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

M I C H A E L C H E S S , Plaintiff-Appellant
,

v

.

J

. D O V E Y , Director of Corrections; A B U L , Doctor of the CDC; M I D G E M I L L E R , Nurse Practitioner; R O C H E , Medical Doctor of the CDC; J A M E S , Medical Doctor of CDC; D I A L , Medical Doctor of CDC; G. D U D L E Y , Phy sician’s Assistant; A N I T A D A

V I D ; M. F R

E N C H , Nurse Practitioner; S. A B D U R -R A H M A N ; T

. F E L K E R , W arden, Defendants-Appellees

. N o. 12-16516

D.C. No. 2:07-cv-01767- DAD

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Dale A. Droz d, Mag istrate J udg e, Presiding

Arg ued and Submitted October 7, 2014—San F rancisco, California

F iled J une 25, 2015C H E S S V

. D O V E Y

2

B efore: W illiam A. F letcher and Paul J . W atford, Circuit J udg es, and Kevin Thomas Duffy
, District J u dg e. *

Opinion by

J udg e W

. F letcher

SUMMARY * *

P risoner Civil Rights

The panel affirmed the district court’s judg ment, entered following a jury verdict, in an action broug ht under 42 U .S.C. § 1983 b y a California state p risoner who alleg e d that h e was denied constitutionally adequate medical care when members of the prison’s medical staff d enied him e f f e c t ive p ain medication.

On a p p eal, plaintiff asserted that the mag istrate judg e

e r r e d in instructing the jury to g ive deference to pri s o n officials in t h e adoption and ex ecution of policies a nd practices that in their judg ment are needed to preserve discipline and to maintain internal security

.

The panel first held that when a pro se civil litig ant f ails
to object to a jury instruc t i o n , t he court should review the instruction under the o rdinary standard of review, rather than f o r plain error, if the district court and o pposing party we r e

* T h e Ho n o rab le Kev in T h o m as Du f f y , Un ited States District J u d g e f or th e So u t h ern District o f

New Yo rk , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h 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 H E S S V

. D O V E Y 3

fully a w a r e of the potential p roblem with, and would-be objection to, the instruction.

The panel held that the deference instruction shou l d not ordinarily be g iven in Eig hth Amendment medical care cases broug ht by p r isoners. Ra t h e r , a trial judg e in an Eig hth Amendment medical care case should only g ive the deference instructi on if one party ’s presentation of the case plausibly draws a connection between the security -based p olicy o r practice and the medical c are decision at issue. Neither party drew such a connection in this case. Nevertheless, althoug h the panel concluded that the jury instruction was error, it did
not reverse the judg ment because defendants carried their burden o f showing that it was more p robable than not that the jury would have rea c h e d t h e same verdict had it been properly instructed. The error therefore was harmless.

COUNSEL

Stephen Patrick B lake (arg ued), Alex is Coll-Very
, Simpson Thacher & B artlett L L P, Palo Alto, Calif o r nia, for PlaintiffAppellant.

Thomas S. Patterson (arg ued), Supervising Deputy Attorney General, Office of the Califo r n i a Attorney General, San F rancisco, California; Kamala D. Harri s , Attorney General, J onathan L

. W olff, Senior Assistant Attorney General, Diana Esquivel and Vickie P. W hitney , Deputy Attorney s General, Office of the California Attorney General, Sacramento, California, for Defendants-Appellees.C H E S S V

. D O V E Y

4

OP INION

W

. F L ETCHER, Circuit J udg e:

Appellant M i c h a el Chess broug ht this action under 42 U.S.C. § 1983 ag ainst eig ht members of the medical staff
at California’s Hig h Desert State Prison, a lleg ing that they denied him constitutionally adequate medical care w h i le he

was incarcerated there. Chess repres e n t e d himself at trial. Two E ig hth Amendment claims of d eliber a t e indifference
went to trial. As characteriz e d in the final pretrial order, they

were (1) that “defendants denied [ plaintiff] effective p ain medication; specifically
, that defendants purportedly discontinued plaintiff’s use of methadone so lely because a Hig h Desert State P rison policy prohibit[ ed] g eneralpopulation inmates f

rom rec ei v i ng that medication”; a nd (2) that “defendants prescribed p l a i n t i f f m e d i c a tion, including Ty lenol, a spirin, niacin, and Naprosy n, k n o w i ng that those drug s were harmful to his liver.” The jury returned a verdict for defendants on both claims.

Chess makes only one contention on appeal. He contends that the mag istrate judg e erred in g iving a jury instruction that read in pertinent part:

I n determining whether the defendants violated the plaintiff’s rig h ts as alleg ed
, y ou should g ive deference to p rison officials in the adoption and ex e cution of p o licies a nd practices that in their judg ment are needed to
preserve discipline and to maintain int e rnal security

.C H E S S V

. D O V E Y 5

This lang u ag e is taken from a Ninth Circuit model instruction based on Norwood v. Vance
, 591 F .3d 1062 (9th Cir. 2010), and is entitled, “Prisoner’s Claim [ Reg arding ] Conditions o f Confinement/Medical Care.” S ee Ninth Cir. Model Civ. J ury I ns t r

. § 9 .25 (2010 ed.). Chess did not object to the instruction.

W e must first decide the standard of review that g overns Chess’s appellate challeng e to the jury instruction. W e hold that when a p r o s e c ivil litig a nt fails to object to a jury instruction, we will review the instruction under the ordinary standard o f review, rather than for plain error, i f t he district
court and opposing party w ere fully aware of t h e p otential problem with, and w ould-be objection to, the instruction. I n such circumstances, a

n o bjection w o u l d be tantamount to a “pointless formality .” U

nited States v. Payne
, 944 F .2d 1458, 1464 (9th Cir. 1991).

W e must also decide whether the mag istrate judge e rred in g iving the challeng ed instruction. Contrary to the title of the model instruction, we hold that the deference instruction should not ordinarily b e g iven in Eig hth Amendment medical

care c ases broug ht b y prisoners. Rather, the instruction may be g iven only when there is eviden c e t h a t the treatment to which the plaintiff objects was pro v i d e d pursuant to a security -based policy

. That was n ot the c ase here. W e therefore hold that g iving the instruction in this case was

error. However, because the e rror was harmless, we affirm the judg ment of the district court.C H E S S V

. D O V E Y

6

I

. F acts and Procedural B a ckg round

A. The Narcotics Policy

at HDSP

Che s s was imprisoned in California’s Hig h Desert State Prison (“HDSP”) from November 21, 2 006, until F ebruary 8, 2011. A prison policy in effect from sometime in 2006 to sometime in 2 007 ( the precise dates a re no t specified in the record) prohibite d members of HDSP medical staff from prescribing narcotic drug s to prisoners who were a ssig ned to g eneral inmate housing

. Ho we v er , medical staff were allowed to dispense na r cotic drug s to prisoners while in the
p rison’s infirmary
, the Correctional Treatment Center (“CTC”).

