all of his ability to see i n h i s rig ht e y e,” and “blindness a nd irreparable injury could result fro m h i s untreated cataract.” No. 2:08-cv-01371-MMD-PAL
, 2012 W L 6720602, a t *5 (D. N e v

. Dec. 2 6, 2012). Most recently

, the court in Layt o n v. Bannister held that a rig ht-ey e cataract was a serious medical need despite the plaintiff’s hig h visual a cuity i n h i s l eft ey e , because his affected ey e was blind an d the condition was sig nificant e noug h that an e x amining o p t ometry c onsultant referred him to the Utiliz a tion Review Panel for surg ery

. No. 3:10-CV-00443-L RH-W GC, 2012 WL 6969758
, at *6 (D.

in cataract- rem o v al su

rg ery n ecessitated

a risk ier p ro ced u re an d resu lted in co m plicatio n s); co mp are Ga rcia v. Nev. Bd

. o f Priso n Co mm’rs
, No

. 3 :0 6

- C V- 0 1 1 8 J CM (VP C), 2 0 08 W L 8 1 8 9 8 1
, at * 1 7 (D. Nev

. Mar. 2 4
, 2 0 0 8 ) (“ [T ]h ere is n o q u estio n th at lo si n g si g h t in o n e ey e co n s titu tes a

‘ serio u s’ m ed ical n eed .”), with Ca nell v. Mu l tn o ma h Cn ty. , 1 4 1 F. Su p p

. 2 d 1 04 6, 1 0 5 7 (D. Or. 2 0 0 1 ) (“ W h ile sev ere ey e in j u ries o r leg al b l in d n ess

m ay co n stitu

te a serio u s m ed ical n eed

, t h at is n o t th e case w ith read in g g lasses.”). In a d if

f eren t co n tex t, th e Su

p rem e Co u rt h a s i n d icated th at

m o n o cu lar v isio n is lik ely to b e a disab i lity w ith in th e m ean i n g o f th e A m erican s w i t h Disab ilities A ct. Alb ertso n ’s, In c. v. Kirkin g b u rg , 5 2 7 U.S. 5 5 5
, 5 6 6

– 6 7 (1 9 9 9 ) (ex p l ai n i ng th at “ m o n o cu larity in ev itab ly lead s t o so m e lo s s o f h o rizo n t al f ield o f v i sio n an d d ep th p ercep tio n ” an d th at “ p eo p le w i th m o n o cu lar v isio n ‘ o rd i n arily ’ w ill m eet th e A ct’ s d ef in i tio n o f d isab ility ”).C O L W E L L V

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Nev. Sept. 28, 2012), report and recommen d ation adopted

, No. 3:10-CV-00443-L RH-W GC, 2013 W L 420427 (D. Nev. J an. 31, 2013).

L ike the medical conditions i n W hite

, Michaud

, a

nd Layton
, Colwell’s cataract is severe. “ [ I ] t is clear that this is
not a situation of a minor cataract with little i m p a ct on an inmate’s vision.” Michaud

, 2012 W L 6720602, at *5. Colwell’s rig ht ey e has been blind for more than a decade, and h is cond i t i o n affects his perception and r enders him unable to see if he turns to the left. Several doctors, including

an ophthalmolog ist and an optometrist, have f ound the

c ataract and resulting vision loss “important a nd worthy o f comment or treatment.” McGuckin , 974 F .2d at 1059.

F urthermore, the evidence showed that Colwell was not “merely b lind” in o ne ey e, but that his monocula r b l i n dness caused him phy sical injury : He ran his hand throug h a sewing machine on t w o occasions while working in the prison
mattress factory ; he ran into a concrete block, splitting open his forehead; he reg

ularly hits his head on the upper bunk of his cell; and he bumps into other inmates who are not g oodnatured about such encounters, trig g ering f ig hts on two occasions.

To r eiterate

, w e ag ree with the district c ourt that Colwell’s total blindness in one ey e is a serious medical need.

3. Deliberate Indif

f e rence

W e now turn to the second prong o f the inquiry

, whether the defendants were deliberately indiffere n t

. T his is not a

case in which there is a d ifference o f m e d i cal opinion about which treatment is best for a particular patient. Nor is this aC O L W E L L V

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N N I S T E R 14

case of ordinary medical mistake or neg lig ence. Rather, the evidence is undisputed that Colwell w as denied treatment for his monocular blindness solely because of an administrative
p olicy

, even in the face o f medical r ecommendations to t h e

c o n t r ary

. A reasonable jury could find that Colwell w a s denied surg e ry , not b ecause it wasn’t medically indicated, not because his c ondition was misdiag nose d

, not because the
surg ery wouldn’t have helped him, but b ecause the policy o f the NDOC is to re quire an inmate to endure reversible blindness in one ey e if he can still see out of the other. This is the very definition of deliberate indifference.

T h e d istrict court held that Colwell did not show the NDOC’s de c i s i o n to delay or deny treatment caused him harm. This ig nores the plain f a c t that as l o n g a s t he ey e remains untreated, Colwell continues to suffer blin d n es s in his rig h t ey e, which is harm in and o f itself, along with all o f the other harms and dang ers that flow from that. The record is sufficient to create a triable issue of f act reg arding whether Colwell has been harmed by the refusal of treatment. See Michaud

, 2012 W L 6720602, at * 8–9 (plaintiff showed harm from delay of cataract surg ery where his impairment resulted in fig hts with other inmates, causing “missing teeth and black

e y es”). Contra Layton
, 2012 W L 6 969758, at * 9 (disreg arding collateral injury and holding that the visual acuity in plaintiff’s g ood ey e was the b est measure of f urther injury since his cataract-affec t e d ey e was already totally blind).

I n the district court’s view, this is c ase about a difference of opinion over whether treatment is medically war r a nted. W e disag ree. “A d ifferenc e o f o pinion between a phy sician

a nd the prisoner—or between medical professiona l s

— concerning what medical care is a ppropriate does not amountC O L W E L L V

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N N I S T E R 15

t o d e l iberate indifference.” Snow
, 681 F .3d at 987. Rath e r, “[ t] o show deliberate indifference, the plaintiff ‘must show that the c ourse of treatment the doctors chose was medically unacceptable under the c ircumstances’ and that the defendants ‘chose this course in conscious disreg ard o f an

ex c e ssive risk to plai n t i f f ’s health.’” Id. at 988 (quoting Jackson v. McIntosh , 90 F .3d 330, 332 (9th Cir. 1996)).

I n Snow v. McDaniel

, which was decided shortly after the district court issued its decision in this case, an NDOC death

row inmate broug ht an E ig h th Amendment claim a f ter the Utiliz a tion Review Panel repeatedly refused to authoriz e hip replacement surg ery recommended by outside specialists a nd a treating phy sician. 681 F .3d at 9 83–84. The Panel denied
surg ery for approx imately t w o y e a rs, concluding that the condition could be treated w ith pain medication even thoug h it was a n “emerg ency ” and “potentially life threatening .” Id

. T h e S n o w court held that “the circumstances

. . . raise[ d] an inference that the defendants were unre asonably r ely ing on their own non-specializ ed c onclusions” instead of the recommendations of the plaintiff’s treating specialists. Id. at 986. Therefore, “a reasonable ju r y could conclude that the decision of the non-treating

, non-s p e c ialist phy sicians to repeatedly deny the recommendations f o r surg e ry was medically unaccep t a b l e under all of the circumstances.” Id

. at 988; see also Hamilton v. Endell

, 9 81 F .2d 1062, 1067 (9th Cir. 1992) (“B y choosing to r e l y u pon a medical opinion wh i c h a reasonable person would likely determine to be inferior, the prison official s took actions which may have amounted to the denial of me d i c a l treatment, and the ‘unnecessary a

nd wanton infliction of pain.’”), o v erruled in part on other grounds a s r e cognized in Snow
, 681 F .3d at 986.C O L W E L L V

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N N I S T E R 16

The r ecord in this case indicates that the NDOC similarly ig nored the r e c ommendations of treating specialists a nd instead relied on the o p i n i ons of non-specialist and nontreating medical officials who made decisions based on an administrative policy

. Colwell was seen by e y e specialists on at least two occasions, f

irst by ophthalmolog ist Dr. F ischer in 2002 and then by a prison optometrist in 2009. B oth specialists recommended cataract surg ery after personally

ex a mining the cataract, y et the NDOC disreg arded these recommendations.

The record supports a conclusion that the specialist s’ recommendations f

or surg ery were overridden not because o f conflicting medic al opinions about the proper course o f treatment, but because officials enforced the “one ey e o nly ” policy

. The NDOC’s formal cataract-treatment policy

, Medical Directive 106
, m a n d at e s “ c a s e b y c ase” consideration of cataract treatment requests taking into
account an inmate’s “ability to function,” b u t t he evidence here shows that the NDOC denies cataract surg ery as long a s

a prisoner has o ne “g ood” ey e. Colwell was told on multiple occasions that he would not r e c eive treatment because h e h ad

a healthy left ey e , which made surge ry unnecessary despite the ex amining specialists’ opinions.

F acing similar facts, Nevada district courts have refused
to g rant summary j u d gm e n t in f avor of prison officials. I n Michaud

, the district court held that there was a g enuine issue of f act whether the Utiliz a tion Review Panel was deliberately indifferent when it knew that the prisoner faced p ermanent blindness but denied the recommendation for cataract surg ery and instead o rdered an ey e patch and headache pills. 2012 W L 6720602, at *7. The court ex p lain e d t hat the facts indicated that every phy sici a n who r eviewed the inmate’sC O L W E L L V

. B A

N N I S T E R 17

v i sion concluded surg ery was necessary , and that “ the onl y difference of opinion ex isted between these p hy sicians a nd the URP.” Id. at *8.

Similarly

, the W

hite court held that there were triable issues of fact where there w as a difference o f opinion between “ the optometric sp e ci a l i sts at the ey e clinic w ho recommended cataract removal and the defendants who claim the proce d u r e is not necessary .” 2010 W L 331742, at *5. The court r easoned that “a fa c t u a l i ssue r emain[ ed] as to whether defenda n t s surrendered professional judg ment a nd dismissed complain t s based on the mere categ oriz ation o f cataract removal as ‘not medically necessary .’” Id. at *6. 4

The defendants ask us to disreg ard these cases a nd instead rely on Cobbs

, an unpublished Six th Circuit decision in which the court held that the Michig an Department of Correction’s Chief Medical Officer was not deliberately indifferent when his Medical Committee denied a request for cataract surg ery and refuse d a subsequent request f o r an ophthalmolog y consultation, despite specialist recomme n dations. 475 F

. App’x at 5 81–84. Our case is disting uishable from this nonprecedential, 2-to-1 Six th C i r c u i t case in at least one very i mportant r espect. Cobbs actually received the catara ct

4 T h e d ef en d an ts w an t u s to f

o llo w La yto n , i n w h ich a Nev ad a d istrict

c o u r t f o u n d t h at th ere w as n o d elib erate i n d if f eren ce b ased o n f

acts an d alleg atio n s v e r y si m i lar to t h o se in th e case. S

ee 2 0 1 2 W L 6 9 6 9 7 5 8
, at

* 1 1

. T h e rep o rt an d r e c o m m e n d a tio n in La yto n relies in p art o n th e d istrict co u rt’ s earlier g ran t o f su m m ary j u dg m en t in th e in stan t case, see id

. at * 10
, an d th e r e p o rt an d reco m m en d atio n s in b o th cases w ere p rep ared by t

h e sam e m ag istrate j u d g e. W e f in d La yto n ’s d elib erate in d if f eren ce an aly sis u n

p ersu asiv e f

or m an y o f th e sam e reaso n s d etailed in th is o p i n io n , b u

t w e ag ree w ith its co n clu sio n th at a cataract can am o u n t to a serio u s m ed ical n eed

. See id

. at * 6

.C O L W E L L V

. B A

N N I S T E R 18

surg ery he needed after he filed his la w s u it. I d. at 579. He continued h is suit afterward to recover damag es for the delay in treatment. Id. at 5 76. Colwell, on the other hand, has been and continues to be denied t h e surg ery that three different d o ctors say he currently needs. I n any event, to w h a t e v e r

e x tent Cobbs can be read to condone the refusal to treat treatable c ataracts solely because the inmate can still see out of one ey e, we r e

j e c t t h a t view, as did Six th Circuit J udg e Cole. I d

. at 584–85 (Cole, J ., dissenting ).

