FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL CHESS,

Plaintiff-Appellant,

v.

J. DOVEY, Director of Corrections;

ABUL, Doctor of the CDC; MIDGE

MILLER, Nurse Practitioner; ROCHE,

Medical Doctor of the CDC; JAMES,

Medical Doctor of CDC; DIAL,

Medical Doctor of CDC; G.

DUDLEY, Physician’s Assistant;

ANITA DAVID; M. FRENCH, Nurse

Practitioner; S. ABDUR-RAHMAN; T.

FELKER, Warden,

Defendants-Appellees.

No. 12-16516

D.C. No.

2:07-cv-01767-

DAD

OPINION

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, Magistrate Judge, Presiding

Argued and Submitted

October 7, 2014—San Francisco, California

Filed June 25, 2015
2 CHESS V. DOVEY

Before: William A. Fletcher and Paul J. Watford, Circuit

Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge W. Fletcher

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s judgment, entered

following a jury verdict, in an action brought under 42 U.S.C.

§ 1983 by a California state prisoner who alleged that he was

denied constitutionally adequate medical care when members

of the prison’s medical staff denied him effective pain

medication.

On appeal, plaintiff asserted that the magistrate judge

erred in instructing the jury to give deference to prison

officials in the adoption and execution of policies and

practices that in their judgment are needed to preserve

discipline and to maintain internal security.

The panel first held that when a pro se civil litigant fails

to object to a jury instruction, the court should review the

instruction under the ordinary standard of review, rather than

for plain error, if the district court and opposing party were

* The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CHESS V. DOVEY 3

fully aware of the potential problem with, and would-be

objection to, the instruction. 

The panel held that the deference instruction should not

ordinarily be given in Eighth Amendment medical care cases

brought by prisoners. Rather, a trial judge in an Eighth

Amendment medical care case should only give the deference

instruction if one party’s presentation of the case plausibly

draws a connection between the security-based policy or

practice and the medical care decision at issue. Neither party

drew such a connection in this case. Nevertheless, although

the panel concluded that the jury instruction was error, it did

not reverse the judgment because defendants carried their

burden of showing that it was more probable than not that the

jury would have reached the same verdict had it been

properly instructed. The error therefore was harmless.

COUNSEL

Stephen Patrick Blake (argued), Alexis Coll-Very, Simpson

Thacher & Bartlett LLP, Palo Alto, California, for PlaintiffAppellant.

Thomas S. Patterson (argued), Supervising Deputy Attorney

General, Office of the California Attorney General, San

Francisco, California; Kamala D. Harris, Attorney General,

Jonathan L. Wolff, Senior Assistant Attorney General, Diana

Esquivel and Vickie P. Whitney, Deputy Attorneys General,

Office of the California Attorney General, Sacramento,

California, for Defendants-Appellees.
4 CHESS V. DOVEY

OPINION

W. FLETCHER, Circuit Judge:

Appellant Michael Chess brought this action under

42 U.S.C. § 1983 against eight members of the medical staff

at California’s High Desert State Prison, alleging that they

denied him constitutionally adequate medical care while he

was incarcerated there. Chess represented himself at trial. 

Two Eighth Amendment claims of deliberate indifference

went to trial. As characterized in the final pretrial order, they

were (1) that “defendants denied [plaintiff] effective pain

medication; specifically, that defendants purportedly

discontinued plaintiff’s use of methadone solely because a

High Desert State Prison policy prohibit[ed] generalpopulation inmates from receiving that medication”; and

(2) that “defendants prescribed plaintiffmedication, including

Tylenol, aspirin, niacin, and Naprosyn, knowing that those

drugs were harmful to his liver.” The jury returned a verdict

for defendants on both claims.

Chess makes only one contention on appeal. He contends

that the magistrate judge erred in giving a jury instruction that

read in pertinent part:

In determining whether the defendants

violated the plaintiff’s rights as alleged, you

should give deference to prison officials in the

adoption and execution of policies and

practices that in their judgment are needed to

preserve discipline and to maintain internal

security.
CHESS V. DOVEY 5

This language is taken from a Ninth Circuit model instruction

based on Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010),

and is entitled, “Prisoner’s Claim [Regarding] Conditions of

Confinement/Medical Care.” See Ninth Cir. Model Civ. Jury

Instr. § 9.25 (2010 ed.). Chess did not object to the

instruction.

We must first decide the standard of review that governs

Chess’s appellate challenge to the jury instruction. We hold

that when a pro se civil litigant fails to object to a jury

instruction, we will review the instruction under the ordinary

standard of review, rather than for plain error, if the district

court and opposing party were fully aware of the potential

problem with, and would-be objection to, the instruction. In

such circumstances, an objection would be tantamount to a

“pointless formality.” United States v. Payne, 944 F.2d 1458,

1464 (9th Cir. 1991).

We must also decide whether the magistrate judge erred

in giving the challenged instruction. Contrary to the title of

the model instruction, we hold that the deference instruction

should not ordinarily be given in Eighth Amendment medical

care cases brought by prisoners. Rather, the instruction may

be given only when there is evidence that the treatment to

which the plaintiff objects was provided pursuant to a

security-based policy. That was not the case here. We

therefore hold that giving the instruction in this case was

error. However, because the error was harmless, we affirm

the judgment of the district court.
6 CHESS V. DOVEY

I. Facts and Procedural Background

A. The Narcotics Policy at HDSP

Chess was imprisoned in California’s High Desert State

Prison (“HDSP”) from November 21, 2006, until February 8,

2011. A prison policy in effect from sometime in 2006 to

sometime in 2007 (the precise dates are not specified in the

record) prohibited members of HDSP medical staff from

prescribing narcotic drugs to prisoners who were assigned to

general inmate housing. However, medical staff were

allowed to dispense narcotic drugs to prisoners while in the

prison’s infirmary, the Correctional Treatment Center

(“CTC”).