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

[ T] he policy was th a t w e had narcotics available for use in the emerg ency room a nd in the infirmary

. The issue was that we could
not control narcotics on the y ards. W e didn’t have a p rocess in place to document the use o f narcotics. And so es s entially the warden decided that h e was n o t g oing to allow
narcot i c s o n the y a

rd at all. I f a patient needed narcot i cs , morphine, those kinds o f th i n g s, then he would have to be admitted to the infirmary and g iven the n a rc o tics in the infi r m a r y or transferred to a different facility that had the ability to take care of him.

And ag ain, the p roblem with the narcotics

was that these were val u able to inmates. IC H E S S V

. D O V E Y 7

mean they h ad a certain cash value depending
upon the n arcotic. I n addition, just inventory ing the narcotics with in the clinic itself was inadeq u a t e

. The pharmacist at the time called the B oard of Pharmacy because he

was not able t o verify who w as using the narcotics that he was bring ing out to the clinic
at one point, and the B o ard of Pharmacy said that by pharmacy reg ulations, he did not have
t o p rovide narcotics if he d idn’t know where they were g oing

.

B

. Evidence at Trial

Chess h ad been transferred from another California state prison to HDSP. He arrived with a variety of ailments, including blindness i n h i s l e ft e y e , h e p a t i t is C, h y pertrig ly ceridemia (elevated levels of trig ly cerides), left varicocele (enlarg ement of the scrotum v ein), g allstones, kidney stones, deg enerative disc disease o f the c ervical spine, b l o o d y urine, and a seiz u re disorder. According to h i s complaint, these ailments caused Che s s t o suffer cramps in his lower ex tremities, sharp a bdominal pain, uncontrolled muscle twitching
, headaches, skin rashes, loss of balance, a nd
constant pain. Prior to his transfer to HDS P
, d o ctors at California State Pris on, Solano, had prescribed Klonopin (a muscle relax ant), methadone, and other medications.

Chess was assig ne d to the g eneral population w hen he arrived at HDSP, but as a new p risoner he was initially placed in t h e C TC. W hile in the CTC, medical staff g ave him “tapering -off” doses of K l o n o p i n u ntil he was fully weaned f r o m the d rug

. Medical staff cut off h is methadone without
any tapering

. Chess was discharg ed from the CTC into t h eC H E S S V

. D O V E Y

8

g eneral prison population on December 26, 2 0 0 6
, a little more than a month after his arrival at the prison.

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

A n d y e s , I did a sk to be put back o n methadone. I was on it for about four or five
y ears before I went up there, and I h a v e docume n t ation that states f rom a liver

s p e c i a list that it is not very harmful to y o u r liver.

They k eep say ing —they kept say ing
y esterday that they couldn’t g ive it to me becau s e they didn’t allow it in g eneral population, but the CTC, the Correct ional Treatment Center where they had me, is n o t a g eneral population. I t’s like a little small hospit a l with sing le rooms. And the whole time I spent there was a nig htmar e

. I t was miserable. And I was in pain the whole time. And like I said, the [ naprox en]
, the aspir i n , multivitamins, I don’t have any idea w hy they
g ave those to me. T h at’s not a pain medication. And neither is folic acid. That’s

a vitamin B

. And they say they treated me for pain, which is not true.

A n d t h e w hole time I spent in there until the time they did put me in g ene r al population, I was in p a i n

. And I don’t know what their real reason was, why they wouldn’tC H E S S V

. D O V E Y 9

treat me f or pain, but they woul dn’t and they didn’t.

After h is placement in g e neral population housing
, Chess repeatedly asked for methadone a n d complained of pain. He filed numerous administrative g rievances and f requently

v isited the defendant d octors, nurses, and phy sicia n a s s i s t a n t s

. The medi c al staff at HDSP never prescribed methadone, despite Chess’s numerous r equests and r eiterated complaints that his prescribed pain medication was inadequate.

Eig ht members of HDSP medical st a f f w ere named a s defendants—four doctors, two nur se practitioners, and two phy sician assistants. They all testified at trial. Chess testified

on his own b ehalf, but did not p ut on the s t a n d any ex pert witness or otherwise provide ex pert e v iden c e t o contradict defendants’ testimony

.

D r

. Roche did not treat Chess directly but over s a w a n d approved h i s treatment. He testified that there were important medical reasons to take Chess o f f of methadone. I n response to a question from the judg e , he ex plained:

I t h i nk my staff at the time evaluated h i m appropriately
, hospitaliz ed him, and we[ a] n ed him off of h is Klonopin. The problem with a combination o f sedative drug s and a drug like methadone is [ that] there are complications to this, side effects to it, includi ng death. Methadone is a very complicated drug to administer and to monitor.

. . . I would have
to say that the c ombination that he was on [ before coming to HDSP] was somewhat inappropriate.C H E S S V

. D O V E Y

10

I n response to a question from Chess, Dr. Roche testified:

There are benefits to almost e v ery medicine
y ou can think of, b ut there are also risks to almost every

medicine y ou can think of.

F or instance, that ty

pe of reasoning was wh y y o u were hospitaliz ed w hen y ou first

came [ to HDSP] and y ou were taken off o f
y our Klonopin and y our methadone because they ’re dang e rous in that environment, a nd particular l y in a patient like y ourself with
y our compliance issues.

Dr. Roche described t h e narcotics policy at HDSP, a s indicated above, but ex cept fo r h is reference to the dang erousness of Klonopin and methadone “in that environment,” he never stated o r eve n s u ggested that the refusal to provide methadone to Chess was based on the policy

.

Dr. L ino Dial provided initial treatment to Chess when he arrived at HDSP. He saw Chess only once, immediately a fter his arrival. According to the final pretrial order, t he following was undisputed:

8. On November 22, 2 006, defendant Dr. Dial

e x a m i n e d p l a i n t i f

f a n d e v a l u a t e d h i s medications. 9. Plaintiff’s medications were adjusted to comply with HDSP policie s. 10. F rom 2006 to 2007, HDSP had a policy to not pr o v ide methadone to patients in g eneral population. 11. D efendant Dr. DialC H E S S V

. D O V E Y 11

p r e s c r i b e d p l a i n t i f

f N a p r o s y

n / N a p r o x e n [ Aleve] and aspirin to treat his pain.

On direct ex amination Dr. D i a l did not mention HDSP’s narcotics p olicy as a basis for ending Chess’s methad o ne prescription. I nstead, he testified that he ended it because o f the dang er it posed to Chess:

I remember stopping the medicine. Not every one, but some. And I h eard earl i er one o f
t h e m i s the methadone.

. . . And there’s a

reason for that. At that time people were dy ing from methadone. Not by the hundreds, but by the thousands.