A r easonable jury could find that NDOC officials denied
treatment because Colwell’s medical need confl i ct e d with a prison policy

, not be ca u s e non-treatment w as a medically acceptable option. See Hamilton

, 981 F .2d a t 1066 (holding that summary judg m e n t was inappropriate “ where prison officials and d o ctors deliberately ig n ored the ex press orders

o f a prisoner’s prior phy sician for reasons unrelated to t h e medical needs of the prisoner”).

4. P ersonal P articipation

The defendants u rg e u s to u phold summary j udg ment because, they arg ue, neither Dr. B annister n o r former a nd now-retired NDOC Director H oward Skolnik was personally involved in any constitutional deprivation. S e e Jones v

. W illiams

, 29 7 F. 3d 930, 934 (9th Cir. 2002) (“I n order f or a person acting under color o f state law to be l i a b l e u nder

se c tion 1983 there must be a showing of personal participation in the alleg e d r i ghts d e p rivation

. . . .”). The defendants never arg ued befo r e the district c ourt that Dr. B annister lacked personal involvement, and the district court did not reach their arg

uments concerning

Director Skolnik.C O L W E L L V

. B A

N N I S T E R 19

Althoug h many o f the e vents in this c ase occurred before Dr. B annister became NDOC Medical D i r e ct or in 2005, he personally denied C o lwell’s second-level g rievance even thoug h he was aware th a t an optometrist had recommended
surg ery and that Colwell’s lower-level g rievances had been denied d e spite that recommendation. According ly

, a reasonable jury c ould find that Dr. B annister, pursuant to a policy ra t h e r than a considered medical judg ment, contributed
to the decision to refuse treatment in conscious disreg a rd o f

an ex cessive r isk to Colwell’s health. See Snow
, 6 81 F

. 3 d at 989–90.

T h e re a re no facts indicating D irector Skolnik w a s personally involved in Colwell’s medical care, but the current NDOC Director is still a proper d efendant in Colwell’s claim for injunctive relief “ b ecause he would be responsible for ensuring that injunctive relief was carried out, even if h e was not personally involved in the decision g ivin g rise to [ the plaintiff’s] claims.” Pouncil v. Tilton

, 704 F .3d 568, 576 (9th Cir. 2012). W e have held that a corrections d ep a r t m e n t

s e c retary and prison w arden were proper defendants i n a § 1983 case b ecause “[ a] plaintiff seeking injunctive relief
ag ainst the State is not re q u i red to a lleg e a named official’s personal involvement in the a cts or omissions constituting the alleg ed constitutional violation. Rather, a plaintiff need only identify the law o r policy challeng ed as a co nstitutional violation and name the official within the ent ity who can appropriately respond to injunctive relief.” Hartmann v. Cal. Dep’t o f Corr. & Rehab.

, 707 F .3d 1114, 1127 ( 9th Cir. 2 013) (citations omitted). Colwel l contends that the NDOC Director would b e responsible for implementing any injunctive relief and the defendants do not disag ree.C O L W E L L V

. B A

N N I S T E R 20

CONCLUSION

W e therefore REVERSE the district court’s g rant o f
summary judg ment in favor o f the defendants and REMAND for further proceeding s consistent with this opinion. 5

B YB EE, Circuit J udg e, dissenting :

Since 2002, J ohn Colwell has been blind in his rig ht ey e

as a result of a cataract. Prison doctors recommended that his condition be corrected b y s u r g e r y , a request the Nevada Department of Corrections ( “ N DOC ” ) denied in 2 003. F o r the nex t five y ears, from 2004 to 200 9
, C o lwell refused

a d d itional medical treatment by failing to show up f o r hi s annual p hy si c a l

. N ot until 2010 did Colwell file g rievances

over the State’s r efusal to provide h im with cataract surg ery

.

Colwell is o ne of the 2 0.5 million Americans over the ag e of 40 who suffer from cataracts. 1 L ike many o thers who have

5 W e ex p ress n o o p in io n reg ard in g w h eth er th e d ef

en d an t s are en titled
to q u alif ied im m u n ity o n Co lw ell’ s claim f o r d am ag es, leav in g th e d istrict

co u rt to ad d ress t

h at issu e in th e f

irst in stan ce. S

ee Rich a rd

s o n v. Ru n n els

, 5 9 4 F.3 d 6 6 6
, 6 7 2 (9 th Cir. 2 0 1 0 ) (“ Here, w e d o n o t reach q u alif i e d im m u n ity b ecau se t

h e issu e h as n ev er b een ad d ressed b y th e d istrict

co u rt.”); S

ch n eid er v. Cn t y. o f S a n Dieg o , 2 8 F.3 d 8 9
, 9 3 (9 th Cir. 19 9 4) (“ T h e d istrict co u r t g ran ted su m m ary j u d g m en t w ith o u t reach in g th e im m u n ity issu es. T h ese issu es sh o u ld b e ad dressed in th e f irst i n stan ce b y th e d istrict co u rt.”).

1 Cen ters f

or Disease Co n tro l an d Prev en tio n , C o mmo n Eye Diso rd ers , (A p r. 2 3
, 2 0 1 3 ) w

w w

. cd c.g o v

/v isio n h ealth /b asic_ in f orm atio n /
ey e_ d iso rd ers.h tm

.C O L W E L L V

. B A

N N I S T E R 21

cataracts, he is in n o p a i n and in no dang er of suffering permanent loss of vision. I n the n ine y ears after he developed the cataract, Colwell worked in prison industries sewing mattresses, doing y a

rd work, training dog s, and serving in the culinary unit. He routinely participates in relig ious activities, play s cards, attends a computer c lass, ex ercises, and watches television; he is a l s o a “voracious reader.” His only complaint r elative to the b lindness in his rig ht ey e is that, since he d e v e loped the cataract in 2002, h e ran his hand throug h a sewing machine (twice), g ash e d h i s head on a concrete block, bonks his h ead on t h e upper bunk, a nd occasionally

bumps into other inmates.

I f I were th e warden, and if I had the resources at my disposal, I would make sure that C o l well g ot his elective
surg ery

. B ut that is not the question before us. The question is whether the State’s refusal to o btain surg ery for Colwell’s
ey e constitutes “cruel and u nusual punishment ” i n violation

o f t h e Eig hth Amendment. The majority answers with a resounding “y es,” but I fear that the a nswer is not as facile a s t h e m a j o r ity makes it o ut to b e. I t turns out that w e, distr i ct courts in our circuit, and courts around the United States have strug g led w ith this question. And with g ood reason. W e have a g rowing

—and, more importantly

, an ag ing —prison population, and we are g o ing to face these kinds of problems

more and more frequently

. The b ig question for us as courts is the ex tent to which the E ig h th Amendment dictates the answers to these problems.

I n E stelle v. Gamble

, 429 U.S. 9 7 (1976), the S u p reme Court applied the E i gh t h Amendment’s prohibition ag ainst “cruel and unusual punishments” to “the g overnment’s ob l i ga t i o n to provide medical care for those whom it is punishing by incarceration.” Id. at 1 03. Althoug h “ n o t

. . .C O L W E L L V

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N N I S T E R 22

every claim by a prisoner that he has n o t received adequate medical treatment states a viola t i o n of the Eig hth Amendment,” the Constitution proscribes “‘unnecessary a nd

wa n t o n infliction of pain’” throug h “deliberate indifference
to s e rious medical needs of prisoners.” Id. at 104–05 (quoting Gregg v. Georgia
, 428 U.S. 153, 17 3 (1976)). J udg e d by this standard, N D O C h as not violated the Eig hth Amendment, because Colwell is not suffering any pain from his cataract a

nd he is fully f

u n c t i o ning in the ordinary tasks of prison life. His mishaps a r e not unex pected g iven the vicissitudes of life, the ag ing process, and his incarceration.

Our court has construed the “serious medical ne e d s ” standard in Estelle to g o well bey ond medical conditions that

cause pain. I n McGuckin v. Smith

, we held t h at a “serious medical need” encompassed a n y “ injury that reasonable doctor or patient w ould find important an d worthy o f
comment or treatment.” 974 F .2d 105 0, 1059–60 ( 9 th Cir. 1992), overruled on other grounds by W M X T echs., Inc. v

. Miller

, 104 F .3d 1133 (9th Cir. 1997). Rely ing o n this standard—a standard better suited f or c o u n seling doctors h ow to avoid malpractice c laims—the majority has little d ifficulty concluding that the State has violated the Eig hth Amendment. Maj. O p. at 9

– 1 0
, 1 3

. B ut McGuckin cannot be a correct reading of the Court’s Eig hth Amendment cases, a nd unless

we overturn it e n banc, we w ill make o u rselves the authors o f

a “National Code of Prison Reg ulation,” Hu d s o n v

. McMillian

, 503 U .S. 1, 28 (199 2 ) (Thomas, J
., dissenting ), the ombudsmen for the circuit’s prisons, and the arbiters o f acceptable medical standards. These problems, however, a re much too complicated to be addressed throug h the blunt force of the Eig hth Amendment.

I respectfully

dissent.C O L W E L L V

. B A

N N I S T E R 23

I

A

The Supreme Court first addressed the Eig hth Amendment in W

ilkerson v. Utah

, 99 U.S. 130 ( 1 8 7 8 )

, a challeng e to the Utah Territory ’s p lan to ex ecute W ilkerson by firing squad. 2 The Court held that capital punishment did
not violate the E ig hth Amendment, but observed that drawing

a n d q u a r t e r i n g , p u b l i c d i s s e c t i o n , b u r n i n g a l i v e , disembowelment, and all other punishments “in the same line of u n n e cessary cruelty ,” a re forbidden by the Constitution. Id. at 135–37. L ater Court deci s ions described c ruel a nd unusual punishmen t s as those that “involve torture or a ling ering death,” W

eems v. United States
, 217 U.S. 349, 370 (1910), or the “wanton infliction of pain.” Gregg
, 428 U .S. at 173 (discussing Furman v. G eorgi a , 408 U.S. 238, 392–93 (1972) (B urg er, C.J
., dissenting ) ); see a l s o Baze v. Rees
, 553 U .S. 35
, 4 8–49 (2008) (plurality opinion); In re Kemmler

, 136 U.S. 436 (1890).