Defendant Dr. Steven Roche, the medical director of the

prison at the relevant time, testified about the HDSP policy:

[T]he policy was that we had narcotics

available for use in the emergency room and

in the infirmary. The issue was that we could

not control narcotics on the yards. We didn’t

have a process in place to document the use of

narcotics. And so essentially the warden

decided that he was not going to allow

narcotics on the yard at all. If a patient

needed narcotics, morphine, those kinds of

things, then he would have to be admitted to

the infirmary and given the narcotics in the

infirmary or transferred to a different facility

that had the ability to take care of him.

And again, the problem with the narcotics

was that these were valuable to inmates. I
CHESS V. DOVEY 7

mean they had a certain cash value depending

upon the narcotic. In addition, just

inventorying the narcotics within the clinic

itself was inadequate. The pharmacist at the

time called the Board of Pharmacy because he

was not able to verify who was using the

narcotics that he was bringing out to the clinic

at one point, and the Board of Pharmacy said

that by pharmacy regulations, he did not have

to provide narcotics if he didn’t know where

they were going.

B. Evidence at Trial

Chess had been transferred from another California state

prison to HDSP. He arrived with a variety of ailments,

including blindness in his left eye, hepatitis C,

hypertriglyceridemia (elevated levels of triglycerides), left

varicocele (enlargement of the scrotum vein), gallstones,

kidney stones, degenerative disc disease of the cervical spine,

bloody urine, and a seizure disorder. According to his

complaint, these ailments caused Chess to suffer cramps in

his lower extremities, sharp abdominal pain, uncontrolled

muscle twitching, headaches, skin rashes, loss of balance, and

constant pain. Prior to his transfer to HDSP, doctors at

California State Prison, Solano, had prescribed Klonopin (a

muscle relaxant), methadone, and other medications.

Chess was assigned to the general population when he

arrived at HDSP, but as a new prisoner he was initially placed

in the CTC. While in the CTC, medical staff gave him

“tapering-off” doses of Klonopin until he was fully weaned

from the drug. Medical staff cut off his methadone without

any tapering. Chess was discharged from the CTC into the
8 CHESS V. DOVEY

general prison population on December 26, 2006, a little

more than a month after his arrival at the prison.

Chess testified that he suffered substantial pain while in

the CTC due to sudden withdrawal of his methadone:

And yes, I did ask to be put back on

methadone. I was on it for about four or five

years before I went up there, and I have

documentation that states from a liver

specialist that it is not very harmful to your

liver.

They keep saying—they kept saying

yesterday that they couldn’t give it to me

because they didn’t allow it in general

population, but the CTC, the Correctional

Treatment Center where they had me, is not a

general population. It’s like a little small

hospital with single rooms. And the whole

time I spent there was a nightmare. It was

miserable. And I was in pain the whole time. 

And like I said, the [naproxen], the aspirin,

multivitamins, I don’t have any idea why they

gave those to me. That’s not a pain

medication. And neither is folic acid. That’s

a vitamin B. And they say they treated me for

pain, which is not true.

And the whole time I spent in there until

the time they did put me in general

population, I was in pain. And I don’t know

what their real reason was, why they wouldn’t
CHESS V. DOVEY 9

treat me for pain, but they wouldn’t and they

didn’t.

After his placement in general population housing, Chess

repeatedly asked for methadone and complained of pain. He

filed numerous administrative grievances and frequently

visited the defendant doctors, nurses, and physician assistants. 

The medical staff at HDSP never prescribed methadone,

despite Chess’s numerous requests and reiterated complaints

that his prescribed pain medication was inadequate.

Eight members of HDSP medical staff were named as

defendants—four doctors, two nurse practitioners, and two

physician assistants. They all testified at trial. Chess testified

on his own behalf, but did not put on the stand any expert

witness or otherwise provide expert evidence to contradict

defendants’ testimony.

Dr. Roche did not treat Chess directly but oversaw and

approved his treatment. He testified that there were

important medical reasons to take Chess off of methadone. 

In response to a question from the judge, he explained:

I think my staff at the time evaluated him

appropriately, hospitalized him, and we[a]ned

him off of his Klonopin. The problem with a

combination of sedative drugs and a drug like

methadone is [that] there are complications to

this, side effects to it, including death. 

Methadone is a very complicated drug to

administer and to monitor. . . . I would have

to say that the combination that he was on

[before coming to HDSP] was somewhat

inappropriate.
10 CHESS V. DOVEY

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

There are benefits to almost every medicine

you can think of, but there are also risks to

almost every medicine you can think of.

For instance, that type of reasoning was

why you were hospitalized when you first

came [to HDSP] and you were taken off of

your Klonopin and your methadone because

they’re dangerous in that environment, and

particularly in a patient like yourself with

your compliance issues.

Dr. Roche described the narcotics policy at HDSP, as

indicated above, but except for his reference to the

dangerousness of Klonopin and methadone “in that

environment,” he never stated or even suggested that the

refusal to provide methadone to Chess was based on the

policy.

Dr. Lino Dial provided initial treatment to Chess when he

arrived at HDSP. He saw Chess only once, immediately after

his arrival. According to the final pretrial order, the

following was undisputed:

8. On November 22, 2006, defendant Dr. Dial

examined plaintiff and evaluated his

medications. 9. Plaintiff’s medications were

adjusted to comply with HDSP policies. 10. 

From 2006 to 2007, HDSP had a policy to not

provide methadone to patients in general

population. 11. Defendant Dr. Dial
CHESS V. DOVEY 11

prescribed plaintiff Naprosyn/Naproxen

[Aleve] and aspirin to treat his pain.