Dr. Dial said there w ere two bases for his characteriz ation o f methadone as p osing a d ang er. He described a warning from the U.S. F ood and Drug Administration
, and was about to describe a

nother when the judg e cut him of f
, s ay ing “we don’t have a question.” On cross ex am i n a t ion, defendants’ attorney described, one by one, all of the medical conditions from which Chess suffered, and as to each one, asked whether tha t c o n d ition w as treated with methadone. Dr. D ial answered “no ” each time. The attorney then asked, “W a s y our decision to discontinu e Mr. Chess’s methadone prescription based on t h e ‘no narcotics’ policy that was in place at the present time? ” Dr. Dial answered, “Correct.”

Dr. Daniel J ames was i n v o lved in Chess’s initial
treatment in the C T C a n d in processing at least one o f Chess’s internal admini s trative appeals, b ut he had no

m emory of treating Chess. He testified b ased solely o n Ch e s s’s medical records. Dr. J ames mentioned methadone only once, in response to questions by the judg e:C H E S S V

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12

Q: [ T] here doesn’t appear to be any mention in y our treatment notes about any gr a dual reduction or chang e in the methadone prescription like there w as w ith the Klonopin. W h y is that?

A: I think tha t w ithdrawal f rom a narcotic doesn’t involve the same kind of risk o f seiz ures is the main thing

.
Q: I t seems like it’s not addressed at all.

A: No, I can’t a

nswer that. I ’m not sure why it wasn’t. And I don’t have my whole records.

Dr. J ames never mentioned HDSP’s n a r cotics policy in his testimony

.

Dr. Salahuddin Abdur- R a hman treated Chess several times at HDSP. He was asked about two s p ecific occasions du ri n g which Chess was ex periencing pain, and about the appropriateness of methadone a s treatment for the pain. The first was on J uly 4, 2007, when Chess had b e e n p r e scribed
g abapentin, a neuropathic pain reliever. Dr. Abdur-Rahman

was a sked w hether h e saw any thing that indica ted “that he needed something strong er, such a s methadone.” He answered, “ I did n ot.” The second was on September 5, 2007, whe n C h e ss had b een p rescribed morphine for p ain after an upper g astrointestinal e ndoscopy

. Dr. AbdurRahman was a s k e d whether he had “any information” indicating that the morphine was “inadequate to address any

c o mplaints of pain.” He answered, “I did not.” Then, a s a catch-a l l question, Dr. Abdur-Rahman was asked, “On allC H E S S V

. D O V E Y 13

those occasions that y ou saw M r. Chess or reviewed his medical records, did y ou have a ny informatio n f

rom which
y ou could conclude that he r equired methadone or strong er p a i n medication? ” H e answered, “I did not.” Dr. A b d u r

Rahman never mentioned H DSP’s narcotics policy in his testimony

.
Mary Miller, a nurse practitioner, treated Chess o n several occasions d

uring his time at HDSP. M s

. M i l l e r first treated Chess in the CTC, shortly after h i s a r r i v al. According to a stipulation in the pretrial or d e r , “ O n November 22, 2006, defendant nurse practitioner Miller ex amined p l a i ntiff a nd carried o ut defendant Dr. Dial’s orders.” Defendants’ c o unsel asked, “W as there any

thing during y our ex amination o f Mr. Chess on that first visit that indica t ed to y ou that he needed methadone to address his c o mplaints of pai n ? ” She answered, “No.” She was asked at tw o p o i n t s later in her testimony w hether methadone was an appropriate treatment for Chess. She a

nswered “ no” each time

. Fi n al ly
, she was asked w hether the prison’s narcotics po l i c y w as relevant to her treatment decisions:

Q: On all those occasions that y ou treated Mr. Chess, did y ou d ecide not to p rescribe the methadone because of the “ n o narcotics” policy at the prison?

A: N o. I decided that because I didn’t thi nk it was best for him.

Melody F rench, another nurse practitioner, treated Chess

on several occasions. Methadone was mentioned three times du ri n g h er testimony

. F irst, Ms. F rench testified that methadone does not adversely affect liver function a ny moreC H E S S V

. D O V E Y

14

than any o ther me d i ca t i on. Second, she testified that Chess had asked f

or methadone a s treatment for the p ai n h e was suffering from his v aricocele, and that she had refused. W h en asked, “W h y would y ou not treat h is varicocele with methadone? ” she answered, “ I t’s not appropriate.” F inally
, she was asked a catch-all question:

Q: On all those occasions that y ou either saw M r

. C hess or reviewed his medical records,

was there a n y evidence from which y ou can conclude that methadone was i ndicated to treat any of his complaints?

A: No.

Ms. F rench did not mention HDSP’s n a r c otics policy in her testimony

.

Gilian Dudley
, a phy sician assistant, met with Chess once to a d d ress an a dministrative complaint and she treated him on t w o o ccasions. I n March 2007, she interviewed Chess i n connection with a

n administrative a

p p eal. Nothing in Chess’s medical record indicated to Ms. Dudley that he needed methadone. I n O ctober 2007, she increased his dosag e o f
g abapentin. I n November 2 007, following his return f rom an outside hospital, she continued a prescription of morphine that had been initiated at the h ospital. She tes t ified that on both occasions t h e m edication she prescribed was sufficient
to treat Chess’s pain, a

nd that methadone was not needed. Ms. Dudley did not mention HDSP’s narcotics policy in her testimony

.

F inally
, Anita David, a

nother phy sician assistant, treated Chess on several occasions. O ne of them was in N ovemberC H E S S V

. D O V E Y 15

2007, when she prescribed Chess decreasing d oses o f morphine following his return from the o u tsi d e h ospital. Methado n e w as mentioned only once in Ms. David’s testimony
, in c onnection with her treatment of Chess on April 2, 2 007. She testified that Chess did not require methad o n e for his pain on that occa s i o n

. Ms. David did not mention HDSP’s narcotics policy

in her testimony

.

Throu g hout his stay at HDSP, d efendants continued to provide n o n

- narcotic painkillers to Chess. On at least two

oc ca sions, they g a ve him a narcotic drug
, morphine, for specific conditions, but they never g ave him methadone. I t is
not entirely clear from the transcript if Chess was a patient in the CTC w hen he was g ive n m o rphine, but w e infer that he

was. I n their testimony
, defendants attributed unnece s sary pain Chess mig ht have e x perienced while he was a t HDSP to his “noncompliance.” I t is undi sputed that Chess often refused to take the medication provided t o him. Chess acknowledg ed that he did not take naprox en a t a l l
, a nd refused to continue taking g a b apentin b e c a u se, in his v iew, these drug s were harmful to his liver.

Chess complained on seve r a l occasions that the nonnarcotic pain medicine he received w a s damag ing his liver. D efendants testified, however, that the medications they
pres c r i b ed p osed no harm to his liver. F or ex ample, Ms. David testified that she did not worry that g abapentin would ha rm Chess’s liver because it is “eliminated a hundred percent throu gh t h e kidney .” Defendants did acknowledg e

one presc r i p t i o n that mig ht have harmed Chess’s liver. Dr. May er Horensten, whom Chess did not name as a defendant and who did not testify
, o rdered a d o sag e of Ty leno l that could hav e harmed his liver if Chess had taken it a sC H E S S V

. D O V E Y

16

prescribed. I t is unclear from the recor d, however, h ow much, if any , Ty lenol Chess took pursuant to the prescription.

