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

C I O N A D O

N I S P E R A L T A , Plaintiff-Appellant

,

v

.

T. C. D I L L

A R D , Chief Dental Officer; S. B R O O K S , D.D.S. Staff Dentist; J

. F I T T E R , Chief Medical Officer,

Defendants-Appellees

. N o. 09-55907

D.C. No. 2:05-cv-01937- J VS-PL A

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ames V. Selna, District J udg e, Presiding

Arg ued and Submitted En B anc September 18, 2013—San F rancisco, California

F iled March 6, 2014

B efore: Alex Koz inski, Chief J udg e, B arry G. Silverman, Susan P. Graber, Richard C. Tallman, J ohnnie B

. Rawlinson, Richard R. Clifton, J ay S. B y bee, Milan D. Smith, J r., Morg a

n Christen, J acqueline H. Ng uy en and Andrew D. Hurwitz , Circuit J udg es.

Opinion by

Chief J udg e Koz inski; Partial Concurrence and Partial Dissent by J udg e Christen; Partial Concurrence and Partial Dissent by J udg e HurwitzP E R A L T A V

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SUMMARY *

P risoner Civil Rights

The en b a nc court affirmed the district court’s judg ment following a jury verdict in favor o f a prison dentist a nd affirmed the district court’s judg ment a s a matte r o f law in favor of prison admi n i s t r a t o rs in a 42 U.S.C. § 1983 action alleg ing deliberate ind i fference to medical needs in connection with a prisoner’s dental care.

The c o u rt held that a prison official sued for money damag es u nder § 1983 may raise a lack of available resources

as a defense. The c ourt held t h a t the district court’s challeng ed jury instr u c tion in this case properly advised the jury to consider the resources that the prison d en t i s t h ad available when determining if he was deliberately indifferent. The c ourt held that to the ex tent the court’s prior decisions in Jones v

. Johnson

, 781 F .2d 769 ( 9th Cir. 1986), and Snow v

. M c D a n iel

, 681 F .3d 978 (9th Cir. 2 012), could be rea d t o apply to m o n e tary damag es ag ainst a n official who lacks authority over budg eting decisions, they were overruled.

The c ourt held that the j u r y h ad sufficient evidence on which to base a finding that a l a c k of r esources caused any d e lay in providing care. The court further held that t h e district court did not err by g ranting judg ment as a matter o f law in f avor of Dr. F itter, the prison’s Chief Medical Officer and Dr. Dillard, the Chief Dental Officer.

* T h is su m m ary co n stitu

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

co u rt staf

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

th e read er.P E R A L T A V

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The cou rt held that the district court’s prior decision refusing to g rant F it t e r and Dillard summary judg ment did not, under law of the case, preclude the district court from reconsidering its pretrial ruling

. Dissenting in part and c oncurring in p art, J udg e Christen, j o i n ed by J udg es Rawlinson, M. Smith, and Hurwitz a n d J udg e B y b ee as to parts I
, I I
, and I I I
, s t a ted that the decision overturned more than thirty y e a r s of circuit precedent b y holding that l a c k of r esources is a defense to providing constitutionally inadequate c are for p risoners. She joined the majority in affirming the dismi s s al of plaintiff’s c laims
ag ainst Dr. F itter, but she disa gr e e d with the majority ’s conclusio n t hat a directed verdict w as appropriate on plaintiff’s claims ag ainst Dr. Dillard.

Dissenting in part and concurring in p art, J udg e Hurwitz

, joined by J udg es Rawlinson, M. Smith and Christen, a nd J udg e B y bee as to p arts I and I I
, state d t h a t the majority effectively

held that a state can first c h oose to u nderfund the medical treatment of its wards, and t h en ex cuse the Eig hth Am e ndment violations caused by the underfunding

. J udg e Hurwitz stated that a s to Dr. F itter, the majority correctly h eld that he was entitled to q

ualified immunity as he had relied on his staff’s medical judg ment.

COUNSEL

Derek Milosavljevic (arg u ed), Kirkland & Ellis L L P
, L os Ang eles, California, for Plaintiff-Appellant.