On direct examination Dr. Dial did not mention HDSP’s

narcotics policy as a basis for ending Chess’s methadone

prescription. Instead, he testified that he ended it because of

the danger it posed to Chess:

I remember stopping the medicine. Not every

one, but some. And I heard earlier one of

them is the methadone. . . . And there’s a

reason for that. At that time people were

dying from methadone. Not by the hundreds,

but by the thousands.

Dr. Dial said there were two bases for his characterization of

methadone as posing a danger. He described a warning from

the U.S. Food and Drug Administration, and was about to

describe another when the judge cut him off, saying “we

don’t have a question.” On cross examination, defendants’

attorney described, one by one, all of the medical conditions

from which Chess suffered, and as to each one, asked whether

that condition was treated with methadone. Dr. Dial

answered “no” each time. The attorney then asked, “Was

your decision to discontinue Mr. Chess’s methadone

prescription based on the ‘no narcotics’ policy that was in

place at the present time?” Dr. Dial answered, “Correct.”

Dr. Daniel James was involved in Chess’s initial

treatment in the CTC and in processing at least one of

Chess’s internal administrative appeals, but he had no

memory of treating Chess. He testified based solely on

Chess’s medical records. Dr. James mentioned methadone

only once, in response to questions by the judge:
12 CHESS V. DOVEY

Q: [T]here doesn’t appear to be any mention

in your treatment notes about any gradual

reduction or change in the methadone

prescription like there was with the Klonopin. 

Why is that?

A: I think that withdrawal from a narcotic

doesn’t involve the same kind of risk of

seizures is the main thing.

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

A: No, I can’t answer that. I’m not sure why

it wasn’t. And I don’t have my whole

records.

Dr. James never mentioned HDSP’s narcotics policy in his

testimony.

Dr. Salahuddin Abdur-Rahman treated Chess several

times at HDSP. He was asked about two specific occasions

during which Chess was experiencing pain, and about the

appropriateness of methadone as treatment for the pain. The

first was on July 4, 2007, when Chess had been prescribed

gabapentin, a neuropathic pain reliever. Dr. Abdur-Rahman

was asked whether he saw anything that indicated “that he

needed something stronger, such as methadone.” He

answered, “I did not.” The second was on September 5,

2007, when Chess had been prescribed morphine for pain

after an upper gastrointestinal endoscopy. Dr. AbdurRahman was asked whether he had “any information”

indicating that the morphine was “inadequate to address any

complaints of pain.” He answered, “I did not.” Then, as a

catch-all question, Dr. Abdur-Rahman was asked, “On all
CHESS V. DOVEY 13

those occasions that you saw Mr. Chess or reviewed his

medical records, did you have any information from which

you could conclude that he required methadone or stronger

pain medication?” He answered, “I did not.” Dr. AbdurRahman never mentioned HDSP’s narcotics policy in his

testimony.

MaryMiller, a nurse practitioner, treated Chess on several

occasions during his time at HDSP. Ms. Miller first treated

Chess in the CTC, shortly after his arrival. According to a

stipulation in the pretrial order, “On November 22, 2006,

defendant nurse practitioner Miller examined plaintiff and

carried out defendant Dr. Dial’s orders.” Defendants’ counsel

asked, “Was there anything during your examination of Mr.

Chess on that first visit that indicated to you that he needed

methadone to address his complaints of pain?” She

answered, “No.” She was asked at two points later in her

testimony whether methadone was an appropriate treatment

for Chess. She answered “no” each time. Finally, she was

asked whether the prison’s narcotics policy was relevant to

her treatment decisions:

Q: On all those occasions that you treated Mr.

Chess, did you decide not to prescribe the

methadone because of the “no narcotics”

policy at the prison?

A: No. I decided that because I didn’t think

it was best for him.

Melody French, another nurse practitioner, treated Chess

on several occasions. Methadone was mentioned three times

during her testimony. First, Ms. French testified that

methadone does not adversely affect liver function any more
14 CHESS V. DOVEY

than any other medication. Second, she testified that Chess

had asked for methadone as treatment for the pain he was

suffering from his varicocele, and that she had refused. When

asked, “Why would you not treat his varicocele with

methadone?” she answered, “It’s not appropriate.” Finally,

she was asked a catch-all question:

Q: On all those occasions that you either saw

Mr. Chess or reviewed his medical records,

was there any evidence from which you can

conclude that methadone was indicated to

treat any of his complaints?

A: No.

Ms. French did not mention HDSP’s narcotics policy in her

testimony.

Gilian Dudley, a physician assistant, met with Chess once

to address an administrative complaint and she treated him on

two occasions. In March 2007, she interviewed Chess in

connection with an administrative appeal. Nothing in Chess’s

medical record indicated to Ms. Dudley that he needed

methadone. In October 2007, she increased his dosage of

gabapentin. In November 2007, following his return from an

outside hospital, she continued a prescription of morphine

that had been initiated at the hospital. She testified that on

both occasions the medication she prescribed was sufficient

to treat Chess’s pain, and that methadone was not needed. 

Ms. Dudley did not mention HDSP’s narcotics policy in her

testimony.

Finally, Anita David, another physician assistant, treated

Chess on several occasions. One of them was in November
CHESS V. DOVEY 15

2007, when she prescribed Chess decreasing doses of

morphine following his return from the outside hospital. 

Methadone was mentioned only once in Ms. David’s

testimony, in connection with her treatment of Chess on April

2, 2007. She testified that Chess did not require methadone

for his pain on that occasion. Ms. David did not mention

HDSP’s narcotics policy in her testimony.

Throughout his stay at HDSP, defendants continued to

provide non-narcotic painkillers to Chess. On at least two

occasions, they gave him a narcotic drug, morphine, for

specific conditions, but they never gave him methadone. It is

not entirely clear from the transcript if Chess was a patient in

the CTC when he was given morphine, but we infer that he

was. In their testimony, defendants attributed unnecessary

pain Chess might have experienced while he was at HDSP to

his “noncompliance.” It is undisputed that Chess often

refused to take the medication provided to him. Chess

acknowledged that he did not take naproxen at all, and

refused to continue taking gabapentin because, in his view,

these drugs were harmful to his liver.