Ov e r the course of these e arly cases, the Court shifted from a focus on h istorically prohibited punishments to a broader recog n ition that the E ig hth Amendment is not a “static concept.” Gregg
, 428 U.S. a t 173. Althoug h this shift

ex p anded the breadth of the Eig hth Amendment, the Court cautioned that “the requirements of the Eig hth A mendment
must be applied with an awareness of the limited role to be

2 T h e Su p rem e Co u rt d id n o t ev en m en tio n th e Eig h th A m en d m en t u n t i l th e m id d le o f th e Nin eteen th Cen tu ry

. S ee Pervea r v. Ma ssa ch u setts , 7 2 U.S. 4 7 5
, 4 7 9 –8 0 ( 1 86 6 ) (ack n o w l ed g in g P erv ear’ s Eig h th A m en d m en t arg u

m en t , b u t d eclin in g to a d d r e ss th e i ssu e becau se th e Eig h th A m en dm en t d id n o t ap p l y to th e states).C O L W E L L V

. B A

N N I S T E R 24

play ed by the courts.” I

d. at 174. After all, “[ c] ourts are not representati v e bodies,” id. a t 1 76 (internal quotation marks omitted), a

nd “[ a] decision that a g iven pu n i s h m ent is impermissibl e u nder the Eig hth A mendment c annot be reversed short of a const i t u tional amendment.” I d

. at 175. Cog niz ant o f these warning s, the Court nevertheless

ex p anded the reach of the Eig hth Amendment b e y o n d
p u n i s h m e n t s t h e m s e l v e s , a n d i n t o c o n d i t i o n s o f imprisonment, beg inning with inmate health care.

The g overnment’s oblig ation to provide inmates with medical care follows from Gregg ’ s h o l ding that the Eig hth Amendment prohibits the “wanton infliction of pain.” Id. at 173. During the same Term it d ec i d e d G regg , the Court in Estelle considered for the f irst time whether the Eig hth Amendment applied to prison conditions. 429 U.S. 97. The Court held that the g overnment h as an o blig ation t o provide medical c are for incarcerated p eople because failure to do so “may actually produce phy sical ‘torture or a li n ge ring death,’” or “pain and suffering ” without “any penolog ical purpose.” Id. at 1 03 (quoting Kemmler

, 136 U .S. at 447, a nd discussing G regg , 428 U.S. a t 173 )

. C a utioning that “every claim by a prisoner that h e has not r eceived adequate medical
treatment [ does not] state[ ] a violation of the Eig hth Amendment,” the Court hel d that the Eig hth A mendment prohibits “deliberate indifference to serious medical needs o f prisoners.” Id. at 105.

Since then, the C o u r t has repeated that “‘deliberate indifference to serious medical needs o f prisoners’ v i o l ates the [ Eig hth] Amendment b ecause it constitutes the
unnecessary and wanton infliction of p ain contrary to contemporary standards of decency .” Helling v. McKi n n e y , 509 U.S. 25, 32 (1993) ( q u o t i n g Estelle

, 4 29 U.S. at 104).C O L W E L L V

. B A

N N I S T E R 25

Thus, “only the unne c essary a n d wanton infliction of p ain implicates the Eig hth Amendment. ” W ilson v. Seiter
, 501 U.S. 2 94, 297 (1991) ( internal quotation marks omitted);

see a lso Hope v. Pelzer

, 5 3 6 U.S. 730, 737–38 ( 2 002); Farmer v. Bre n n a n , 511 U.S. 825, 834 (1994); H udson

, 503 U.S. at 5 ( r e ferring to “the settled rule that the
unnecessary a

nd wan t on infliction of p ain

. . . constitutes cruel a nd unusual p unishment f orbidden by the Eig hth Amendment.” (omission in orig inal) (internal quotation marks o mitted)); W

hitley v. Albers

, 475 U .S. 312, 320 (1986) (“After incarceration, only the unnecessary a nd w anton infliction of pain

. . . constitutes cruel and unusual punishment f

orbidden by the Eig hth Amendment” (omission in o rig inal) (internal quotation marks omitted)). I n R h odes v

. Chapman

, 452 U.S. 337 ( 1981), the Court con s i d e r ed whether “conditions of c o n f

i n e m e n t ”

— i n that case, double celling —were cruel and unusual p u nis h m e n t

. The Court
ag ain emphasiz ed that the wanton and unnecessary infliction of pain was the touchstone of the Eig h th Amendment:

The double c e lling made n ecessary by the unanticipated increase in prison population did not lead to d eprivations of essential food,

me d i cal care, or sanitation. Nor did it increase viol e n c e among inmates or create other conditions intoler able for prison confinement. Althoug h job a n d education opportunities diminish e d marg inally a s a result of double celling

, limited work hours and delay before receiving education d o not inflict pain, m u c h less unnecessary and
wanton pain ; deprivations of this kind simply

are not p unishments. W e woul d have to wrench the Eig hth A m endment from itsC O L W E L L V

. B A

N N I S T E R 26

lang u age a n d history to hold that delay o f these desirable aids to rehabilita t ion violates the Constitution.

Id. at 348 (internal citation o m itted) (emphasis added). The C ourt concluded that the c omplaints “f[ e] ll far short in themselves of proving cruel a n d unusual punishment, for there is no evidence that d ouble celling under t hese circumstances either inflicts unnecessary or wanton pain or is
g rossly disproportionate to the severity of crimes warranting imprisonment.

. . . [ T] he Constitution does not mandate comfortable prisons,” or that pris o n e r s “be free o f discomfort.” Id . at 348–49.

B

Our own f

oray into the Eig hth Amendment has departed sig nificantly from the Court’s formulati o n. I nitially

, we followed Estelle and held that prisoner s “can establish an eig hth amendment violation with respec t to medical c are if they can prove there has been d eliberate indifference to their serious medical needs” such that it caused “unnecessary a nd
wanton infliction of pain.” H u n t v. Dental Dep’t.
, 865 F .2d 198, 200–01 (9th Cir. 1989) (internal q uota t ion marks a

nd citation omitted); see a lso Vaughn v. R icketts

, 859 F .2d 736, 741 (9th Cir. 1988); Anthony v. Dowdle

, 853 F .2d 741, 742–43 (9th Cir. 1988); W ood v. Sunn

, 852 F .2d 1205, 1210 (9th Cir. 1988); May v. Enomoto
, 633 F .2d 164, 167 (9th Cir. 1980). I n 1992, however, we g rafted a different formulation

on the Supreme Court’s holding in Estelle

. McGuc k i n , was

a case involving a pris o n er who endured “a sig nificant
amount of pain and ang uish” ca u sed by a hernia because prison officials failed to d iag nose his condition. 974 F .2d at 1061–62. There, as in Hunt
, we correctly observed that t h eC O L W E L L V

. B A

N N I S T E R 27

“‘[ u] n n ecessary and wanton infliction of pai n ’ upon incarcerated individu a ls under color o f law c onstitutes a violation of the Eig ht h A mendment.” Id. at 1059 (quoting Hudson

, 503 U.S. at 5) (alteration in orig inal). W e ex p lained that “ a prisoner must alleg e acts or o missions sufficiently harmful to evidence deliberate indifference to serious m e d i cal needs” in order to state a cog niz able Eig ht Amendment c laim, and that “ [ a ] ‘ serious’ medical need ex ists if the failure to treat a prisoner’s condition c ould result in further sig nificant injury or the ‘unnecessary a nd wanton infliction of pain.’” Id. (quoting Estelle

, 429 U.S. at 1 0 4). W e then ex p a n d ed upon Estelle a s follows:

The ex istence of an injury t h a t a reasonable doctor or patient w o u l d find important and worthy of comment or treatment ; the presence of a medical condition that sig nific a n tly affects an indiv i d u a l’s daily activities; or the

ex istence of chronic and substan tial pain a re

ex a mples of i n d i cations that a p r isoner has a “serious” need for medical treatment.

Id. at 1059–60 (emphasis added).

W e have since relied on McGuckin’s “worthy o f comment” standard, but have done so in just t w o p u b l ished
cases, 3 and it is not clear that either case depended on such a

3 It ap p ears in a do zen or so o f o u r u n p u b lish ed o p in i o n s

. S e e , e.g

. , Pa d illa v. Cra wfo rd

, 2 88 Fed

. A p p ’ x

. 3 89
, 3 9 1 (9 t h C i r. 2 0 0 8 ). Man y d istrict co u rts w ith in o u r circu it h av e cited to McGu ckin as w ell. A t least f o u r circu its h av e cited McGu ckin ’s co m m en t- w o rth in ess stan d ard

, alth o u g h it i s u n clear w

h eth er th o se circu i ts req u ire p ro o f o f p ain as w ell. S ee , e.g

. , Bla ckmo re v. Ka l a m a z o o Cn ty , 3 9 0 F.3 d 8 9 0
, 8 9 7 (6 th Cir. 2 0 0 4 ) (“ Mo st o th er circu its h o ld th at a m ed i cal n eed is o b j ectiv ely serio u sC O L W E L L V

. B A

N N I S T E R 28

broad rephrasing of the Supreme Court’s standard. See W ilhelm v. Rotman
, 680 F .3d 1113, 11 2 2 (9th Cir. 2 012) ( c i t i ng McGuckin for the proposition that a hernia is “ ‘ a n injury that reasonable doctor or patient would find important and worthy of comment or treatment,’” 974 F .2d at 1059–60; but also citing Jones v. Johnson

, 781 F .2d 769, 771 (9th Cir. 198 6 ) ( “He alleg es suffering and pain from his herniated condition

. . . .”)); see also Lopez v. Smith

, 203 F .3d 1122, 1131–32 ( 9th Cir. 2000) (en banc) (concluding that postoperative care for jaw that w a s b r o k en and wired shut was “the k ind of injury a doctor w ould find n oteworthy ” a nd was “likely p ainful”). B u t more frequently

, we have resorted to the standard statement that “the plaintiff must show a serious medical n e ed b y demonstrating that failure to treat a prisoner’s condition could result in further sig nificant injury

o r the unnecessary and w anton infliction of pain.” J e t t v. Penner
, 439 F .3d 1091, 1096 (9th Cir

. 2 0 0 6 ) (internal quotation marks omitted); see also Snow v. McDaniel

, 681 F .3d 978, 985 (9th Cir. 2012) ( “To m e e t t he objective standard, the denial of a plaintiff’s serious medical need must result in the ‘unnecessary and wanto n infliction of pain.’” (q uoting Estelle

, 429 U.S. at 104)), overruled on other grounds by Peralta v. Dillard

, 744 F .3d 1076, 1083 ( 9th Cir. 2 0 14) (en banc); Hallett v. Morgan
, 296 F .3d 732, 744– 4 5 (9th Cir. 2002); W

akefield v. Thomp s on , 177 F .3d 1160, 1164–65 (9th C i r. 1999). Most recently

, we stated that “[ a]

m e d i c al need is serious if failure to treat it will result i n

if it is o n e t h at h as b een d iag n osed b y a p h y sician

. . . o r on e th at is so

o b v io u s th at ev en a lay p erso n w o u ld easily reco g n ize th e n ecessity f o r a d o cto r’ s at t en tio n .”) (in tern al q u o t atio n m ark s o m itted ); Ch a n ce v. A r m stro n g , 1 4 3 F.3 d 69 8
, 7 02 (2 d Cir. 19 9 8 ) (d escrib in g co m m e n t

w o rth in ess as a “ h ig h ly relev an t” co n sid eratio n ); Gu tierrez v. Peters
, 1 1 1 F .3 d 1 36 4
, 1 3 7 4 (7 th C ir. 1 99 7 ) (d escrib in g McGu ckin as “ sen sib l e”); Rid d le v. Mo n d

ra g o n , 8 3 F.3 d 1 1 9 7 , 1 2 0 2 (1 0th Cir. 1 9 9 6 ).C O L W E L L V

. B A

N N I S T E R 29

‘sig nificant injury or the unnecessary and wanton infliction o f pain.’” P eralta

, 744 F .3d at 1081(quoting J ett , 439 F .3d at 1096).