C. The J ury

I nstruction

The mag istrate judg e solicited the parties’ views o n jury instructions. Defendants proposed an instruction identical to the Ninth Circuit model ins t ruction entitled, “Prisoner’s Claim [ Reg arding ] Conditions of Confinement/Me dical Care.” See Ninth Cir. Model J u ry I nstr. § 9.25 (2010 ed.). The proposed instruction, which was ultimately g iven, described the elements of deliberate indiffere n ce and then included the following lang uag e:

I n determining whether the defendants violated the plaintiff’s rig h ts as alleg ed, y o u should g ive deference to prison officials in the adoption and e x e c ution of policies a nd practices that in their judg ment are needed to
preser v e discipline and to maintain internal security

.

This lang u ag e was added to the model instruction in the wake of our decision in Norwood v. Vance
, 591 F .3d 1062 (9th Cir. 2010). See Ninth Cir. Model Civ. J ury I nstr. § 9.25 cmt.

B e fore approving the proposed j u r y i n s t r u ctions, the judg e asked Chess if he had reviewed t h em and was prepared to state any objections. Chess a nswered that he had reviewed them but was not prepared to object. The judg e made it clear that Chess should o bject at the nex t opportunity if he did not like the instructions.C H E S S V

. D O V E Y 17

The nex t day
, after defendants’ counsel arg u ed in favor o f the instruction, the j u d ge ex pressed misg iving s a bout the deference lang

uag e. He stated:

Now, I think I sort of know what y ou’re
tr y i n g to touch upon in including that proposed lang uag e, and may be that proposed lang uag e mig h t be ap propriate if the defendants in front of u s w ere p rison administrators w ho were try ing to be—or who

a plaintiff was try

ing to hold liable because o f policies they

had implemented.

B u t how d oes that lang u ag e apply to these defenda n t s ? They can’t take policy into consideration in d eciding whether or not to provide constitutionally adequate me d ical

care.

Defendants’ counsel went back and forth with the judg e about the applicability of the deference langu ag e in the circumstances of this case. T he judg e indicated that he was “considering striking [ the deference] langu a g e” and asked Chess to weig h in ag ain. Chess responded: “ I d o n ’t quite understand ex actly
, but I don’t have any —I ’m g oing to leave that up to y ou.”

L ater that day
, the judg e raised the instruction issue once

more. He noted that the deference lang u a g e was added to the model instruction after our decision in Norwood , which was

a c o n ditions o f confinement case. B ut he thoug ht “an

a r gument can definitely be made that [ Norwood ] does n o t require the inclusion of that lang uag e w hen the question is an Eig hth Amendment adequate medical care claim as opposedC H E S S V

. D O V E Y

18

to an Eig hth Amendment ex cess i v e u s e of force or other conditions of confinement claim.” He ex pressed skepticism that it applied to medical c are cases g iven t h a t “ [ a] medical

ca r e c l aim really is not a classic c onditions of confinement claim.” H e indicated that if i t were up to him, he mig h t not

ex tend it to this case and speculated that the circu i t c o u rt mig ht someday address the issue. Ultimately
, h o wever, he approved the instruction because it was based on t h e N i nth Circuit model instruction and because “it is at least arg uable in this contex t that we may be in that g ray area where policy and medical care or that medical care decisions have to at least take into some account, to some d eg ree, policy issues.”

D . Verdict, J udg ment, and Appeal

After the judg e denied defendants’ motion f or judg ment

as a matter of law, the jury returned a verdict for d e fendants,

u pon which the judg e entered judg ment. Chess timely appealed. W e appointed counsel for Chess on appeal.

I I . Standard of Review

D e fendants a

rg ue that we should not r eview Ches s ’s challeng e to the jury instruction because h e w a ived it b y failing to m a k e a timely objection in the trial court. Chess
arg ues that we should review his challeng e de n o v o, or at l e a s t for p lain error. We hold, in the circumstances o f th i s case, that we should r eview the instruction de novo. B ecause the judg e comprehensively art i c u l a ted the problem with the instruction from Chess’s point of view, and because Chess, a pro se litig ant, effectively g ave the judg e his prox y , a formal objection w as unnecessary

. Consequently
, we hold that we should review the jury instruction a s if Chess had objected to it. B e cause Chess contends that the instruction is an incorrectC H E S S V

. D O V E Y 19

statement of the law
, our review is de novo. See Clem v

. Lomeli
, 566 F .3d 1177, 1180–81 (9th Cir. 2009). However,

we will not reverse the judg men t a ga i nst Chess if the error was harmless. See id. a t 1182.

A brief overview of o ur p a s t a nd present practice o f reviewing jury instructions will help ex plain o ur h o l d ing

. F ederal Rule of Civil Procedure 5 1 r equires that a “party w ho objects to an instruction or the failure to g ive an instru ction

m u s t do so on the record, stating d istinctly the mat t e r objected to and the g rounds for the objection.” F ed. R. Civ. P. 51(c)(1). W hen a party raises a c ontemporaneous objection to a jury instruction, we review the jury instruction

e i ther de novo or for a

buse of discretion, depending on t h e nature of the erro r

. S

e e Abromson v. Am. Pac. Corp.
, 114 F .3d 898, 902 (9th Cir. 1997) (abuse of discretion r eview of the t rial court’s formulation o f civil jury instructions); Mockler v. Multnomah Cnty.
, 140 F .3d 8 0 8
, 812 (9th Cir. 1998) (de novo review of c ivil jury instructions that misstate the law).

W e a p p roach unpreserved challeng es differently

. I n the past, we refused to review c halleng es to jury instructions in civil cases where the party challeng ing the instruction failed
to raise a t i m ely objection in the trial court. See H ammer v

. Gross
, 9 32 F .2d 842, 8 47 (9th Cir. 1991) ( en banc) (“This
court h as

. . . declared that there is no ‘plain error’ ex c eption in civil cases in this circuit.”). B ut even in those d ay s, when

we “enjoy ed a reputation as the strictest e nforcer of Rule 51,” id
., we “acknowledg ed a limited ex ception to our strict interpretation of Rule 51.” McGonigle v. Combs
, 968 F .2d 810, 823 (9th Cir. 199 2 )

. W e would review c halleng e s to jury instructions under o ur ordinary standards of r e v iew, without requiring a plaintiff to make a “futile formalC H E S S V

. D O V E Y

20

objection,” “[ w ] here the district court [ w a ] s aware of a party ’s concerns with an instructi on, and further objection would [ have] be[ en] u navailing .” Id

. This practice came to be known as the “pointless formality ” ex ception. See Payne
, 944 F .2d at 1464.