J anine K. J effery (arg

ued) and Oren Rosentha l

, Reily & J effery , Northridg e, California, for Defendants-Appellees.P E R A L T A V

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Melinda B ird a

nd M o nisha Coelho, Disability Rig hts California, L os Ang eles, California; Donald Specter a nd Kelly Knapp, Prison L aw Office, B e r keley

, California; Ernest Galvan and L isa Ells, Rosen B ien Galvan & Grunfeld, L L P, San F rancisco, California; Paula D. Pearlman and Michelle Uz eta, D isability Rig hts L e g al Center, L os Ang eles, California, for Ami c us Curiae Disability Rig hts California, Disability Rig hts L eg al Center, Prison L aw Office, and Rosen B ien Galvan & Grunfeld, L L P.

OP INION

Chief J u dg e KOZ I

NSKI delivered t h e o pinion of the court, which is joined in full by J udg es SI L VERMAN, GRAB ER, TAL L MAN, CL I F TON and NGUYEN. J udg e B YB E E joins Part I I .B

.

KOZ I NSKI , Chief J udg e :

W e c o n s i d e r whether prison officials sued for money damag es u nder 42 U.S.C. § 1983 may raise a lack of available resources as a defense.

I. Background

At the time Cion Adonis Per a lta a rrived at California State Prison, L os Ang eles County (L ancaster), the prison h ad only three or four dentists a n d three or four d ental assistants. I t had n o o ffice technicians or d ental hy g ienists. State p olicy calls for on e d entist for every 950 prisoners, but the ratio at L ancaster was closer to one to 1,500. I n addition, the dentists th e r e were responsible f or roug hly 1,800 inmates at other facilities, bring ing the ratio to around one to 2,000.P E R A L T A V

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P e ralta requested d ental care almost immediately

. H e complained t h a t h i s teeth hurt, he had c avities and h is g ums

were b leeding

. W hen he h adn’t received care a fe w w e eks after his initial request, Peralta fi l e d a w ritten a ppeal, in which he ag ain claimed that he had c avities and severe pain. I n the informal respons e to that appeal, Peralta was put on a waiting list, which was g e n e r ally nine to twelve months long

.

Peralta then p ursued a formal appeal. He was subsequently interviewed by D r. B rooks, a staff dentist. B rooks asked Peralta which tooth h urt most, took X-ray s a nd scheduled Peralta for an ex traction of that tooth. B rooks also
g ave Peralta a few day s’ supply of I buprofen. Dissatisfied, Peralta filed a second-level appeal a few day s later, and was told that “further treatment [ would] be provided based on the waiting list.”

About three months after his initial interview, Peralta h ad his second visit with B rooks. During that visit, Peralta was supposed to h ave the scheduled ex traction, but he declined to g o throug h w ith it after B rooks t o l d h i m removal was unnecessary

. B rooks g ave Peralta more I buprofen a

nd medication for an infection. Eleven months after that, B rooks

saw Peralta a g a in and took X-ray s, reviewed Peralta’s history and cleaned his teeth.

After Peralta d e c lined to h a v e his tooth ex tracted, but before his clea n i n g, he filed this section 1983 lawsuit for
money damag e s ag ainst B rooks; the pri son’s Chief Dental Officer, Dr. Dillard; and the Chief Medical Officer, D r. F itter. He claimed that their deliberate indifference t o his serious medical needs violated his Eig hth A mend m e n t rig hts. See 42 U .S.C. § 1983. I n the end, his claims amounted to a several -month delay in g e tting his teeth c leaned and anP E R A L T A V

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alleg ed failure to t r e a t h i s pain. T hese claims went to trial, but after Peralta p r esented h is case, the district court g ranted directe d v e rdicts to Dillard and F itter. The jury found for B rooks. Peralta challeng es the jury instruction, a s well as the judg ment in favor of Dillard and F itter.