The majority relies o n the “worthy of comment”
statement from McGuckin

. 4 The majority first recites our statement from McGuckin

, M a j. Op. at 10, and then applies it: “Several doctors, inclu ding an o phthalmolog ist and an optometrist, have found the c ataract a n d resulting vision loss ‘important and worthy of comment or treatment.’” Maj. Op.
at 13 (quoting McGuckin

, 974 F

. 2d at 1059). F rom this, a nd the a necdotal evidence that h e has injured himself because o f his monocular blindness, the majority concludes t h at “Colwell’s total blindness in one ey e is a s e rious medical need.” Maj. Op. at 13. The major i t y m a k e s no claim that Colwell suffers from a

n y pain attri b u table to his medical condition.

Our assertion in McGuckin

, 974 F .2d at 1059, relied on b y the majority here, that “ a

n injury that a reasonable d o c t or o r patient would find i m p o r tant and worthy of comment o r treatment” is a “serious medical need” covered by the Eig hth A m e n dment h as no provenance in any case that I can f i n d

. And the comment-worthiness standard is untethered from the Su p reme Court’s insistence that the Cruel and Unusual Punishments Clause has at its core t h e i nfliction o f “unnecessary and wanton pain.” Moreover, so f a r as I can determine, this is the first time we h ave a case in wh i ch the comment-worthiness standard really matters.

4 T h e m aj o rity d o es n o t, an d co u ld n o t, r e l y o n th e o th er ex am p les of serio u s m ed ical n e e d s cited in McGu ckin : a m ed ical co n d itio n th at

“ s ig n if i can tly af

f ects” a n in m ate’ s d aily activ ities o r “ ch ro n ic an d

su b stan tial p ain .” McGu ckin , 9 7 4 F.2 d at 1 0 6 0

.C O L W E L L V

. B A

N N I S T E R 30

W e have adopted t he wrong standard. I n the end, McGuckin’s comment-worthiness standard does not f ollow from the Supreme Court’s jurisprudence. The touchstone for Eig hth Amendment violations has alway s depended o n some sho w i n g t h a t the p unishment, the conduct o f prison a nd

m e d ical o fficials, or the conditions of confinement have resulted in the “the unnec e ssary and wanton infliction o f pain .” See W

ilson

, 501 U.S. at 297 (internal quotation marks and emphasis omitted) (emphasis added); Hudson , 503 U.S.
at 5; W hitle y , 4 7 5 U.S. at 320; Rhodes

, 452 U .S. at 348; Estelle

, 4 2 9 U. S

. at 104; see also Estelle

, 429 U.S. at 106 ( “Medical malpractice d oes not become a constitution al violation merely

because the victim is a prisoner.”).

Making the E ig hth A m e n d m e nt turn on a doctor’s notes does not approach this touchstone. Doctors may comment on patient’s c onditions for many rea s ons unrelated to pain. Doctors have an o blig ation to diag nose sy mptoms of phy sical and mental illnesses. Sometimes the body sends imperfect o r mix ed sig nals. Doctors w ill f requently tell us that a condition “bears watching .” Sometimes we g o to doctors for matters that are inconvenient or c osmetic. S ometimes we will have complaints—real or imag ined—that the doctor cannot verify

. Our complain t s may be medically noteworthy even if they fall w ell short of threatening o ur l i v e s o r causing us temporary or persistent pain.

Our McGuckin c omment-worthiness standa r d i s a ll the

more troubling because it d oe s n o t even depend o n a d octor thinking the matter is worthy of c omment. Under McGuckin

, it is sufficient if the “

patient w ould find [ the injury ] important and worthy

of comment or treatment.” McGuckin , 974 F .2d
at 1059 (emphasis added). A fter McGuckin

, a patient may self-report an Eig hth Amendment violation based on his o wnC O L W E L L V

. B A

N N I S T E R 31

perception o f what i s “ i m portant a nd worthy of comment o r treatment.” No medical diag nosis is required.

I I

I t i s u nderstandable that the majority bases much of its serious medical need analy sis on Mc G uckin’s commentworthiness standard because Colwell’s cata r a c t does not

cause the “wanton infliction o f pain.” Gregg
, 42 8 U

. S

. at 173. B ut I cannot ag ree with the majority that C o l w ell has endured “cruel and unusual punishment” simply because the doctors commented o n his cataract and recommended that it be corrected surg ically

. Given t h e importance of medical records, it would b e surprising if the medical professionals had failed to document his cataract or monocular blindness.

Althoug h Colwell’s doctors n oted his cataract, no o ne documented that the c ataract caused C o l well a ny p ain o r discomfort. N o r did a n y one sug g est that Colwell was sig nificantly limited in his life’s activities. N o r d oes the record support such a conclusion. I n his deposition, Colwell does not complain of any p ain or d iscomfort f r o m h i s cataract. The State’s doctors confirmed that cataracts do not g enerally cause pain. Dr. Scott wrote that “[ a] cataract does
not cause pain. Plaintiff did not complain of any pain due to his cataract.” Dr. B annister confirmed that “[ a] cataract does
not cause pain.” Nor does the cataract pose any direct threat
to Colwell’s phy sical well-being

. Dr. B annister’s declaration
states “ a cataract is not a condition that constitutes a medical
emerg ency , nor does a c a taract require urg ent m edical attention.

. . . A cataract d oes not lead to permanent vision loss.” Dr. Scott stated that Colwell “had documented normal vis[ ion] in his left ey e

. Non-interv e n t i o n to the rig ht ey e cataract presented no further health r isks to the Plaintiff.” HeC O L W E L L V

. B A

N N I S T E R 32

f u r t h er observed that “[ w ] hile any cataract c an be remove d
surg ically

, the removal of a catarac t is n ot medically
necessary in man y c ases b ecause the cataract does not structurally

damag e the ey e.”

Even thoug h Colwell is n ot in any phy sical pain, the untreated cataract and his resulting blindness may create a condition o f his confinemen t t h at causes unnecessary p ain and suffering . The majority so concludes:

[ T] he e vidence showed that Colwell was not “merely blind” in one ey e, but that his monocular b l indness caused him phy sical injury : He r a n h is hand throug h a sewing machine on two occasions while working in the pris o n mattress factory ; he ran into a concrete block, splitting open h is forehead; he

r e g ularly hits his head on the upper bun k o f his cell; and he bumps into other inmates who

are n o t g ood-natured about such encounters, trig g ering fig h ts on two occasions.

Maj. Op. at 13.

None o f these incidents withstands scrutiny

. L e t ’s start with the se w i ng machine incidents. The evidence that Colwell ran his hand throug h a sewing machine comes from

a 2003 medical consultation report

. 5 I t reads: “P[ atient] has

run his h a n d t h r oug h sewing machine twice this past 10 months.” Colwell sewed mattresses in a prison workshop

5 A s th e m aj o rity states, Co lw ell’ s m ed ical reco rd s f iled u n d e r s e a l

rem ain u n d er s eal e x c e p t a s to f acts d iscu s sed h erein

, in th e m aj o rity ’ s

o p in io n , o r in

th e p arties’ b rief

s. Maj . Op . at 6 n .1

.C O L W E L L V

. B A

N N I S T E R 33

from 2000 to 2009, ex cept for 2004. At no time in his deposition (or in his c omplaint) d id Colwell mention running his hands throug h a s e wing machine. I n his deposition, Colwell g enerally complained that he “was having t rouble with [ his] sewing ability

, ” and could not continue “working in a mattress factory where [ he was] required to do very fine

wor k

. ” W h en the mattress operation w as moved to another correctio n a l f

acility

, Colwell decided to quit and leave that facility

. “W ell, my w ork was b eing adversely a ff e c t ed, on top of I didn’t like it there. So I ex ercised my rig ht to be transferred.” I f there was a p ro b lem in 2003, it was not o f sufficient concern t o Colwell to seek medical attention. Colwell refused h is annual medical ex a minations for the nex t five y ears, f

r o m 2004 to 2008, because he “[ didn’t] like the medical department i n g eneral.” There is nothing in Colwell’s a lleg ations or deposition that would connect these incidents to his cataract.

The evidence of Colwell “splitting open his forehead” does not tell us much either. Colwell testified that in 2011 he

was ben d i n g o ver and “split [ his] ey e open, [ his] left

e y e b row, on a cement block.” Of course, a s h e acknowledg ed, the left side w a s “ o n the side that [ he could]

s e e , ” but he thoug ht “something [ wa] s out of whack.” H e reported the incident to an officer, who told him to report to the medical unit. Colwell thoug ht the medical unit was g oing
to charg e him f

or the visit, so he refused. B y the time he g ot to the medical unit, within ten minutes of the incident, he was not bleeding :

Q: Did y ou require any

stitches?

A: No.C O L W E L L V

. B A

N N I S T E R 34

Q: Did y ou g e t a B a nd-Aid?

A: No.

The majority also relies on the f act that Colwell reg ularly hits his head on the upper bunk. Colwell, by the way , is 6' 6" and weig hs 2 70 lbs. And a s Colwell recog niz es, he has “a lower bunk and the u

pper bunk is probably four a nd a half feet hig h.” There are “alway s scratches and brea k s on the back o f [ his] head,” but he has n e v e r required treatment for bumping h i s h ead. T his is unfortunate, but ask any tallerthan-averag e person who has had to sit on a bus or an airplane

o r c r a m i n to desks o r beds that are too short and they will testify that these are the natural consequence s of being tall. Additionally

, Colwell himself cand idly recog niz ed that it mig ht be a consequence of g etting older: “I don’t know how much o f it is just being senile and o l d

, y ou know, but it happens.”

F inally

, the majority points to the claim that Colwell bumps into other inmates a nd that this has resulted in at least
two fig hts. H ere is what Colwell said: “I have had two fistfig hts and numerous occasions whe r e I have had to apolog iz e.” However, Colwell h as n o disciplinary history o f fig hting

. As Colwell e x plains, “ [ t h e y ] ’ re in very crowded
spaces. T here’s a limited amount of area that [ they ] can walk, that [ they ] can live.” One of the incidents was in 2007

or 2008, and Colwell and his a n t ag onist each threw a punch and then eng ag ed in some shoving

. Ne i t h e r suffered any injuries, and the incident was not reporte d

. T h e second incident o ccurred in 2009. Colwell walked into a n o t h er prisoner on his rig ht side. The man later confronted Colwell and, b e cause Colwell was big g er a nd strong er, he just “ took

care of it,” later apolog iz ing to the man. Ag ain, there were noC O L W E L L V

. B A

N N I S T E R 35

injuries and no r e p o r t s filed. Aside from these two fig hts, Colwell testified that he “probably run[ s] into somebody two

or three times a month, and probably one in five or one in six requires an ex p lanation.” He attribu t es t h e se run-ins to his
cataract because they al w a y s o c cur o n his r ig ht side. B y Colwell’s own estimate, he has to apolog iz e to someone he

runs into about once every other month. Given the confined
space in which p r i s o n s operate and Colwell’s phy sical siz e , having to apolog iz e once every two months for b u mping into
to someone doesn’t seem the stuff of c r u el and unusual punishment.