Chess complained on several occasions that the nonnarcotic pain medicine he received was damaging his liver. 

Defendants testified, however, that the medications they

prescribed posed no harm to his liver. For example, Ms.

David testified that she did not worry that gabapentin would

harm Chess’s liver because it is “eliminated a hundred

percent through the kidney.” Defendants did acknowledge

one prescription that might have harmed Chess’s liver. Dr.

Mayer Horensten, whom Chess did not name as a defendant

and who did not testify, ordered a dosage of Tylenol that

could have harmed his liver if Chess had taken it as
16 CHESS V. DOVEY

prescribed. It is unclear from the record, however, how

much, if any, Tylenol Chess took pursuant to the prescription.

C. The Jury Instruction

The magistrate judge solicited the parties’ views on jury

instructions. Defendants proposed an instruction identical to

the Ninth Circuit model instruction entitled, “Prisoner’s

Claim [Regarding] Conditions of Confinement/Medical

Care.” See Ninth Cir. Model Jury Instr. § 9.25 (2010 ed.). 

The proposed instruction, which was ultimately given,

described the elements of deliberate indifference and then

included the following language:

In determining whether the defendants

violated the plaintiff’s rights as alleged, you

should give deference to prison officials in the

adoption and execution of policies and

practices that in their judgment are needed to

preserve discipline and to maintain internal

security.

This language was added to the model instruction in the wake

of our decision in Norwood v. Vance, 591 F.3d 1062 (9th Cir.

2010). See Ninth Cir. Model Civ. Jury Instr. § 9.25 cmt.

Before approving the proposed juryinstructions, the judge

asked Chess if he had reviewed them and was prepared to

state any objections. Chess answered that he had reviewed

them but was not prepared to object. The judge made it clear

that Chess should object at the next opportunity if he did not

like the instructions.
CHESS V. DOVEY 17

The next day, after defendants’ counsel argued in favor of

the instruction, the judge expressed misgivings about the

deference language. He stated:

Now, I think I sort of know what you’re

trying to touch upon in including that

proposed language, and maybe that proposed

language might be appropriate if the

defendants in front of us were prison

administrators who were trying to be—or who

a plaintiff was trying to hold liable because of

policies they had implemented.

But how does that language apply to these

defendants? They can’t take policy into

consideration in deciding whether or not to

provide constitutionally adequate medical

care.

Defendants’ counsel went back and forth with the judge

about the applicability of the deference language in the

circumstances of this case. The judge indicated that he was

“considering striking [the deference] language” and asked

Chess to weigh in again. Chess responded: “I don’t quite

understand exactly, but I don’t have any—I’m going to leave

that up to you.”

Later that day, the judge raised the instruction issue once

more. He noted that the deference language was added to the

model instruction after our decision in Norwood, which was

a conditions of confinement case. But he thought “an

argument can definitely be made that [Norwood] does not

require the inclusion of that language when the question is an

Eighth Amendment adequate medical care claim as opposed
18 CHESS V. DOVEY

to an Eighth Amendment excessive use of force or other

conditions of confinement claim.” He expressed skepticism

that it applied to medical care cases given that “[a] medical

care claim really is not a classic conditions of confinement

claim.” He indicated that if it were up to him, he might not

extend it to this case and speculated that the circuit court

might someday address the issue. Ultimately, however, he

approved the instruction because it was based on the Ninth

Circuit model instruction and because “it is at least arguable

in this context that we may be in that gray area where policy

and medical care or that medical care decisions have to at

least take into some account, to some degree, policy issues.”

D. Verdict, Judgment, and Appeal

After the judge denied defendants’ motion for judgment

as a matter of law, the jury returned a verdict for defendants,

upon which the judge entered judgment. Chess timely

appealed. We appointed counsel for Chess on appeal.

II. Standard of Review

Defendants argue that we should not review Chess’s

challenge to the jury instruction because he waived it by

failing to make a timely objection in the trial court. Chess

argues that we should review his challenge de novo, or at

least for plain error. We hold, in the circumstances of this

case, that we should review the instruction de novo. Because

the judge comprehensively articulated the problem with the

instruction from Chess’s point of view, and because Chess, a

pro se litigant, effectively gave the judge his proxy, a formal

objection was unnecessary. Consequently, we hold that we

should review the jury instruction as if Chess had objected to

it. Because Chess contends that the instruction is an incorrect
CHESS V. DOVEY 19

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

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

we will not reverse the judgment against Chess if the error

was harmless. See id. at 1182.

A brief overview of our past and present practice of

reviewing jury instructions will help explain our holding. 

Federal Rule of Civil Procedure 51 requires that a “party who

objects to an instruction or the failure to give an instruction

must do so on the record, stating distinctly the matter

objected to and the grounds for the objection.” Fed. R. Civ.

P. 51(c)(1). When a party raises a contemporaneous

objection to a jury instruction, we review the jury instruction

either de novo or for abuse of discretion, depending on the

nature of the error. See Abromson v. Am. Pac. Corp.,

114 F.3d 898, 902 (9th Cir. 1997) (abuse of discretion review

of the trial court’s formulation of civil jury instructions);

Mockler v. Multnomah Cnty., 140 F.3d 808, 812 (9th Cir.

1998) (de novo review of civil jury instructions that misstate

the law).

We approach unpreserved challenges differently. In the

past, we refused to review challenges to jury instructions in

civil cases where the party challenging the instruction failed

to raise a timely objection in the trial court. See Hammer v.