II. Discussion

Prison officials violate the Eig hth Amendment if they a re “deliberate[ ly ] indifferen[ t] to [ a prisoner’s] serious medical

ne ed s

. ” E

s telle v. Gamble

, 4 29 U.S. 97, 104 (1976). A medical need is serious if failure to trea t i t w ill result in “‘sig nificant injury or the unnecessary and wanton infliction of pain.’” Jett v. Penner
, 439 F. 3d 1091, 1096 (9th Cir. 2006) ( quoting McGuckin v. Smith

, 974 F .2d 1050, 1059 (9th Cir. 1 992), overruled on other grounds b y W MX Techs., Inc.

v. M iller

, 104 F .3d 1133 (9th Cir. 1997) (en banc)). A prison official is deliberately indifferent to that need if he “knows o f and disreg ards an ex cessive r isk to inmate health.” Farmer v. Brennan , 511 U.S. 825, 837 (1994).

A. “Cost Def

ense” Jury Instruction

The court instructed the jury that “ [ w ] hether a dentist o r doctor met his duties to P l a i n t iff Peralta under the Eig hth Amendment must b e considered in the contex t o f the
p ersonnel, financial, a

n d other resources available to him o r her o r w hich he o r s h e could r easonably obtain.” T he court also told the jury that “[ a] doctor or dentist is not responsible for services which he or she could n ot r e nder or cau s e t o be rendered because the necessary personnel, financial, a nd oth e r r e sources were not available

. . . or which he or she could not reasonably

obtain.”P E R A L T A V

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W e r eview a district court’s f o r m u lation of civil jury instructions f

o r abuse of discretion, Dang v. Cross
, 422 F .3d 800, 804 (9th Cir. 2005), but we review de novo whether an instruction states the law correctly

, Clem v. Lomeli

, 566 F .3d 1177, 1180–81 (9th Cir. 2 0 09). J ury instructions must be

s upported by the evidence, fairly and adequately c ov e r t h e i s sues presented, correctly state the law, and not b e misleading

. Id. at 1181.

1. The Instruction’s Statem e nt of the Law

The Supreme Court has not said whether juries a nd judg e s may consider a lack of resources as a defense in section 1983 actions. See W

ilson v. S

e i t e r , 501 U.S. 294, 302 (1991) (“[ T] he validity of a ‘cost’ defense a s n eg ating the requisite intent is not a t i s s u e in this c a se

. . . .”); see a lso H arris v. Angelina Cnty.
, 31 F .3d 331, 3 36 (5th Cir

. 1 9 9 4). B ut the Court has told us that prison officials aren’ t deliberately indifferent to a prisoner’s medical ne e d s unless they act

w a n t o n ly

, see Estelle

, 4 29 U.S. at 104, a nd whether an official’s conduct “can be characteriz ed as ‘wanton’ depends upon the constraints facing [ him]

, ” W

ilson

, 501 U.S. at 303. The Court has also told us t h at, e v en if an official knows o f

a substantial risk, he’s not liable “ if [ he] responded reasonably .” Farmer , 511 U.S. at 844.

W h at is reasonable depends o n the circumstances, which normally constrain what actions a state official can take. This

case is a fine ex ample. Peralta rests his cl a i m on having to wait for dental care, but p risons a re a particularly d ifficult place to provide such care. Security concerns dictate that only one prisoner be in the ex amination room at a time, even if there’s more than one chair, and t hat no prisoner b e left alone, lest he try to use dental tools as weapons. F urtherP E R A L T A V

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ex a c erbating the problem, o nly emerg ency cases can b e seen when the p rison is in l ockdown, and dentists can’t accept prisone r s’ complaints at face value, as inmates o f ten try to jump the line by

ex ag g erating their sy

mptoms.

These c h alleng es a side, there simply w eren’t enoug h dentists at L ancast e r t o provide every prisoner w ith dental

care on demand. The r atio of dentists to p r i s o n e r s was less than half w hat the state said it should be, there were no office technicians o r d e ntal hy g ienists and, o n many occasions, B rooks h a d no dental assistant. Peralta doesn’t arg ue that B rooks was responsible for these constraints. Nor could he, since B rooks had no control over the budg e t.