I n other respects, Colwell’s activities demonstrate that he is relatively unrestricted i n his life. H e testified that he meditates and participates in relig ious services. He p l a y s cards and attends a computer class. He describes himself as “a voracious reader. [ He] reads a book a day very often when [ he’s] doing well.” He say s that he ex ercises reg ularly b y walking

, but cannot participate in sports b e c a use he can no long er shoot baskets, play pool, or catch a baseball.

Taken tog ether, these incidents do n ot amount to the kind of pain and suffering necessary to challeng e the c onditions o f his confinement under the Eig h th Amendment.

I I I

B ec a u s e Colwell does not suffer a ny phy sical pain from his cataract and does n ot suffer g enerally from his monocular blindness, the majority ’s decision is only suppor table if monocular blindness is per se a serious medical need. A l thoug h the majority does not say as much, that is t h e undeniable take-away from its o pinion, and prisons within the circuit will refuse elective cataract surg ery at their peril. SeeC O L W E L L V

. B A

N N I S T E R 36

Maj. Op. at 1 1 (“[ M] onocular blindness is a serous medical need.”); id. at 14 ( “Colwell continues to suffer bl i n dness in his rig h t ey e, which is h arm in and o f itself, along with all o f the other harms and dang ers that flow from that.”).

L et there b e n o q uestion that I believe that monocular blindness is a serious condition. A nd if I had monocular blindness and the means to cure it, I would surely do so. B ut if the bare fact of b eing b lind in on e e y e m a y be considered

a disability

, 6 it is not c rippling

. There a r e many Americans who have monocular vision and are perfectly functional. They hold jobs, drive c ars, 7 play sports, watch movies, a nd

6 T he m aj o rity ad v ises t

h at t h e Su p rem e Co u rt co n sid ers m o n o cu l a r

v isio n to b e a d isab i lity u n d er th e A m erican s w i th Disab ilities A ct. Maj

. Op

. at 1 2 n .3 (citin g Alb ertso n s, In c. v. Kirkin g b u rg , 5 2 7 U.S. 5 5 5
, 5 6 6

– 6 7 (1 9 9 9 ) ) ; see a lso EEOC v. Un ited Pa rcel S erv., In c. , 4 24 F.3 d 1 0 6 0 , 1 0 6 4

– 65 (9 th

Cir. 2 0 0 5 ).

T h e m aj o rity ’ s ref

eren ce to t

h e A DA is o d d b ecau se th e A DA serv es

a v ery d if

f eren t p u rp o s e f

ro m th e Eig h th A m en d m en t. T h e A D A is a b ro ad law d esig n ed “ to p ro v id e a clear a n d co m p reh en siv e n atio n al

m an d at e fo r th e elim i n atio n o f d iscrim in atio n ag ain st in d iv id u als w i th d i s ab ilities.” 4 2 U.S.C. § 1 2 10 1 (b )(1 ). In ad d itio n t o elim in atin g d iscrim in atio n , th e A D A seek s to i m p ro v e q u a l i t y o f lif

e f o r d isab led in d iv i d u als b y im

p ro v in g accessib ility

. S

ee Ch a p ma n v. P i e r 1 I

mp s. ( U.S .) In c. , 6 3 1 F.3 d 9 3 9
, 94 5 (9 th Cir. 20 1 1) (“ [T ]h e A DA p ro scrib es

m o re su b tle f o rm s o f d iscrim in atio n

. . . th at in terf ere w i th d i s a b l ed in d iv i d u als’ f

u ll an d eq u al en

j oy m en t o f p laces o f p u

b lic a c c o m

m od atio n .” (in t ern al q u o tatio n m ark s o m i tted )). B y co n trast, th e Eig h th A m en d m en t i s n o t “ an asp iratio n to w ard an id eal en v i ro n m en t f o r lo n g

- term

co n f in em en t.” Rh o d

es , 4 5 2 U.S. at 3 4 9

.

7 T h e v ast m aj o rity o f states g ran t d riv ers lice n ses to in d iv id u als w i th

m o n o cu lar v isio n

. S

ee P au l G. Stein k

u ller, MD, Leg a l Vi s i o n Req u iremen ts fo r Drivers in th e Un ited Sta tes , 1 2 A m

. Med

. A ss’ n J. of Eth ics 9 1 1
, 9 38 (Dec. 2 0 1 0 ), a va ila b l e a t v irtu alm en to r.am aa s s n

. o r g / 2 0 1 0 / 1 2/p d f

/h law 1

- 1 0 12 .p d f

. Fu rth erm o r e , a s t

u d y o f i n d i v i d

u a l sC O L W E L L V

. B A

N N I S T E R 37

move among the binocular population without us even being aware of their condition. 8

This same q

uestion, w hether a c ataract resulting in partial

or total blindness constitutes a serious medical condition, has

vex ed the courts that have considered it. The majority cites
to several courts who have found that cataracts are a serious medical need and that the p r isons are oblig ated to treat it. See Maj. Op. a t 11–13 & n.3. The record is more mix e d than the majority a dmits. As the majo r i ty points out, a number o f courts, including district c o u r t s in our circuit (larg ely in Nevada), have held t h at cataracts are a “serious medical condition” for purposes of the Eig hth Amendment. See
, e.g. , Cobbs v. Pramstal ler

, 475 F

. A pp’x 575 (6th Cir. 2 012); Michaud v. B annist e r , N o

. 2 : 0 8

- C V

- 0 1 3 7 1

- MMD-PAL
, 2012 W L 6720602 at *4–6 (D. Nev. De c

. 26, 2012); Morris v

. Corr. Med. Servs.
, No. 2:07-CV-10578, 2012 W L 5874477
at *3 (E.D. Mich. Nov. 20, 2012) (“[ A ] l a y p e rson would easily recog niz e the n ecessity for a do c t or to e x tract a cataract.”); Layton v. Bannister
, No. 3:10 -CV-00443-L RHW GC, 2 012 W L 6 969758 at *6 (D. Nev. Sept. 28, 201 2 )

w h o su f f ered su d d en m o n o cu lar b lin d n ess ad j u sted to d riv i n g , w ork in g , recreatio n , h o m e activ ities, an d w alk in g w ith in o n e m o n t h o f th e su dd en lo ss. J o hn V. L in

b erg , M.D., et al., Reco very After Lo ss of a n Eye
, 3 O p h th alm ic P lastic & Reco n stru ctiv e Su rg ery , 1 3 5
, 1 3 5

– 3 8 (1 9 8 8 ). O f th o se stu d ied

, 9 3 % w ere f u lly ad j u sted w ith in a y ear. Id

. I n a s tu d y of 1 2 5 m on o cu l ar p atien ts, 8 5 o u t o f 1 2 5 said t h a t l o s s o f v isio n h ad n o t ch an g ed th eir liv es in

an y p erm an en t w ay

. Id

.

8 A list of w ell k

n o w n m o n o cu lar p erso n s m ig h t in clu d e lead ers su ch as Mo sh e Dy an , T h eo d o re Ro osev elt, an d Mo Ud all; w riters su ch as J am es J oy ce, W illiam Sh irer, an d A l ice W alk er; an d en tertain ers su ch as San d y D u n c an , Peter Falk

, Rex Harriso n , C lau d e Rain s , Sam m y Dav is J r., a n d J oh n n y Dep p

. S

ee, e.g

. , L o st E y e, S

uccess After th e Lo ss o

f a n Eye
, w w w .lo stey e.co m

/o n eey ers.h t m

(last v i sited

A u g . 1 , 2 01 4 ).C O L W E L L V

. B A

N N I S T E R 38

( f i n ding that the referral f or surg ery was “ evidence o f a n injury that a reasonable doctor would find i mportant a nd worthy of c omment or treatment” while rely ing on McGuckin ); Hunt v. Mohr

, No. 2:1 1 -C V-00653, 2012 W L 1537294 at * 4 (S.D. Ohio May 1, 2 012) (cataracts constitute

a serious medical n eed); W hite v. Snider

, No. 3:08-C V-252- RCJ (VP C )

, 2 010 W L 331742 (D. Nev. J an. 26, 2 010); Garcia v. Nev. Bd. of Prison Comm’rs
, No. 3 : 06-CV-0118- J CM (VPC), 2008 W L 818981 (D. Nev. Mar. 24, 2008). 9

O n t h e o t h e r h a n d

, a c o m p a r a b l e n u m b e r o f
courts— i n c luding our court—have held that cataracts may not be a serious medical conditi o n. See, e.g. , Hummer v

. Schriro

, 407 F

. A p p ’ x 112, 113 (9th Cir. 2010) (“Hummer failed to p resent evidence showing that the defendant’s denial of cataract su rg ery in his rig ht ey e has caused o r w ill cause f u r ther injury

, or that the defendants knew of other seri o u s pain or medical problems caused by Hu m m er’s cataract”); Thomas v. S

tephens

, No.7:10-CV-00090, 2011 W L 1532150,
at *4 (W .D. Va. Apr. 4, 2011) (“Plaintiff fails to establish that his cataract c onstitutes a serious medic a l n e ed under the Eig hth Amendment b ecause the r ecord d oes not demonstrate

a ‘substantial risk’ of serious h arm or permanent disability .”); Dupuis v. Caskey , No. 4:08CV63-L RA, 2009 W L 3156527,

a t * 4 (S .D. Miss. Sept. 2 8, 2 009) ( finding no deliberate indifference b ecause cataract surg eries a r e considered

9 So m e of th ese cases h av e f acts t h at p resen t a m

u ch stro n g er case f

o r an Eig h th A m en d m en t v io latio n th an Co lw ell’ s. Fo r ex am p le, in Co b b s , th e in m ate’ s treatin g d o cto r ad v ised th at cataract su rg ery w as n ecessary “ to p rev en t s e c o n d ary g lau co m a,” an d th at delay ed cataract rem ov al w ou ld

m ak e su rg ery m ore co m

p licated

. 4 7 5 F. A

p p ’ x at 5 7 8
, 5 8 2

. Sim ilarly

, th e in m ate i n M

ich a u d s u ffe r e d f

ro m a cataract th at cau sed h im sev ere h ead ach es, an d do cto rs ad v ised th at t h e cataract co u ld cau s e g lau co m a or p erm an en t

b lin d n ess. Mich a ud , 2 0 1 2 W L 6 7 20 6 0 2 , at * 1 , 4

.C O L W E L L V

. B A

N N I S T E R 39

elective (citing the American O ptometric Association' s Optometric Clinical P r a ctice Guidelines)); Hurt v. M ahon

, No. 1:09CV958(L O/J F A), 2009 W L 2877001, at * 2 (E.D. V a

. A ug

. 31, 2009) (“[ I ] t is doubtful that a cataract i s a suf f i ciently serious medical need to support a n Eig hth Amendment v iolation.”); W ilson v. Turner
, No. 6 :08-CV06056, 2 009 W L 1634894, at * 6 (W .D. Ark. J une 10, 2 009) (holding that cataract surg ery was neither an emerg e ncy nor

a medical nec e s s i t y ) ; Rylee v. Bureau of Prisons
, No. 8:08- CV -1643-PMD-B HH, 2009 W L 633000 at *4 (D.S.C. Mar. 9, 2009 ) (BOP decision not to secure cataract surg ery until the remaining ey e deteriorated further was not deliberate indifference); W

illiams v. Shelt o n , No. 06-95-KI
, 2008 W L 2789031, at * 3 ( D. Or. J uly 1 6, 2 0 0 8 ) ( d elay in providing
cataract surg ery on second ey e was n o t deliberate indifference); see also Sam o n te v. Bauman
, 264 F

. App’x 634, 635 & n.1 (9th Cir. 2008) (finding t h at delay before conducting cataract surg ery was not deliberat e i ndifference and declining to reach the issue whether there was “a serious medical need”); United States v. Schuett

, No. 2:-L O-CR-118- RL H-RJ J
, 201 4 W L 289433 (D. Nev. J an. 27, 2 014) (declining to order the early release of the inmate so he could have cataract surg ery in both e y e s ) ; Phillips v. Lindamood

, No. 3 :09-1187, 2009 W L 5205379 (M.D. Tenn. Dec. 23, 2009) ( doctor who declined to perform cataract surg ery on a second ey e was not deliberately indifferent); E s pinosa v

. Saladin

, No. 1:08-CV-736, 2 009 W L 3102483, at *3 ( W

. D

. Mich. Sept. 23, 2009) (denial of c a taract surg ery where inmate had a cceptable vision in his remaining ey e w a s not deliberate indifference); Stevenson v. Pramstaller

, 2009 W L 804748 (E.D. Mich. Mar. 24, 2009).