W e chang ed o ur review of jury instr u c tions a fter Cong r ess amended Rule 5 1 in 2 003 to provide for plain error review in civ i l c a s e s

. See F ed. R. Civ. P. 51(d)(2). N ow, when a litig a

nt in a civil trial fails to object t o a j u r y instruction, w e may review the challeng ed jury instruction for plain error. C.B. v. City of Sonora
, 769 F .3d 1005, 1016 (9th Cir. 2014) (en banc).

The pointless formality ex c eption has survived the 2003 amendment to Rule 51. Cf. Nor w ood
, 591 F .3d at 1066 (rejecting the arg ument that the appellant failed to preserve an objection to a jury instruction because “ [ a] n object i o n n e ed
not be formal” and “raising the issue ag ain v ia fo rm al ob j ection would be both unavailing and a pointless formality ”) (internal quotation marks and citations omitted)); Citrus El Dorado, LLC v. Stearns Bank
, 552 F

. Ap p ’ x 625, 627 (9th Cir. 2014) (“W e n eed not decide whether an objection wa s p reserved under the ‘ pointless formality ’

ex c e ption, because the instruction was plain error.” (citation omitted)). The only thing that h as chang ed is the g eneral rule from which the e x ception is tak e n

. P reviously the g eneral rule was forfeiture; now it is plain error review.

I n this case, an objection by Chess to the instruction n ow at issue would have been the functional equivalent of a pointless formality

. An “objection may be a ‘pointless formality ’ when (1) throug hout the trial the party arg ued the disputed matter with the court, (2) it is clear from the recordC H E S S V

. D O V E Y 21

that the court knew the party ’s g rounds for disag reement with the instruction, and (3 ) t h e party offered a n a lternative instruction.” Payne
, 944 F .2d at 1 464. There c an b e n o doubt that the trial court knew which p a r t of the instruction

was p roblematic and knew the specific reasons why

. On two separate occasions, the judg e ar t i c u lated the potential problems with the deferenc e l ang uag e in the proposed jury instruction: (1) it was irrelevant because Chess w a s s u ing prison doctors, and not the administrators who ad o p t e d the narcotics policy ; and (2) it was inappropriate in medical care cases, as distinct from ex cess i v e force and conditions o f confinement cases. The judg e also recog niz ed the relevant authority
, the Norwood case. Th e j u d ge was rig ht when he said, “I did identify

the main issue raised by

the inclusion of that lang uag e in a case such as this.”

I t does not matter that Chess d id not “arg ue[ ] the disputed
matter with the court.” Medtronic, Inc. v. W h i te , 526 F .3d 487, 495 (9th Cir. 2008) (quoting Glover v. BIC Corp.
, 6 F .3d 1318, 1326 (9th Cir. 1 9 9 3 ) )

. Althoug h Chess—who was unrepresented—did not raise the issue himself
, t h e judg e understood it and, in e ffect, argued it on his behalf. The judg e characteriz ed t h e p r oblem from the standpoint o f

someone in Chess’s position, and Chess deferred to the judg e

. Nor w as it necessary for Chess himself to ha v e o f f e red an “alternative instruction,” id
., f o r t he judg e proposed the alternative: strike the deference lang u ag e and leave the rest o f the instruction intact. See Payne , 944 F .2d at 1464.

W e will not punish a pro se litig ant w ith plain e rror rather than de novo review simply because he failed to s a y t he words “I object” when the trial judg e and defendant s knew

w h y t h e instruction mig h t be erroneous and what the objection would have been. Reviewing for plain error in thisC H E S S V

. D O V E Y

22

c a s e w o u ld run contrary to our “duty to ensure that pro s e litig ants d o n o t lose their rig ht to a hearing on the merits o f their claim d

ue to ig norance of technical p rocedural requirements.” Balistreri v

. Pacifica Police Dep’t
, 901 F .2d 696, 699 ( 9th Cir. 1990). F u rther, plain error review wo uld do nothing to a dvance the purpose o f Rule 51, which i s “to enable the trial judg e to av o i d error b y affording him an opportunity

to correct statements and avoid omissions in his charg e b efore the cause has been deci d ed by the jury .” Inv. Serv. Co. v. Allied Equities Corp.
, 5 19 F .2d 508, 510 ( 9th Cir. 1975); see also Palmer v. Hoffman
, 3 18 U.S. 109, 119 (1943) (“In fairness to the trial court and to the p arties, objections to

a charg e must be sufficiently specific to bring into focus the precise natu re of the alleg ed error.”). Here, Chess did not attempt t o “ s andbag ” the trial judg e by failing to object in

or d e r t o take out insurance ag ainst an adverse verdict. See Elder v. Holloway
, 984 F

. 2d 991, 998 (9th C i r

. 1 993) (Koz inski, J
., dissenting ) (the purp o s e of Rule 51 is to preclude p arties from “sandbag [ g ing ] ” the trial j u dg e to g et “two bites at the a

p ple”). Chess w as c o n f

u s e d a nd leg ally unsophisticated. B ut the judg e and d efendants’ lawy e r were not. They knew what the problem was and debated the issue vig orously

. I n these circumst a nces, any objection by Chess would have been “‘superfluo u s a n d futile,’” a nd plain error review would be too hars h a sanction for failure to object. Obsi d i a n F

i n. Grp., LLC v. Cox
, 740 F .3d 1 284, 1289 (9th Cir. 2014) (quoting Dorn v

. Burlington N. Santa Fe R

. R. Co.
, 397 F .3d 1183, 1189 (9th Cir. 2005)).

I I I . Analy sis of the J ury

I nstruction

After informing the jury of the elements Chess n eeded to prove to prevail on h is claims, the m a gi s trate judg e added a deference i n struction. He directed the jury

, pursuant to ourC H E S S V

. D O V E Y 23

circuit’s model inst r u c t i on, to “g ive deference to prison officials in t h e adoption and ex ecution of policies a nd practices that in their judg ment are needed to preserve discipline and to maintain internal security .” The mag istrate judg e was r ig ht to doubt the relevance, and hence the propriety
, of this inst r u ct i on. See United States v. W a rren , 984 F .2d 325, 327 n.3 (9th Cir. 1993) (“Use of a model jury instructi o n does not preclude a finding of error.”). F o r the

reasons that follow, we conclude that trial judg es in prison

m e d i cal care cases should not instruct jurors to defer t o t h e adoption and implementation o f security -based prison poli c i e s , u nless a party ’s presentation o f the case draws a plausible c o n n e ction between a security -based p olicy o r practice and the challeng ed medical care decision. No other circuit routinely r equires this a d ditional deference in all medical care cases, 1 and neither should we.

A. The I nstruction

The deference lang uag e at issue in this case derives from W hitley v. Albers
, 475 U.S. 312, 321–22 (1986). I n that c ase,

an inmate alleg ed that he was subjec t to cruel and unusual punishment w hen h e was shot by a prison g uard during a riot in which another g uard was taken hostag e. Id

. A t 316–17.