Gross, 932 F.2d 842, 847 (9th Cir. 1991) (en banc) (“This

court has . . . declared that there is no ‘plain error’ exception

in civil cases in this circuit.”). But even in those days, when

we “enjoyed a reputation as the strictest enforcer of Rule 51,”

id., we “acknowledged a limited exception to our strict

interpretation of Rule 51.” McGonigle v. Combs, 968 F.2d

810, 823 (9th Cir. 1992). We would review challenges to

jury instructions under our ordinary standards of review,

without requiring a plaintiff to make a “futile formal
20 CHESS V. DOVEY

objection,” “[w]here the district court [wa]s aware of a

party’s concerns with an instruction, and further objection

would [have] be[en] unavailing.” Id. This practice came to

be known as the “pointless formality” exception. See Payne,

944 F.2d at 1464.

We changed our review of jury instructions after

Congress amended Rule 51 in 2003 to provide for plain error

review in civil cases. See Fed. R. Civ. P. 51(d)(2). Now,

when a litigant in a civil trial fails to object to a jury

instruction, we may review the challenged jury instruction for

plain error. C.B. v. City of Sonora, 769 F.3d 1005, 1016 (9th

Cir. 2014) (en banc).

The pointless formality exception has survived the 2003

amendment to Rule 51. Cf. Norwood, 591 F.3d at 1066

(rejecting the argument that the appellant failed to preserve an

objection to a jury instruction because “[a]n objection need

not be formal” and “raising the issue again via formal

objection would be both unavailing and a pointless

formality”) (internal quotation marks and citations omitted));

Citrus El Dorado, LLC v. Stearns Bank, 552 F. App’x 625,

627 (9th Cir. 2014) (“We need not decide whether an

objection was preserved under the ‘pointless formality’

exception, because the instruction was plain error.” (citation

omitted)). The only thing that has changed is the general rule

from which the exception is taken. Previously the general

rule was forfeiture; now it is plain error review.

In this case, an objection by Chess to the instruction now

at issue would have been the functional equivalent of a

pointless formality. An “objection may be a ‘pointless

formality’ when (1) throughout the trial the party argued the

disputed matter with the court, (2) it is clear from the record
CHESS V. DOVEY 21

that the court knew the party’s grounds for disagreement with

the instruction, and (3) the party offered an alternative

instruction.” Payne, 944 F.2d at 1464. There can be no

doubt that the trial court knew which part of the instruction

was problematic and knew the specific reasons why. On two

separate occasions, the judge articulated the potential

problems with the deference language in the proposed jury

instruction: (1) it was irrelevant because Chess was suing

prison doctors, and not the administrators who adopted the

narcotics policy; and (2) it was inappropriate in medical care

cases, as distinct from excessive force and conditions of

confinement cases. The judge also recognized the relevant

authority, the Norwood case. The judge was right when he

said, “I did identify the main issue raised by the inclusion of

that language in a case such as this.”

It does not matter that Chess did not “argue[] the disputed

matter with the court.” Medtronic, Inc. v. White, 526 F.3d

487, 495 (9th Cir. 2008) (quoting Glover v. BIC Corp., 6 F.3d

1318, 1326 (9th Cir. 1993)). Although Chess—who was

unrepresented—did not raise the issue himself, the judge

understood it and, in effect, argued it on his behalf. The

judge characterized the problem from the standpoint of

someone in Chess’s position, and Chess deferred to the judge. 

Nor was it necessary for Chess himself to have offered an

“alternative instruction,” id., for the judge proposed the

alternative: strike the deference language and leave the rest of

the instruction intact. See Payne, 944 F.2d at 1464.

We will not punish a pro se litigant with plain error rather

than de novo review simply because he failed to say the

words “I object” when the trial judge and defendants knew

why the instruction might be erroneous and what the

objection would have been. Reviewing for plain error in this
22 CHESS V. DOVEY

case would run contrary to our “duty to ensure that pro se

litigants do not lose their right to a hearing on the merits of

their claim due to ignorance of technical procedural

requirements.” Balistreri v. Pacifica Police Dep’t, 901 F.2d

696, 699 (9th Cir. 1990). Further, plain error review would

do nothing to advance the purpose of Rule 51, which is “to

enable the trial judge to avoid error by affording him an

opportunity to correct statements and avoid omissions in his

charge before the cause has been decided by the jury.” Inv.

Serv. Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir.

1975); see also Palmer v. Hoffman, 318 U.S. 109, 119 (1943)

(“In fairness to the trial court and to the parties, objections to

a charge must be sufficiently specific to bring into focus the

precise nature of the alleged error.”). Here, Chess did not

attempt to “sandbag” the trial judge by failing to object in

order to take out insurance against an adverse verdict. See

Elder v. Holloway, 984 F.2d 991, 998 (9th Cir. 1993)

(Kozinski, J., dissenting) (the purpose of Rule 51 is to

preclude parties from “sandbag[ging]” the trial judge to get

“two bites at the apple”). Chess was confused and legally

unsophisticated. But the judge and defendants’ lawyer were

not. They knew what the problem was and debated the issue

vigorously. In these circumstances, any objection by Chess

would have been “‘superfluous and futile,’” and plain error

review would be too harsh a sanction for failure to object.

Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1289 (9th

Cir. 2014) (quoting Dorn v. Burlington N. Santa Fe R.R. Co.,

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

III. Analysis of the Jury Instruction 

After informing the jury of the elements Chess needed to

prove to prevail on his claims, the magistrate judge added a

deference instruction. He directed the jury, pursuant to our
CHESS V. DOVEY 23

circuit’s model instruction, to “give deference to prison

officials in the adoption and execution of policies and

practices that in their judgment are needed to preserve

discipline and to maintain internal security.” The magistrate

judge was right to doubt the relevance, and hence the

propriety, of this instruction. See United States v. Warren,

984 F.2d 325, 327 n.3 (9th Cir. 1993) (“Use of a model jury

instruction does not preclude a finding of error.”). For the

reasons that follow, we conclude that trial judges in prison

medical care cases should not instruct jurors to defer to the

adoption and implementation of security-based prison

policies, unless a party’s presentation of the case draws a

plausible connection between a security-based policy or

practice and the challenged medical care decision. No other

circuit routinely requires this additional deference in all

medical care cases,1 and neither should we.