W h at thes e cases demonstrate is that the question o f whether a cataract constitutes a “serious medical condition”C O L W E L L V

. B A

N N I S T E R 40

has been a diffic u lt and c ontroversial one. The courts have divided, and they h a v e ex amined each case on its own facts. No court has taken the step that ours takes today o f pronouncing that a cataract resulting in monocular blindness is, categ orically

, a serious medical condition that the states must corre c t under the Eig hth Amendment. These cases, from courts in the F ourth, F ifth, Six th, Eig hth, a nd Ninth Circuits also tell us something a bout how the nation’s prisons have addressed the problem: Nev a d a i s not alone in its decision to address cataracts on a case-by -case basis, r a t h er than categ o rically

. That should also tell us, as I ex plain in the

nex t section, that our c o urt has g o tten well in front of our “evolving standards of decency

. ” R h o d es , 452 U.S. at 346 (internal quotation marks omitted); see also id. (“[ N] o static ‘test’ c an ex ist by which courts determine whether conditions of confinement are cruel and unusual.”).

I V

“Deliberate indifference is a hig h leg a l s t a n d a r d

, ” Toguchi

v. Chung

, 391 F

. 3d 1 051, 1060 ( 9th C ir. 2004), that is only “satisfied by showing (a) a purposeful act or fa i lure to respond to a prisoner’s pain o r possible m e d i c a l need a nd (b) harm caused by the indifference.” J e tt , 439 F .3d at 1096. Deliberate indifference d o e s not include failure to treat a condition that is not serious. See Estelle

, 429 U.S. at 104–05;

see also Farmer
, 511 U.S. at 837 ( Deliberate i ndifference requires that a p r i s on official “knows of and disreg a rds an excessive risk to inmate h ealth or safety .” (emphasis a dded)); Peralta

, 744 F .3d at 1081–82. I t also does n ot include “mere
neg lig ence in diag n osing or treating a medical condition,” Hutchinson v. United S t a t e s , 838 F .2d 390, 394 (9th Cir. 1988), or a differenc e o f medical o pinion, Jackson v

. McIntosh

, 90 F

. 3d 3 30, 332 (9t h Cir. 1996). Nor doesC O L W E L L V

. B A

N N I S T E R 41

deliberate indifference include a “mere d e l a y o f surg ery

. . . unless the d e nial was harmful.” Shapley v. Nev. Bd. of State Prison Comm’rs
, 766 F .2d 404, 407 (9th Cir. 1985). I n sum, “the offending conduct m u s t be wanton .” W ilson

, 501 U.S. at 302.

Colwell cannot satisfy either of these conditions. He does
not “alleg e a cts or omissions sufficiently harmful to evidence deliberate in d i f

ference to serious medical needs,” Estelle

, 429 U.S. a t 106, and he cannot show th a t t he d enial o f
cataract surg er y c a u sed any harm. N DOC’s decision was a reasonable one.

A

The majority holds that “the blanke t, categ orical denial” of cataract surg ery solely on the basis o f an administrative policy is “the paradig m of deliberate indifference.” Maj. Op. 3–4. I ag ree with the majority that “ blanket policies” may run afoul o f the Eig hth Amendment. E ven the State “ag rees that

a medical policy that is divorced fro m an inmate-patient’s medical needs would be constitutiona lly defective.” B ut h ere, the majority ’s d escri ption of Medical Directive 106 is

erroneous because it i s n o t a blanket “ one g ood ey e policy

. ”

Althoug h Co l w e ll and the majority repeatedly refer to Medical D irective 1 06 as a “ o ne g ood ey e policy ,” that phrase appears nowhere in the Directive or in the official responses that Colwell received. The e vidence f or such an e x p l i c it policy is all hearsay

. I t was Colwell who first complained that doctors and a nurse told h im there is a “one g ood ey e policy .” That claim is belied by the record, both the official published policy and the way in which NDOC trea t e d Colwell’s request. N D O C has p ublished protocols forC O L W E L L V

. B A

N N I S T E R 42

medical conditions and a directive spec i fically for c ataracts. Medical Directive 106, entitled “Cataracts” states as follows: “I t is the policy of the Department that inmates with cataracts

w ill be evaluated on a case b y case basis, taking i n t o consideration their ability to function within their current living environment.” 1 0 W ith respect to “[ s] urg ical removal o f cataracts,” Medical Directive 106 provides that “[ p ]atients with visual impairment incompatible with t h e a bility to perform the required tasks of daily living in their current living environment may be c o n s idered for removal of a cataract.”

Moreo v er, Colwell’s ex perience demonstrates that N e v a d a has not categ orically refused Colwell treatment. I n fact, Nevada provid e d C olwell with corrective cataract surg ery on his left e y e in 2001. I n response to his g rievances filed in 2010 (the latest for which we have a record), he was denied his request for surg e ry at the informal level of r eview because h is remaining ey e was “ corrected to 20/20 vision,” which p u t any surg ery in a “non-essential c a t e go r y

. ” At the first level of review, N DOC repeated that his surg ery was “at present non-essential. Your one e y e is corrected to 20/20.” At the second, and final level of review, NDOC stated that “[ i] n almost [ all] cases cataract surg e r y is not an emerg ency

. You should be evaluated periodically to determine the deg r ee of impairment caused by y our cataract with r e ga r d to y our ability to p erform the activities required in y our current living

10 Iro n ically

, Med ical Directiv e 1 0 6 is q u ite co n sisten t w ith M cGu ckin ’s altern ativ e d escrip tio n o f a serio u s m e d i c a l co n d itio n as “ a m ed i cal

co n d itio n th at sig n if

i can tly af

f ects an in d iv i d u al’ s d aily activ i ties.” McGu ckin

, 9 7 4 F.2 d at 1 0 6 0

. T h e m aj o rity

, o f co u rse, m ak es n o claim th at Co lw ell’ s co n d itio n

sig n if ican tly af f ects h is d aily

activ ities.C O L W E L L V

. B A

N N I S T E R 43

situation. B a sed on the practitioner[ ’ ] s evaluation the request can be re-considered.”

Case-by -case policies such as Nevada’s are f ully

con sistent with accepted medical and prison practices. I ndeed, Nevada’s policy appears to be more g enerous than the comparable federal policies. The F ederal B u r eau of Prison’s “Opthalmolog y Guidance” pro v i d e s that “emergent or u rgent ophthalmolog ic surg eries should never b e delay ed” a n d that “all elect ive ophthalmolog ic surg ery , including surg ery for cataracts” must be ap proved by the Reg ional Medical Director. F ederal B ureau of Priso ns, Ophthalmology G u i d a n c e 5 ( F e b

. 2 0 0 8 )

, a

v ailable at www.bop.g o v /resources/ pdfs/opthamolog y

_g uidance_2008.pdf. The cri teria for that decision are:

C a t a r a c t S u r g e r y : T h e r e m u s t b e documentation of a best-corrected visual acuity of less tha n 2 0 / 60 in both ey es with
current (less than six m o nths old) refraction. Seco n d ey e surg ery requires a documented, best-corrected visual acuity of 20/100 or less.

Id. B OP will consider special circumstance s , s u c h as the need for “ re t inal visualiz ation (i.e., not for improvement in

v ision).” Id. at 6. 1 1 Similarly

, the United States Marsh a l s

11 T h ese g u id elin es w e r e at issu e in Rylee v. Bu rea u o f Priso n s , 2 0 0 9 W L 6 3 3 0 0 0

. In Rylee

, th e in m ate h ad a cataract in h is rig h t ey e t h at w as rap id ly p ro g ressin g

. Id

. at * 2. His o p to m etrists reco m m e n d e d t h at h e receiv e cataract su

rg ery , b u t Ry lee d id n ot co m e w ith in B OP ’ s g u id elin es b ecau se h is g o od lef

t ey e h ad v isu al acu i ty

o f 2 0 /6 0 o r b etter. Id

. Ry l ee

w as n o t i n p ain

, an d th e d o cto rs stated t h at d elay in g an y su

rg ery w o u l d n o t

cau se an y irrep arab le d am ag e to th e ey e. Id

. at * 4

. T h ey also stated th at

w h en Ry lee’ s v isio n w as less th an 2 0 /6 0 f or six m o n t

h s “ an d h is co n d itio nC O L W E L L V

. B A

N N I S T E R 44

Service c lassifies cataract surg ery a s elective and a “nona u t h o r i ze d medical intervention/procedure.” Catara c t s u r g e r y will not b e authoriz ed p ay ment u n l e s s o rdered by a court o r pre-authoriz e d by the Office of I nterag ency Medical Services. U

. S. Marshals Service, Prisoner Health Care Standards 2
, 13, 16 (Nov. 2007), a vail a b l e at www.usmarshals.g ov/foia/ Reading

_ Room_I nfo r m a t i o n / P u b l i c a t i o n s / p r i s oner_health_ care_standards.pdf

The states within our circuit have similar p olicies. W a shing ton, for e x ample, h as a policy quite close to the B OP’s. I t authoriz es care f or an inmate’s “[ w] orst one ey e if both ey es have best c o rrected [ visual acuity ] < 20/60” o r “[ e] ither or both ey es if inadequate visualiz ation of retina for screening