1 T h e N i n th Circu it’ s m od el j u ry in stru ctio n s are also u n iq u e in in clu d in g th e d ef

eren ce lan g u ag e i n Eig h th A m en d m en t co n d itio n s- o f

c o n fi n em en t cases. Ex cep t f o r lan g u ag e in a Fif

t h Circu it m o d e l in stru ctio n , see P attern J u ry In str., Civ
., 5 th Cir., § 1 0 .7 (2 0 1 4 ), an d a

m o d el i n st r u c t i o n d ev elo ped b y a d i strict j u d g e o n th e First Circu it, th e d ef eren ce lan g u ag e d oes n o t ap p ear i n a n y o t h er circu it’ s m od el in stru ct i o n s f

or p riso n er rig h ts’ claim s. S ee, e.g

. , In str. f

o r Civ

. Rig h ts Claim s u n d er § 1 9 8 3
, 3 d Cir., §§ 4 .1 0
, 4 .1 1 .1 (2 0 1 4 ); Fed

. Civ

. J u ry In str.

o f 7 th C ir., §§ 7 .1 4
, 7 .1 5 (2 0 09 rev

. ) ; 8 t h Cir. C iv

. J u ry In str., § § 4 .4 2
, 4 .4 3 (2 0 1 4 ); 1 1 th

Cir. Civ . P attern J u ry

In str., § § 5 .3 , 5 .4 , 5 .5 (2 0 1 3).C H E S S V

. D O V E Y

24

The Supreme Court a dopted a heig htened subjective standard for ex cessive force claims—malicious and sadistic—instead of the subjective standard g overning medical ca r e ca ses— deliberate indifference. Id

. a t 320–21. The asy mmetry was app r opriate, the Court e x plained, because “the State’s responsibility to attend to the medical needs of prisoners does

n o t o r d i n a

rily c lash with other equally impor t a n t g overnmental responsibilities.” Id

. a t 320. I n contrast, when
p r i s o n officials decide to u se force to restore order, the y a ct “in h aste, under pressure” a nd must balance c ompeting institution a l c o n c erns for the safety of prison staff or other inmates. Id.

As a result of W

h itley
, our circuit’s model jury instruction for prisoners’ ex cess i v e force claims directs jurors to “g ive deference to prison officials in the adoption a nd ex ecution o f policies and practices that in their judg ment ar e n e e d ed to preserve discipline and to maintain inte r nal security in a prison.” Ninth Cir. Model Civ. J ury I n str. § 9.24 (2013 ed.);

see Norwood
, 5 91 F .3d at 1067. I n Norwood
, a divided panel of this court held that the d eference instruction must be g iven,
not only in ex cessive f

orce c a ses, but also in conditions o f confinement cases. Id. (“Prison of f i c i a l s are entitled to deference whether a prisoner chall eng es ex cessive force o r conditions of confinement.”). However, we said n othing in Norwood about medical care cases.

W e see nothing in the reasoning of Norwood that leads us g enerally to require its deference instruction in medical care

cases. F irst, Norwood deriv ed the deference lang uag e from Bell v. W olfish
, 441 U.S. 520 (1979), which was “i t s e l f a conditions of confinement case .” Norwood
, 591 F .3d at 1067. W e cannot do t h e same derivation here, for theC H E S S V

. D O V E Y 25

Supreme Court has not used the same deference lang uag e in a medical care case.

Second, a nd more impor tant, security considerations a re usually not present in medical c a re cases. I n the g r e at majority of medical cases, the plaintiff does not po i n t t o a security -based p r a c t i c e or policy as the source of h is or her harm, and defendants in such cases d o not defend their actions on the basis of such a p r a ct i c e o r policy

. Rather, in the ty pical case, the plaintiff c halleng es prison medical staff’s refusal o r failure to provide c e rtain care. T he r efusal o r failure to provide such care is sometimes ba s e d o n an administrative policy
, b u t these policies ty p i c a lly do not relate to security or di s cipline. See, e.g. , Colwell v

. Bannister
, 763 F .3d 1 060, 1 063–64 (9th Cir. 2014) (“I t is the
po l i c y of the Department that inmates with cataracts will be

e v a luated o n a case by case basis, taking into considerat i o n their ability to function within their curren t l iving

e n v ironment.” ( quoting the prison’s policy )); Snow v

. McDaniel
, 681 F .3d 9 78, 986 (9th Cir. 2 012) (describing the factors a prison medical review board was to c o nsider in deciding w hether to approve sig n ificant medical procedures, such as “the leng th of the inmate’s remaining sentence, how well the inmate is a ble to perform activities of daily living
, the available r esources, a nd the risks and benefits of the proposal”), overruled b

y Peralta v

. Dillard
, 744 F .3d 1076 (9th Cir. 2014) (en banc). I n these circumstances, where the parties do not put into issue a s e c urity -based policy
, the deference instruction has no “foundation in the evidence” a nd should n ot be g iven. Clem , 566 F

. 3d at 1181 (quoting Dang v. Cross , 422 F .3d 800, 804–05 (9th Cir. 2005)).

Third, the Norwood p anel reasoned that it made sense to

use the deference instruction, w h ich we already use in casesC H E S S V

. D O V E Y

26

of ex ce s s i v e force, in cases d ealing with conditions o f confinement b ecause the use o f f o r c e and restrictive confinement ( which was at issue in Norwood ) “are often flip sides of the same coin: A more r estrictive confinement m ay diminish the need for f orce and vice versa.” Norwood
, 591 F .3d at 1067. I n our view, medical treatment is quite a different c urrency

. I t is different because “ the State’s responsibility to attend to the medical needs of prisoners does
not ordinarily clash with othe r e q u a l l y i m portant g overnmental responsibilities.” W h itley
, 475 U.S. at 320; see also W e llman v

. Faulkner
, 715 F .2d 269, 272 (7th Cir. 1 983) (“[ T] he policy of deferring to the judg ment of prison officials in matters of prison discipline and security does not usually apply in the contex t of medical c are to the same deg ree as in other contex ts.”). And dec i s i o n s about medical care a nd policy are not o rdinarily made in haste or under stress, unlike
many decisions about the u se of f orce or r e strictive confinement. Consequently
, “[ t] he requirement of deliberate i n d i f f e rence is less string ent in cases involving a prisoner’s medical needs than in o ther cases in v o l v i ng harm to i ncarcerated individuals.” McGuckin v. Smith
, 974 F. 2 d 1050, 1060 (9th Cir. 1992), o verruled in part on other grounds by W

MX Techs., Inc. v. M

iller
, 104 F .3d 1133, 1136 (9th Cir. 1997) (en banc). F or this r eason , i n t h e g reat majority of cases, “‘[ i] n deciding whether t h e r e has been deliberate indifference to an inmate’s serious medical needs,

w e need not defer to the judg ment of prison docto r s o r administrators.’” Colwell
, 763 F .3d at 1066 (quoting Hunt v

. Dental Dep’t , 865 F .2d 198, 200 (9th Cir. 1989)).