A. The Instruction

The deference language at issue in this case derives from

Whitley v. Albers, 475 U.S. 312, 321–22 (1986). In that case,

an inmate alleged that he was subject to cruel and unusual

punishment when he was shot by a prison guard during a riot

in which another guard was taken hostage. Id. At 316–17. 

1 The Ninth Circuit’s model jury instructions are also unique in

including the deference language in Eighth Amendment conditions-ofconfinement cases. Except for language in a Fifth Circuit model

instruction, see Pattern Jury Instr., Civ., 5th Cir., § 10.7 (2014), and a

model instruction developed by a district judge on the First Circuit, the

deference language does not appear in any other circuit’s model

instructions for prisoner rights’ claims. See, e.g., Instr. for Civ. Rights

Claims under § 1983, 3d Cir., §§ 4.10, 4.11.1 (2014); Fed. Civ. Jury Instr.

of 7th Cir., §§ 7.14, 7.15 (2009 rev.); 8th Cir. Civ. Jury Instr., §§ 4.42,

4.43 (2014); 11th Cir. Civ. Pattern Jury Instr., §§ 5.3, 5.4, 5.5 (2013).
24 CHESS V. DOVEY

The Supreme Court adopted a heightened subjective standard

for excessive force claims—malicious and sadistic—instead

of the subjective standard governing medical care cases—

deliberate indifference. Id. at 320–21. The asymmetry was

appropriate, the Court explained, because “the State’s

responsibility to attend to the medical needs of prisoners does

not ordinarily clash with other equally important

governmental responsibilities.” Id. at 320. In contrast, when

prison officials decide to use force to restore order, they act

“in haste, under pressure” and must balance competing

institutional concerns for the safety of prison staff or other

inmates. Id.

As a result of Whitley, our circuit’s model jury instruction

for prisoners’ excessive force claims directs jurors to “give

deference to prison officials in the adoption and execution of

policies and practices that in their judgment are needed to

preserve discipline and to maintain internal security in a

prison.” Ninth Cir. Model Civ. Jury Instr. § 9.24 (2013 ed.);

see Norwood, 591 F.3d at 1067. In Norwood, a divided panel

of this court held that the deference instruction must be given,

not only in excessive force cases, but also in conditions of

confinement cases. Id. (“Prison officials are entitled to

deference whether a prisoner challenges excessive force or

conditions of confinement.”). However, we said nothing in

Norwood about medical care cases.

We see nothing in the reasoning of Norwood that leads us

generally to require its deference instruction in medical care

cases. First, Norwood derived the deference language from

Bell v. Wolfish, 441 U.S. 520 (1979), which was “itself a

conditions of confinement case.” Norwood, 591 F.3d at

1067. We cannot do the same derivation here, for the
CHESS V. DOVEY 25

Supreme Court has not used the same deference language in

a medical care case.

Second, and more important, security considerations are

usually not present in medical care cases. In the great

majority of medical cases, the plaintiff does not point to a

security-based practice or policy as the source of his or her

harm, and defendants in such cases do not defend their

actions on the basis of such a practice or policy. Rather, in

the typical case, the plaintiff challenges prison medical staff’s

refusal or failure to provide certain care. The refusal or

failure to provide such care is sometimes based on an

administrative policy, but these policies typically do not

relate to security or discipline. See, e.g., Colwell v.

Bannister, 763 F.3d 1060, 1063–64 (9th Cir. 2014) (“It is the

policy of the Department that inmates with cataracts will be

evaluated on a case by case basis, taking into consideration

their ability to function within their current living

environment.” (quoting the prison’s policy)); Snow v.

McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (describing the

factors a prison medical review board was to consider in

deciding whether to approve significant medical procedures,

such as “the length of the inmate’s remaining sentence, how

well the inmate is able to perform activities of daily living,

the available resources, and the risks and benefits of the

proposal”), overruled by Peralta v. Dillard, 744 F.3d 1076

(9th Cir. 2014) (en banc). In these circumstances, where the

parties do not put into issue a security-based policy, the

deference instruction has no “foundation in the evidence” and

should not be given. Clem, 566 F.3d at 1181 (quoting Dang

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

Third, the Norwood panel reasoned that it made sense to

use the deference instruction, which we already use in cases
26 CHESS V. DOVEY

of excessive force, in cases dealing with conditions of

confinement because the use of force and restrictive

confinement (which was at issue in Norwood) “are often flip

sides of the same coin: A more restrictive confinement may

diminish the need for force and vice versa.” Norwood,

591 F.3d at 1067. In our view, medical treatment is quite a

different currency. It is different because “the State’s

responsibility to attend to the medical needs of prisoners does

not ordinarily clash with other equally important

governmental responsibilities.” Whitley, 475 U.S. at 320; see

also Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983)

(“[T]he policy of deferring to the judgment of prison officials

in matters of prison discipline and security does not usually

apply in the context of medical care to the same degree as in

other contexts.”). And decisions about medical care and

policy are not ordinarily made in haste or under stress, unlike

many decisions about the use of force or restrictive

confinement. Consequently, “[t]he requirement of deliberate

indifference is less stringent in cases involving a prisoner’s

medical needs than in other cases involving harm to

incarcerated individuals.” McGuckin v. Smith, 974 F.2d

1050, 1060 (9th Cir. 1992), overruled in part on other

grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136

(9th Cir. 1997) (en banc). For this reason, in the great

majority of cases, “‘[i]n deciding whether there has been

deliberate indifference to an inmate’s serious medical needs,

we need not defer to the judgment of prison doctors or

administrators.’” Colwell, 763 F.3d at 1066 (quoting Hunt v.