, manag ement , o r m o n i t o ring of another disease, e.g

. diabetic retinopathy .” W ashing ton Dep’t of Corrs., Offender Health Plan 17. L ike Nevada, Ore go n provides that the
t r e atment of cataracts is classified as “[ m] edically [ a] cceptable but not [ m] edically [ n] ecessary ” a n d t hat
t r e a t m e n t “ [w ] ill be authoriz ed on an individual-by -in d i v i d u a l basis or a p r oblem-by -problem basis.” T h e factors O reg on will consider include “[ w] hether the surg ery /procedure could be or co uld not be reasonably delay ed without causing a sig nificant prog ression, c omplication, or deterioration of the condition,” the “ [ m ] edical necessity – the overall morbidity and mortality of the condition i f l eft untreated,” and the “[ p] ain [ c] omplaints/[ p] a in [ b] e h a viors.” Oreg on Dep’t o f

in terf eres w ith h is ac t i vities o f d aily liv in g , Mr. Ry lee [w o u ld ] b e

co n sid ered f

o r cataract su

rg ery .” Id

. T h e d istrict co u rt g ran ted j u dg m en t f o r th e d efe n d an ts b ecau s e “ t h e reco rd

, in n o w ay , ref lect[ed ] th at Def en d an ts ex h ib ited d elib erate in d i f f eren ce to P lain tif

f ’ s co n d itio n Def en d an ts’ d ecisio n to ad h ere to f ed eral p riso n g u id elin es rath er th an f o llo w t h e o p to m etrist’ s reco m

m en d atio n o f cataract su

rg ery co n stitu

t e[d ] a d if f eren ce o f m ed ical o p in io n .” Id

.C O L W E L L V

. B A

N N I S T E R 45

Corrs., Health Servs. Section Policy and P r o c e dure #P-A02.1.B .3.C). A laska likewise desc r i b es corneal transplants for cataracts as “[ m] edically [ a] cceptable but not [ m] edically [ n] ecessary .” Alaska Dep’t of Corrs., Prisoner Health Plan 7 (J une 26, 2002). 1 2 Califo r nia does not mention cataracts specifically but has a g eneral p olicy of “only provi d [ i n g ] med i c a l s ervices for inmates, which are based on medical necessity .” Cal. Code Reg s. tit. 15, § 33 5 0 ( a ) (2014). “Medically [ n] ecessary means he alth care services that

are determined by the attending phy sician t o be reasonable and necessary to protect life, prevent s ig nificant illness or disability

, or alleviate seve r e p a in.” Id

. at tit. 15, § 3350(b)(1). “Sig nificant illness a nd disability ” means “any medical cond i t i o n that causes or may cause if left untreated

a severe limitation of function or ability to perform the daily activities of life or that may cause p remature death.” Id

. at tit. 15, § 3350(b)(5). 1 3

12 A lask a’ s g en eral p o l icy p ro v id es th at p ri s o n ers h av e “ th e rig h t to receiv e essen t ial h ealth care serv ices.” T h ese s e r v ices in clu de m ed i cal

serv ices w

h en a h ealth care p ro v i d er co n clu d es th at (1 ) th e priso n er’ s sy m p to m s in d icate “ a serio u s d isease o r in j u ry ” (2 )th at “ treatm en t co u ld

cu re o r su b stan tially

allev iate” an d (3 ) th ere is eith er “ p oten tial f o r h arm if treatm en t is d elay o r d en ied ” or “ [s]erv i ces are n eed ed to allev iate p ain

an d su f f erin g .” A lask a Dep ’ t o f Co rrs., Po licies a n d Pro ced u res 8 0 7 .0 2
, VII.B .1 (J u

n e 1 8 , 2 00 8 ).

13 I h av e n o t been a b l e to lo cate ex act ru les f o r Haw aii, Id ah o an d Mo n tan a. Id ah o h as a g en eral ru le th at “ [a]n y ex trao rd in ary t reatm en t

s ha l l b e ap p ro v ed b y th e h ealth au th o rity p rio r to treatm en t.” Id a h o A d m in

. Co d e 0 6 .0 1 .0 1 .3 0 2 .0 5 .c (2 0 1 4 ). Mo n tan a h as d if f eren t ap p ro ach :

“ A l l resid en ts [at co m

m u n i ty co rrectio n al cen ters] sh all p ay f o r th eir o w

n

. . . m ed ical an d d en tal ex p en ses.” Mo n t. A dm in

. R. 2 0 .7 .2 0 4 (1 ) (1 9 8 2 ). Sim ilarly , in m ates in carcerated Haw aii are resp o n sib l e f o r a m ed i cal co

p ay m en t fo r m an y ty

p es o f treatm en t, an d m u st p ay th e f

u ll co st of electiv e p ro ced u res. H aw aii Dep ’ t o f P u b l ic Saf ety , P o licy No

. COR.1 0 .1 A .1 3 (2 0 1 0 ).C O L W E L L V

. B A

N N I S T E R 46

Colwell’s case evidences the fact that ND O C makes individualiz ed, c ase-by -case assessments, as required b y Medical Directive 106, because Colwell received c ataract removal surg ery on his left ey e in 20 0 0 despite the fact that he had v ision in both e y es. Nevada’s policy

, 1 4 whi c h is consistent with that of other jurisdictions, both federal a nd state, is not a blanket “one g o od ey e” policy

.

B

I f NDOC does not have a policy of not treating c ataracts, then we need to consider the fa ct s o f C olwell’s case. I n Estelle , the Supreme Court held that “a p risoner must alleg e acts or omissions sufficiently harmful to evidence deliberate indifference.” 429 U.S. at 106. W e have held that deliberate indifference requires a showin g that failure to treat an inmate’s condition “ could result in further sig nificant injury

or the unnecessary and wanton inflict i o n o f pain.” Jett
, 439 F .3d at 1096 (internal quotation marks omitted).

J udg ed by that standard, prison officials have not b e e n deliberately indifferent to Colwe l l’s condition. Colwell has been blind in his rig ht ey e since 2002, and his condition has
not worsened since then. During the time that he had the cataract, Colwell declined medical treatment—that is, he decided to live with the condition—for five y e a r s

. I t is undisputed that Colwell’s cataract is n ot painful and that the
cataract h as not—and will not—cause irreversible damag e

. His monocular v ision c an b e corrected b y s u r g ery in the

14 Nev ad a u rg es u s to ad o pt a tes t fo r “ o v erall v isu al acu ity ” to d eterm in e w

h o h as a “ serio u s m ed ical n eed ” an d is en t itled t o c a t a r a c t

su rg ery

. T h at stan d ard

, alth o u g h n o t articu lated in Med ical Directiv e 1 0 6
, is clo sest to th e B OP ’ s an d th e State o f W ash i n g to n ’ s g u id elin es.C O L W E L L V

. B A

N N I S T E R 47

future, and NDOC has said that it will revisit the question o f

s u r g ery should any

thing chang e in Colwell’s condition. 1 5 Alternatively

, the majority cites “the other harms and dang ers that f low from” monocular blindness as evidence o f deliberate indifference. Maj. Op. at 1 4. B ut a s I d iscussed above, these harms and dang ers cannot support a find i ng o f deliberate indifference.

To the ex tent that there are future dang ers tha t may be caused by monocular blindness, there is no evidence that such unidentified dang ers pose an “unreasonable risk of serious damag e to his future h ealth.” Helling

, 509 U.S. at 3 5. Given Colwell’s h istory

, it is probable t hat these future “ dang ers” include unfortunate, b ut minimally harmful, cuts and scrapes. Such p otential injuries are n ot enoug h to show that NDOC’s denial of surg ery poses an u n r easonable risk of serious damag e to Colwell’s future health

. According ly

, I would hold that Colwell c a

nn o t prove “harm caused b y the indifference,” as required by Jett

. See 439 F .3d at 1096.

NDOC, like all prisons, must make difficult decisions about inmate medical care and control c osts w h erever pos s i b le, consistent w ith the Eig hth Amendment. See Peralta

, 744 F .3d at 1084 (“A prison medica l official w ho fails to provide needed treatment b e c ause he lacks the
necessary resources c an hardly b e said to have intended to punish the inmate.”). I a ssume that NDOC woul d p re fe r to treat C o l w ell’s cataract. B ut, g iven his individual circumstances, NDOC made a reasonable medical decision

15 T h e m aj o rity s tates th at m o n o c u l ar blin d n ess “ is h arm in an d of itself .” Maj

. Op

. at 1 4

. T h is reaso n in g beg s th e q u estio n

. W e r e th e

m aj o rity ’ s reaso n in g co rrect, a n y i n j u ry o r co n d itio n w o u ld qu alif y b ecau se th e in

j u ry w o u l d b e h arm

in an d o f itself

.C O L W E L L V

. B A

N N I S T E R 48

that Colwell would receive reg ular evaluations to monitor his condition, and if it worsens, would c onsider a new medical request. Although N DOC’s administrators and phy sicians
may h ave a d ifferent p e r spective f rom that o f Colwell’s treating phy sicians, monitoring a cataract, rather than performing surg ery , is a leg itimate medical decision

. S e e Am. O ptometric Ass’n, Care of the A dult Patient with Cataract 17 (2010), available a t www.aoa.o r g/documents/ optometrists/CPG-8.pdf (“I f the patient has few f u n ctional limitations a s a result of the cataract and surge r y is not indicated, i t m a y be appropriate to follow the patient at 4 to 12-month intervals to evaluate ey e health and vision.”). A nd such d i f f erences of opinion do n ot evidence deliberate indifference. Jackson

, 90 F .3d at 332 ( “[ W ] here a defendant has based his actions o n a medical judg ment that either of two alternative courses of treatment wo u l d be medically acceptable under the c ircumstances, plaintiff ha s f a iled to

s h o w deliberate indifference, as a matter of law.”); see also Cobbs

, 475 F

. App’x at 582–83 (finding t h a t a d irective to monitor an inmate’s c ataract closely w as “ t h e product o f

c o nsidered medical judg ment”); S amonte , 264 F

. App’x at 636 (holding that refusal to authoriz e c ataract surg ery after a doctor recommended su rge r y was a difference of medical opinion). I n deed, t his is not a case where “ an individual sat idly by as another human being was s eriously injured,” McGuckin

, 974 F

. 2d at 1 06 0
, b ecause NDOC provided Colwell with reg u lar ey e ca r e

. As the majority states, Colwell received cataract surg e ry on his left e y e , y e arly phy sicals, and consultations with an opthamolog ist and an optometrist. S

ee Maj. O p. at 5 –7. Such routine ey e care “belies the notion that [ NDOC] acted wi th deliberate indifference.” Cobbs

, 475 F

. A pp’x at 583; see also Estelle

, 429 U.S. at 107 (finding inmate’s claim n oncog niz able where he rece i v ed medical treatment on seventeen occasions.);C O L W E L L V

. B A

N N I S T E R 49

Hummer
, 407 F

. A pp’x at 1 1 3 ( u pholding summary judg ment where inmate “failed t o present evidence showing that the defendants’ denial of cataract s urg ery in his rig ht ey e has caused or will cause further injury ”). 1 6

NDOC’s treatment was reasonable. Colwell is not in any pain a nd he is able to e ng ag e in many activities. The alternative course of treatment that NDOC s el e cted—wait and see—did n ot cause life-threatening injury

. Be c a u s e o f Colwell’s functionality

, NDOC ’s decision not to authoriz e cataract removal surg ery wa s consistent with Medical Dire c t i v e 106. I nstead, this case is most like S amonte a nd Layton
, w here this court a nd the D istrict of Nevada found that NDOC’s r efusal to authoriz e cataract removal surg ery did not violate the Eig hth Amendment. See Samonte , 264 F . App’x
at 636 (“Dr. B auman’s refusal to authoriz e cataract surg ery after another doctor determined t h a t such surg e ry was an option was a d ifference of medical opinion, i n s u fficient b y