W h ile the Norwood instruction is inappropriate in most medical care c ases, Norwood ’ s log ic leads us to rec og niz e that the instruction m a y sometimes, thoug h rarely
, be appropriate. W e must be attentive to the differences am o ngC H E S S V

. D O V E Y 27

medical cases. Cf

. W h itley
, 475 U.S. at 320 (claims under the Eig hth Amendment must be analy z ed “with due reg ard for d i f f erences in the kind o f conduct ag a inst which an Eigh t h Amendment objection is lo d ge d ”)

. Not all of them a re ordinary

. T here may be o utlier cases in which medical care and security c oncerns g enuinely clash and p rison per s onnel

mus t make their medical care decisions in lig ht of those

concerns. See, e.g. , Clement v. Gomez
, 298 F .3d 898, 905 n.4 (9th Cir. 2002) (defendants d e lay ed treating inmates ex p osed
to the pepper spray they used to stop a fig ht be c au s e they needed to maintain or d er first, which made the case “differ[ ent] from most cases in v olving the deprivation o f medical needs”). I n those situations, prison officials will have to b alance prisoner health and safety ag a inst “competing institutional concerns for the safety o f p r i son staff or other inmates.” W

hitley
, 475 U.S. a t 320. B ecause this balancing requires the “ex pert judg ments” of prison o f f icials, these decisions a

re “entitled to d eference,” j u st a s they a re in conditions of confinement cases. Norwood
, 591 F

. 3d at 1067;

see Kosilek v. Spencer
, 774 F .3d 63, 83 ( 1 s t C i r

. 2014) (en b a nc) (“W hen evaluating medical care and delibera t e indifference, security consi d erations inherent in the functioning of a peno l o gical institution must be g iven sig nificant weig ht.”); see also Florence v. B d

. o f Chosen Freeholders o

f Cnty. o f Burlington
, 132 S. C t. 1510, 1518 (2012) (“The Court has held that deference must be g iven to the officials in charg e of the jail u nless ther e i s ‘ s u bstantial evidence’ demonstrating their r e s ponse to the situation is

ex a g g erated.” (quoting B lock v. Rutherford
, 468 U

. S

. 576, 584–85 (1984))).

I n lig h t of the foreg oing
, we hold that a trial jud g e may instruct a jury to defer to a policy o r practice adopted a nd implemented b y prison offici a l s o nly when that policy o rC H E S S V

. D O V E Y

28

practice a ddresses bona fide safety and security concerns, a nd when there is evidence that the c h a l l eng ed medical decision

was mad e p u r suant to that security -based policy or practice. Put another way , the t rial judg e in an Eig hth A mendment medical care case should n o t give the deference instruction unless one p arty ’s presentation of the case plausibly draws a connection between the security -based policy or practice a nd the medical care decision at issue.

I n Chess’s case, this conn e c t i on was lacking

. I t was therefore error for the mag istrate judg e to g ive the deference i n struction. Chess alleg ed that d efendants denied h i m methadone solely

because a Hig

h Desert State Prison p olicy prohibits g e neral popula t i o n inmates from r eceiving that medication. B ut, crucially
, he d id not introduce any evidence
at trial that the narcotics policy affected t h e k e y decision he challeng ed—defendants’ decision to c u t off methadone, rather than tapering it off w hile he w a s i n t h e CTC. He
t e s tified that “the w hole time I spent in [ the CTC] un t i l t h e time they did put me in the g e n eral population, I was in pain. And I don’t know what their real r eason was, why they wouldn’t treat m e f

or pain, but they wouldn’t and they didn’t.” Chess did not dispute that the n a r c o t ics p olicy

ex p licitly allowed the administration of methadone in the CTC. I ndeed, he told the jury in his opening statement that, alth o u g h defendants claimed that they could not g ive him methadone because he was in g eneral population housing
, they c ould have p rovided it to him in the CTC. He ex plained, “[ T] hey have something up the r e which is called CTC. I t’s

a treatment cent e r , l ike a little h ospital. And that’s not the
g eneral population. They co uld have went and g ot a nonformulary drug
, just li k e they did for the Klonopin, to taper me o ff of [ methadone] .” I t is true that Chess also
soug h t a prescription for methadone after he was transferredC H E S S V

. D O V E Y 29

to the g eneral prison population. Th e o r etically
, then, the policy could have affected the r esponses to his subseque n t requests for methadone. B ut in actuality
, Chess presented no evidence that it did.

On the other side, defendants did not invoke the narcotics policy to defend t h e i r care. I n her opening arg ument, defendant s ’ counsel stressed the irrelevance of the narcotics policy
, informing the jury t h a t they would “hear a lot o f testimony from all the defend a nts that the ‘ no narcotics’ policy a t Hig h D esert really is irrelevant beca u s e a l l the evidence showed that [ Chess] d id not require a medication o f that streng th for his complaints o f pain.” I ndeed, the only defendant w ho testified that h e relied on the policy in treating Chess was Dr. Dial. B ut Dr. Dial saw Chess only once at the beg inning of Chess’s stay in the CTC, and the policy did not prevent Dr. Dial from g iving Ches s t apering -off d oses o f methadone. Six of the eig ht defendants were not asked about the policy a

nd did not independently mention it in the course of defending their treatment decisions. Ex cept f o r D r. Dial, only Ms. Miller, who treated Chess both during and a fter his initial stay in the CTC, addressed t h e p o l i cy as it related to Chess’s treatment. She specifically denied that she declined
to prescribe the methadone b e c a use of the narcotics policy

. She decided not to prescribe it “because [ she] didn’t think it was best for [ Chess]

. ”

On these facts, there is n o reason to think tha t s e c u rity
concerns, or the n arcotics policy born of those concerns, h ad
any thing to do with defendan t s ’ d ecision to withhold methadone while Chess was at HDSP. Therefore, it was error to issue the deference instruction.C H E S S V

. D O V E Y

30

B . The W ilson Dicta

I n authoriz ing the use of the deference instruction only in

ex c e ptional medical care cases, we reject defendants’

a r g ument that lang uag e in the Supreme Court’s o pinion i n W ilson v. Seiter
, 501 U.S. 294 (1991), compels us to ex tend the Norwood rule to all medical care cases. The W ilson Court

was asked to decide whet h e r a prisoner challeng ing his conditions o f confinement had to prove that the defendants had a culpable state of mind, a n d if so, w hat that state o f mind had to be. Id

. a t 2 9 6

. T h e Court held that there was a subjective standard, and that it was the same s t an d a rd the Court already

applied to medical care cases. Id . at 303.