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

While the Norwood instruction is inappropriate in most

medical care cases, Norwood’s logic leads us to recognize

that the instruction may sometimes, though rarely, be

appropriate. We must be attentive to the differences among
CHESS V. DOVEY 27

medical cases. Cf. Whitley, 475 U.S. at 320 (claims under the

Eighth Amendment must be analyzed “with due regard for

differences in the kind of conduct against which an Eighth

Amendment objection is lodged”). Not all of them are

ordinary. There may be outlier cases in which medical care

and security concerns genuinely clash and prison personnel

must make their medical care decisions in light of those

concerns. See, e.g., Clement v. Gomez, 298 F.3d 898, 905 n.4

(9th Cir. 2002) (defendants delayed treating inmates exposed

to the pepper spray they used to stop a fight because they

needed to maintain order first, which made the case

“differ[ent] from most cases involving the deprivation of

medical needs”). In those situations, prison officials will

have to balance prisoner health and safety against “competing

institutional concerns for the safety of prison staff or other

inmates.” Whitley, 475 U.S. at 320. Because this balancing

requires the “expert judgments” of prison officials, these

decisions are “entitled to deference,” just as they are in

conditions of confinement cases. Norwood, 591 F.3d at 1067;

see Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014) (en

banc) (“When evaluating medical care and deliberate

indifference, security considerations inherent in the

functioning of a penological institution must be given

significant weight.”); see also Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1518

(2012) (“The Court has held that deference must be given to

the officials in charge of the jail unless there is ‘substantial

evidence’ demonstrating their response to the situation is

exaggerated.” (quoting Block v. Rutherford, 468 U.S. 576,

584–85 (1984))).

In light of the foregoing, we hold that a trial judge may

instruct a jury to defer to a policy or practice adopted and

implemented by prison officials only when that policy or
28 CHESS V. DOVEY

practice addresses bona fide safety and security concerns, and

when there is evidence that the challenged medical decision

was made pursuant to that security-based policy or practice. 

Put another way, the trial judge in an Eighth Amendment

medical care case should not give the deference instruction

unless one party’s presentation of the case plausibly draws a

connection between the security-based policy or practice and

the medical care decision at issue.

In Chess’s case, this connection was lacking. It was

therefore error for the magistrate judge to give the deference

instruction. Chess alleged that defendants denied him

methadone solely because a High Desert State Prison policy

prohibits general population inmates from receiving that

medication. But, crucially, he did not introduce any evidence

at trial that the narcotics policy affected the key decision he

challenged—defendants’ decision to cut off methadone,

rather than tapering it off while he was in the CTC. He

testified that “the whole time I spent in [the CTC] until the

time they did put me in the general population, I was in pain. 

And I don’t know what their real reason was, why they

wouldn’t treat me for pain, but they wouldn’t and they

didn’t.” Chess did not dispute that the narcotics policy

explicitly allowed the administration of methadone in the

CTC. Indeed, he told the jury in his opening statement that,

although defendants claimed that they could not give him

methadone because he was in general population housing,

they could have provided it to him in the CTC. He explained,

“[T]hey have something up there which is called CTC. It’s

a treatment center, like a little hospital. And that’s not the

general population. They could have went and got a

nonformulary drug, just like they did for the Klonopin, to

taper me off of [methadone].” It is true that Chess also

sought a prescription for methadone after he was transferred
CHESS V. DOVEY 29

to the general prison population. Theoretically, then, the

policy could have affected the responses to his subsequent

requests for methadone. But in actuality, Chess presented no

evidence that it did.

On the other side, defendants did not invoke the narcotics

policy to defend their care. In her opening argument,

defendants’ counsel stressed the irrelevance of the narcotics

policy, informing the jury that they would “hear a lot of

testimony from all the defendants that the ‘no narcotics’

policy at High Desert really is irrelevant because all the

evidence showed that [Chess] did not require a medication of

that strength for his complaints of pain.” Indeed, the only

defendant who testified that he relied on the policy in treating

Chess was Dr. Dial. But Dr. Dial saw Chess only once at the

beginning of Chess’s stay in the CTC, and the policy did not

prevent Dr. Dial from giving Chess tapering-off doses of

methadone. Six of the eight defendants were not asked about

the policy and did not independently mention it in the course

of defending their treatment decisions. Except for Dr. Dial,

only Ms. Miller, who treated Chess both during and after his

initial stay in the CTC, addressed the policy as it related to

Chess’s treatment. She specifically denied that she declined

to prescribe the methadone because 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 no reason to think that security

concerns, or the narcotics policy born of those concerns, had

anything to do with defendants’ decision to withhold

methadone while Chess was at HDSP. Therefore, it was error

to issue the deference instruction.
30 CHESS V. DOVEY

B. The Wilson Dicta

In authorizing the use of the deference instruction only in

exceptional medical care cases, we reject defendants’

argument that language in the Supreme Court’s opinion in

Wilson v. Seiter, 501 U.S. 294 (1991), compels us to extend

the Norwood rule to all medical care cases. The Wilson Court

was asked to decide whether a prisoner challenging his

conditions of confinement had to prove that the defendants

had a culpable state of mind, and if so, what that state of mind

had to be. Id. at 296. The Court held that there was a

subjective standard, and that it was the same standard the

Court already applied to medical care cases. Id. at 303.