16 T h e pan el cit e s S

n o w , 6 8 1 F.3 d 9 7 8
, as an ex am p le w h ere p riso n

o f f icials r e j e c ted th e reco m

m en d atio n s o f o u tsid e sp ecialists an d

u n reaso n ab ly d en ied th e in m ate su rg e r y fo r tw o y ears. Maj

. Op

. at 1 5

. T h e m aj o rity ’ s relian ce o n Sn o w is m isp laced

. In S n o w , th e i n m a t e w as in “ ex cru ciatin g an d u n

b earab le p ain .” 6 8 1 F.3 d at 9 8 3. Sn o w ’ s h i p s h ad d eg en erated to t

h e p o in t w

h ere h e w as b arely ab le to w alk

, co u ld n o t k n eel, an d req u ired assistan ce w ith ev ery d ay activ ities su ch as g ettin g o u t

o f b ed an d p u ttin g o n h is so ck s. Id

. at 98 2 –8 3

. T h e state ev en co n ced ed th at Sn o w h ad a serio u s m ed ical n ee d

. I d

. at 9 8 5

. B u t af

ter Sn o w ’ s treatin g p h y sician s in d icated th at h e n eed ed b i lateral h ip rep l acem en t

su rg ery , NDOC au th o rized o n l y p ain reliev ers an d an ti- i n f lam m ato ries. Id

. at 98 3

. In tu rn , th e m ed icatio n s m ad e S n o w ’ s c r eatin in e lev els sk y ro ck et, cau sin g a p o ten tially lif e- t h reaten in g s itu atio n

. Id

. at 9 8 4

. W e

o b serv ed th at th e in m ate’ s m ed ical co n d itio n in terf ered w ith h is ab ility to fu n c tio n

. Id

. A

n d w e q u estio n ed w

h eth er it w as a reaso n ab le m e d i c a l d ecisio n t o ad o p t a m ed i catio n o n ly ap pro ach

, w

h ere d o in g so lo n g

- term

cau sed ad ditio n al serio u s m ed ical p ro blem s. Id

. at 9 8 8

.C O L W E L L V

. B A

N N I S T E R 50

itself to r aise a triable issue of deliberate indifference.”) (inter n al quotation marks omitted); Layton
, 2012 W L 6969758 at *10 (finding no deliberate indiffere n ce where “[ d] efendant’s decision to deny L a y ton’s request f

or cataract surg ery on the g rounds that L a y ton’s c ondition did not meet t h e prison’s medical c r iteria amounts to a difference of opinion reg arding the appropriate course of treatment.”).

F inally

, NDOC c ould n ot have been deliberately indifferent to Colwell’s serious m e d i c al needs if it did not know why Colwell required cataract r e moval surg ery o r whether surg e ry was necessary f o r C o lwell to complete the required activities of daily liv i n g. Farmer
, 5 11 U .S. at 837–38 (clarify

ing that deliberate indifference is comparable
to a reckless mens rea in that recklessness is the disreg a rd o f a known risk of harm). His annual phy sicals—at least those
to which Colwell consented—ask th e phy sician to report whether he had any “functional limitation/disability .” There

are no comments in these sections. I n a 2009 Consultation Report, Dr. Scott checked “y es” to the que stion “[ d] oes this condition sig n ificantly affect qualify of life? ”, but he did not

ex p lain how the condition affected Colwell, and he wrote on the front of the report that h e h ad discontinued the report altog ether. I n sum, neither Colwell’s requests n or the discontinued consultation report provided information that put prison officials o n n otice that Colwell’s cataract rendered him unable to perform the required tasks of daily living

.

I would hold that the respondents wer e n o t deliberately indifferent to Colwell’s alleg ed “serious medical n eeds,” because Colwell did n o t mee t t h e difficult leg al burden o f showing “a purposeful act or failure to respond to a prisoner’s pain or possible medical n e ed a n d [ ] harm caused by the indifference.” Jett , 439 F .3d at 1096.C O L W E L L V

. B A

N N I S T E R 51

V

The realities o f an o v ercrowded p rison sy stem force difficult choices about the a p p ropriate treatment for inmates’ medical needs. The g rowing number o f elderly inmates makes this problem all the more difficult because ph y sical and mental f

unctions often decline with ag e. 1 7 B etween 2007 and 2010, the number of prisoners over the ag e of 65 g rew 94 times faster than the g eneral prison population; it is e stimated that one third of prisoners w i l l b e o v er the ag e of 50 b y 2030. 1 8 Nationally

, it costs $16 billion to incarcerate 246,600 elderly inmates. American Civil L iberties Union, The Mass I ncarceration of the Elderly 2 8 ( J u n e 2012), available at h t t p s : / / w w w

. a c l u

. o r g/ f

i l e s / a s s e t s / e l d e r l y

p ri s o n r e p o r t

_ 2 0 1 2 0613_1.pdf. According t o t h e State, in Nevada, elderly inmates constitute 5.8% of the state’s prison population, but they account for 20% of the prison’s annual budg et. 1 9

Cataracts are a particularly common—and cost l y

— problem. I n the g eneral population, 20.5 million Americans

over the ag e o f 40 have cataracts. S e e , C e nters for Disease

17 S ee N ad in e Cu

rran , B l u e Ha irs in th e Big h o u se: Th e Rise in th e Eld erly In ma te Po

p u la tio n , Its Effect o n th e Overcro wd in g Dilmma a n d S o lu tio n s t o C

o r rect It
, 2 6 New

. En g

. J

. o n Crim

. & Civ

. Co n f in em en t 2 2 5
, 2 3 9

– 4 0 (2 00 0 ) (d es c r i b i n g ch an g es cau sed b y ag in g ); T im o th y Cu rtin

, Th e C

o n tin u in g Pro b lem o

f America ’s Ag in g Priso n Po p u l atio n

a n d th e S ea rch fo r a C

o st- E f f e c t ive a n d S

o cia l ly Accep t

a b le Mea n s o

f Ad d ressin g it , 1 5 Eld er L .J . 4 7 3 , 4 8 1 (2 0 0 7 ).

18 Casey N. Ferri, A S tu ck S a fety Va lve: Th e In a d

eq u a cy o f Co mp a ssio n a t e Relea se fo r Eld erly In ma tes , 4 3 Stetso n L

. Rev

. 1 9 7
, 1 9 7

– 9 8 (2 0 1 3 ).

19 Nev ad a h as th e six th larg est eld erly in m ate p o p u latio n

in th e n atio n

. S ee A CL U, Th e Ma ss In ca r cera tio n o f th e Eld erly at Fig u re 2 A

.C O L W E L L V

. B A

N N I S T E R 52

Control and Prevention, Common E y e Disorders . The CDC predicts that 30.1 million America n s w i ll have at least o ne cataract by 2020. Id. On averag e , 3 million Americans have cataract surg ery each y ear at an estimated cost of $3,279 per
surg ery , and in 2013 alone the federal g overnment spent $3.4 billion to treat c atar a c ts throug h Medicare. See Statistic B rain Research I nstitute, Cataract Statistics (verified J uly 28, 2013), www.statisticbrain.com/cataract-statistics.

I f we are g o i n g to assume responsibility for p rescribing the level o f health care for the nation’s inmates

, w e n eed to consider the potential consequences of our choices. A t some point, the states may decide not to t r e a t a g ing prisoners but simply relea s e them. 2 0 T h e former inmates w ill still have whatever serious medical conditions we identified, but some

ma y n o t have the benefit of the state’s care. W h ether a g ing prisone r s w ill have the resources then to attend to their o wn medical needs remains to be seen. See, e

. g

. , Christine M. Hummert, Middle of the R o ad

, 32 J

. L eg al Med. 295, 295–96 (2011) (discussing mentally disabled inmates and ex p ressing

concern that “many of those released from prison are literally standing ‘in the middle of the road’ with nowhere to turn a nd

no o n e to turn to.”); Ronald H. Aday

, J ennifer J

. K rabill, Aging Offend

e r s i n the Criminal J

ustice System
, 7 Marq. Elder’s Advisor, 237, 258 ( “[ I ] nmat e s w h o have spent a g reater portion of their lives incarcerated will need intensive discharg e p lanning and community p lacement orientation.”); Nancy B

. M a h o n , Symposium: Death and Dying Behind

20 Man y j u r i s d ictio n s alread y allo w f o r co m p assio n ate release of
term in ally ill in m ates an d th o se w h o su f f er f ro m ch ro n ic co n d itio n s. S ee B rie A

. W illiam s, M.D., et al., Ba la n cin g Pu nish men t a n d Co mp assio n f o r S erio usly Ill Priso n ers , 1 5 5 (2 ) A n n al s o f In tern al Med icin e 1 2 2

– 2 6 (2 0 1 1).C O L W E L L V

. B A

N N I S T E R 53

B a r s

— Cross-Cutting Themes and Policy Imperatives
, 27 J

. L

. Med. & Ethics 213, 214 (1999) (“[ M] ost priso n s y s t ems do

n o t have the f

unds or the institutional impetus to p rov i d e adequate discharg e planning for ill prisoners.”).

I repeat my self: I f I were t h e w a rden and h ad the
resources, I would treat Colwell’s cataract, ju s t as I would
treat my own cataract, if I had the r esources. And there is the rub—t h e question o f resources. I suspect that for a sig nificant number of Americans afflicted with c ataracts,

su r ge r y is bey ond their means. Yet they function quite normally a mong us, holding jobs and dr iving cars a nd
carry ing on the ordinary activities of life. F or most of them,
cataract surg e ry remains elective s u r gery

. See Cleveland Clinic, Cole Ey e I nstitute, Cataracts and Cataract Surgery
, h t t p : / / m y

. c l e v el a n d c l i n i c

. o r g/ c o l e- e y e / d i s e a s e s-con d i t i o n s / hic-cataracts-cataract-surg ery .aspx (last visited Aug

. 1, 2 014) (“[ T] he patient can decide if and whe n he o r she w ants to have surg ery

(elective surg ery

) .”); American Colleg e of Ey e S u r g e o n s , G u i d e l i n e s f o r C a t a r a c t P r a c t i c e 7

. 2
, h t t p : / / www.aces-abes.org /g uidelines_f

o r

_ c a t a r a c t

_

p r a c t i c e. htm (last visited A ug

. 1, 2014) (“I n most circum s t a n c es, cataract surg ery is e lective.”). I do not understand the Eig hth Amendment to compel Nevada t o p r o vide surg ery f or J ohn Colwell that he mig ht or mig h t not seek for himself if he were free to do so.

VI

“Caution is necessary lest this [ c] ourt become, ‘under the
aeg is of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility

. . . throug hout the [ Circuit] .’” G regg , 428 U.S. at 176 (quoting Powell v. Texas
, 392 U.S. 514, 533 (1968) (o m i s s i o n inC O L W E L L V

. B A

N N I S T E R 54

orig inal); s ee also Hoptowit v. Ray
, 6 82 F .2d 1237, 1246 (9th Cir. 1982) (“The Eig h th Amendment is not a basis for broad prison reform.”). Althoug h I sy mpathiz e with Colwell’s plig ht, he was not denied medical treatment in v iolation of the Eig hth A mendment’s p rohibition ag ainst cruel and u nus ual
p unishment because the respondents were not deliberately indifferent to Colwell’s condition. According ly

, I would affirm the judg ment o f the d istrict court in favor of the respondents.

I respectfully

dissent.