Defendants point to the following lang uag e from W

ilson in support o f their c laim that medical care claims a re a subset of conditions of confinement claims and that the two must be treated identically in jury instructions: “[ T] he medical care a prisoner receives is just as much a ‘condition’ of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in h is cell, a n d the protection he is afforded ag ainst other inmates.” Id

. The Court also said in a f ootnote, “I t seems to u s , however, that if an individual prisoner is deprived of nee d e d m e d ical treatment, that is a condition o f his confinement, whether o r not the deprivation is inflicted upon every

one else.” Id

. at 299 n.1.

B o th sentences are d icta in the service of a d ifferent point than the one defendants seek to make. The first sentence was the Court’s response to W ils on’s arg ument that he need not make a showing as to the defendants’ state of mind, and that the jury should decide whe t h e r the defendants’ conduct was wanton solely by evaluating the effect of the conditions on W ilson. The Court rejected this arg ument because it h adC H E S S V

. D O V E Y 31

already decided in W

h itley that wantonness must be evaluated from the defendant’s point of v iew. I t was “[ f] rom that

s tandpoint” that the court saw “no sig nificant distinct i o n between claims alleg ing inadequate medical care and those alleg ing inadequate ‘condition s o f c o n finement”; both require prison officials to mak e d e cisions u nder constraints. Id

. at 303.

The second sentence w as addressed to the concu r ring justices, who arg ued that there w as a leg ally relevant distinc t i o n t o b e drawn between “specific acts or omissions directed at individual prisoners” (whi c h w a rranted a

s u b j e c t i v e i n q u i r y ) an d s y s t e m a t i c “c o n d i t i o n s o f confinement” that affected all pr isoners (which did n ot). W ilson
, 501 U.S. at 309 (W hite, J
., concurring ). T he majority used the ex ample of medical care to make the point that defendants’ conduct, whether directed at one person or many people, should be evaluated ag ainst the same standard.

I n b oth se n t e n c e s , the Court in W ilson was drawing an analog y b etween medical c a re c a se s and conditions o f confinement cases to ex plain why they should b ot h h a v e a subjective element and why the standard for conditions cases should be the same as that applied to medical care claims, rather than that applied t o e x cessive force claims. As the Court wrote , “W hether one c haracteriz es the treatment received by [ the prisoner] as inhumane conditio n s o f confinement, failure to attend to his medical n e e d s , o r a combination of both, it is appropriate to a pply the ‘deliberate indiffere n c e’ standard articulated in Estelle .” Id

. at 303 (majority opinion) (interna l q uotation marks omitted); see Hudson v. McMillian
, 503 U .S. 1, 8 (1992) (“ W ilson ex tended the deliberate indifference standard a pplied to Eig hthC H E S S V

. D O V E Y

32

Amendme n t claims involving medical care to claims about conditions of confinement.”).

Defendants’ reading of the W ilson d icta proves too much. Prisons are t o t al institutions in which prison personnel control all aspects of life. Every

thing an inmate ex periences is, at a g eneral level of ab s t raction, a condition of his confinement. This includes his access to the y ard, the medical care he receives, and the force used to subdue him. Cf. F a r m e r v

. Brennan
, 511 U.S. 825, 832 (1994) (The Eig hth A mendment “also imposes duties o n these [prison] official s , w h o must provide humane conditions of confinement; p r is on officials
must ensure that inmates receive a dequate food, clothing
, shelter, and medical care, and must ‘take reasonable measures to g u arantee the safety of the inmates.’” (quoting H udson v

. Palmer
, 468 U.S. 517, 5 26–27 (1984))). B ut we cannot treat claims r elating to ea c h of these conditions as if they are all indisting uishable conditions of conf inement claims. The Supreme Court has told us as much: cla i m s related to some facets of prison life, like the use of force, are subj e ct to a different standard than others. That is t h e point of W hitley

a nd W ilson
, and it is a p o int w e recently reconf i rm ed i n Harrington v. Scribner
, N o. 0 9-16951, 2015 W L 2 106387 at *5, * 8 n.1 (9th Cir. May 7, 2015), in which we rejected the

us e o f t he Norwood instruction in a case broug ht by a prisoner a lleg ing racial discrimination in violation of the F ourteenth Amendment, over an objection that s u c h alleg ed discrimination constituted a condition of confinement.

C. Harmless Error

Althoug h we conclude that the jury instruction was error,

we do n ot reverse the judg ment becaus e d e fe ndants have carried their burden of showing that “it is more probable thanC H E S S V

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not that the jury w o u ld have reached the same verdict had it been properl y i nstructed.” Clem
, 566 F .3d at 1182 (internal citations and quotation marks omitted).

F or the reason the instr uction w as erroneous, it was also harmless. A s we ex plaine d ab o v e, the narcotics policy at HDSP did not catag orically prevent Ch e ss from r eceiving methadone. Chess was elig i b l e to receive methadone while he was in the CTC, where h e was initially placed. I f Chess’s doctors thoug ht he needed methadone a t that time, they could have g iven it to him. I f t hey thoug ht he needed it after he joined the g eneral population, they could h ave transferred him back to the CTC to receive it. We know t h e p o licy did
not drive defendants’ decision to deny him methadone because when they thoug ht h e n e e ded narcotics, they g ave t hem to him. I ndeed, they prescribed him morphine a t l ea s t twice.

All the defendants ex cept Dr. D ial test i fied that they did
not g ive Chess methadone because he did n o t n e ed it. Dr. Dial said that Chess did not need it, and that it w as d ang erous. He also stated in a one-word answer t h a t the prison p olicy forbade it outside the CTC. B u t the policy was irrelevant to Dr. Dial’s treatment, for h e t r e a t e d Chess only in the CTC. D e fendants consistently testified that methadone was not medically indicated f

o r Chess’s conditions and that none o f the non-narcotic painkillers they prescribed him were harmf u l
to h i s l i ver. Chess offered only his own non-ex pert opinion to counter defendants’ medical opinions.

Defendants s aw Chess frequently
, ordered several diag nostic tests, repeatedly a d justed his medications,
p r oposed surg ical interventions, and w ere otherwise conscientious in their c a r e gi v ing

. Chess resisted them atC H E S S V

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34

almost e very turn, refusing to take the medication they prescribed him and delay ing treatmen ts that mig ht have helped him. W e are c onfident that the jury would have f ound for defendants even if it did not receive the deference instruction.

Conclusion

W e hold that the mag istrate judg e erred in this c a s e i n instructing the jury to defer to p rison officials in the adoption and ex ecution of policies and practices that in their judg ment

are needed to preserve discipline a nd to maint a i n internal security

. This i n struction is inappropriate in medical care

cases broug ht by prisoners under § 1 9 83, u nless a party ’s presentation of the case draws a plausible connection b etween

a security

- based policy or practice and the challeng ed medical

c a r e d ecision. Neither p a r ty drew such a connection in t h i s

case. However, because this error was h armle s s, we affirm.

AF F IRMED.