Defendants point to the following language from Wilson

in support of their claim that medical care claims are a subset

of conditions of confinement claims and that the two must be

treated identically in jury instructions: “[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 his cell, and the protection

he is afforded against other inmates.” Id. The Court also said

in a footnote, “It seems to us, however, that if an individual

prisoner is deprived of needed medical treatment, that is a

condition of his confinement, whether or not the deprivation

is inflicted upon everyone else.” Id. at 299 n.1.

Both sentences are dicta in the service of a different point

than the one defendants seek to make. The first sentence was

the Court’s response to Wilson’s argument that he need not

make a showing as to the defendants’ state of mind, and that

the jury should decide whether the defendants’ conduct was

wanton solely by evaluating the effect of the conditions on

Wilson. The Court rejected this argument because it had
CHESS V. DOVEY 31

alreadydecided in Whitley that wantonness must be evaluated

from the defendant’s point of view. It was “[f]rom that

standpoint” that the court saw “no significant distinction

between claims alleging inadequate medical care and those

alleging inadequate ‘conditions of confinement”; both require

prison officials to make decisions under constraints. Id. at

303.

The second sentence was addressed to the concurring

justices, who argued that there was a legally relevant

distinction to be drawn between “specific acts or omissions

directed at individual prisoners” (which warranted a

subjective inquiry) and systematic “conditions of

confinement” that affected all prisoners (which did not). 

Wilson, 501 U.S. at 309 (White, J., concurring). The majority

used the example of medical care to make the point that

defendants’ conduct, whether directed at one person or many

people, should be evaluated against the same standard.

In both sentences, the Court in Wilson was drawing an

analogy between medical care cases and conditions of

confinement cases to explain why they should both have a

subjective element and why the standard for conditions cases

should be the same as that applied to medical care claims,

rather than that applied to excessive force claims. As the

Court wrote, “Whether one characterizes the treatment

received by [the prisoner] as inhumane conditions of

confinement, failure to attend to his medical needs, or a

combination of both, it is appropriate to apply the ‘deliberate

indifference’ standard articulated in Estelle.” Id. at 303

(majority opinion) (internal quotation marks omitted); see

Hudson v. McMillian, 503 U.S. 1, 8 (1992) (“Wilson extended

the deliberate indifference standard applied to Eighth
32 CHESS V. DOVEY

Amendment claims involving medical care to claims about

conditions of confinement.”).

Defendants’ reading of the Wilson dicta proves too much. 

Prisons are total institutions in which prison personnel control

all aspects of life. Everything an inmate experiences is, at a

general level of abstraction, a condition of his confinement. 

This includes his access to the yard, the medical care he

receives, and the force used to subdue him. Cf. Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (The Eighth Amendment

“also imposes duties on these [prison] officials, who must

provide humane conditions of confinement; prison officials

must ensure that inmates receive adequate food, clothing,

shelter, and medical care, and must ‘take reasonable measures

to guarantee the safety of the inmates.’” (quoting Hudson v.

Palmer, 468 U.S. 517, 526–27 (1984))). But we cannot treat

claims relating to each of these conditions as if they are all

indistinguishable conditions of confinement claims. The

Supreme Court has told us as much: claims related to some

facets of prison life, like the use of force, are subject to a

different standard than others. That is the point of Whitley

and Wilson, and it is a point we recently reconfirmed in

Harrington v. Scribner, No. 09-16951, 2015 WL 2106387 at

*5, *8 n.1 (9th Cir. May 7, 2015), in which we rejected the

use of the Norwood instruction in a case brought by a

prisoner alleging racial discrimination in violation of the

Fourteenth Amendment, over an objection that such alleged

discrimination constituted a condition of confinement.

C. Harmless Error

Although we conclude that the jury instruction was error,

we do not reverse the judgment because defendants have

carried their burden of showing that “it is more probable than
CHESS V. DOVEY 33

not that the jury would have reached the same verdict had it

been properly instructed.” Clem, 566 F.3d at 1182 (internal

citations and quotation marks omitted).

For the reason the instruction was erroneous, it was also

harmless. As we explained above, the narcotics policy at

HDSP did not catagorically prevent Chess from receiving

methadone. Chess was eligible to receive methadone while

he was in the CTC, where he was initially placed. If Chess’s

doctors thought he needed methadone at that time, they could

have given it to him. If they thought he needed it after he

joined the general population, they could have transferred

him back to the CTC to receive it. We know the policy did

not drive defendants’ decision to deny him methadone

because when they thought he needed narcotics, they gave

them to him. Indeed, they prescribed him morphine at least

twice.

All the defendants except Dr. Dial testified that they did

not give Chess methadone because he did not need it. Dr.

Dial said that Chess did not need it, and that it was dangerous. 

He also stated in a one-word answer that the prison policy

forbade it outside the CTC. But the policy was irrelevant to

Dr. Dial’s treatment, for he treated Chess only in the CTC. 

Defendants consistently testified that methadone was not

medically indicated for Chess’s conditions and that none of

the non-narcotic painkillers theyprescribed him were harmful

to his liver. Chess offered only his own non-expert opinion

to counter defendants’ medical opinions.

Defendants saw Chess frequently, ordered several

diagnostic tests, repeatedly adjusted his medications,

proposed surgical interventions, and were otherwise

conscientious in their caregiving. Chess resisted them at
34 CHESS V. DOVEY

almost every turn, refusing to take the medication they

prescribed him and delaying treatments that might have

helped him. We are confident that the jury would have found

for defendants even if it did not receive the deference

instruction.

Conclusion

We hold that the magistrate judge erred in this case in

instructing the jury to defer to prison officials in the adoption

and execution of policies and practices that in their judgment

are needed to preserve discipline and to maintain internal

security. This instruction is inappropriate in medical care

cases brought by prisoners under § 1983, unless a party’s

presentation of the case draws a plausible connection between

a security-based policyor practice and the challenged medical

care decision. Neither party drew such a connection in this

case. However, because this error was harmless, we affirm.

AFFIRMED.