Peralta would have had the jury ig nore that there was no money o r staff available to treat him immediately

, a n d hold B rooks personally l i a b l e f or failing to g ive Peralta care that B rooks would have found impossible to provide. Peralta claims that this approach is compelled by our decisions in Jones v. Johnson

, 7 81 F .2d 769 (9th Cir. 1986), a nd Snow v. McDaniel

, 681 F .3d 9 7 8 (9th Cir. 2012). I n Jones
, we reversed a district court’s dismissal of a pretrial detainee’s deliberate indifference claims because we found “no other

ex p lanation in the record than the b udg et concerns” for deny ing treatment , a n d “[ b] udg e tary constraints

. . . do not justify crue l and unusual punishment.” 781 F .2d at 771. I n Snow
, w e r eversed a d istrict court’s g rant o f summary judg ment in favor of prison officials who delay ed an inmate’s
surg ery , partially due to a l a ck of resources, because the desire to avoid pay ing for a surg ery is an “improper motive[ ] ” for delay ing it. 681 F .3d at 987.

As an en banc court, we’re not bound by either decision. Even if we were, it wouldn’t h e l p Peralta. I n Jones a ndP E R A L T A V

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Snow
, plaintiffs soug ht both money damag es and injunctions. Neither c ase dealt w ith jury instructions; the question in both was whether the case could proceed at all.

L ack of res ources is not a defense to a c laim for prospective r elief b e c ause p rison officials may b e compelled
to ex pand the pool o f e x isting resources in order to remedy continuing Eig hth A mendment violations. S e e L a M arca v. Turner
, 995 F .2d 1 526, 1 536–39, 1 5 42 (11th Cir. 1 993) (prison official wouldn’t be personally liable if he did
every thing he could, but priso n er could g et an injunction
aga inst official in his official c a pacity ); see also W

atson v. City of Memphis

, 373 U.S. 526, 537 (1963) (rejecting
arg ument that city could n ’ t deseg reg ate parks because o f budg etary concerns); W

right v. Rushen

, 642 F .2d 1129, 1134 (9th Cir. 1981) (“[ C] osts cannot be permitted to stand in the
way of e liminating conditions below Eig h t h A mendment standards.”). A case seeking prospective relief thus can’t be dismissed simply

because there is a shortag e of resources.

Damag es are, by contrast, entirely retrospective. They provide r edress for something off i c i a l s could have done but did not. W hat r esources were available is hig hly relevant because they d efine the spectrum of choices that officials h ad
at their disposal

. T o t h e ex tent Jones and Snow can be read
to apply to monetary d a mag es ag a inst an official who lacks authority over budg eting decisions, they are overruled. J udg e Christen claims we a

re also ov e r r u l ing Spain v. Procunier
, 600 F .2d 1 89 (9th Cir. 1979), but this is plainly not so. Spain involved only injunctive r elief; it has n othing to s ay about damag es, much less jury instructions. See id. at 192.

Peralta seeks only damag es. Allowing the jury to consider the constraints under which a n individual do ctorP E R A L T A V

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operates in determining wheth e r he is liable for money damag es beca u s e he was deliberately indifferent d oesn’t

mean that prisoners have no remedy for violations of th eir Eig hth Amendment rig hts. F or ex ample, althoug h prisoners

can ’ t sue states for monetary relief, they can sue for injunctions to correct unconstitutional prison conditions. See W ill v. Mich. Dep’t o

f State Police

, 491 U.S. 58, 71 & n.10 (1989); see also Brown v. Plata , 131 S. Ct. 1910 (2011).

S e ction 1983 also authoriz es prisoners to sue munici p al entities for d amag es if the enforcement of a municipal p olicy

or practice, or the decision of a final municipal policy maker, caused the E i g hth Amendment violation. See City o f St. Louis v. Praprotnik

, 485 U.S. 112
, 1 3 8 (1988); Pembaur v. City of Cincinnati
, 475 U.S. 469, 481 (1986); Monell v. Dep’t of Soc. Servs.
, 436 U.S. 658, 6 63 & n.7, 6 8 5

– 8 6 (1978). A chronic shortag e of resources may well a mount to a policy o r practice for which monetary relief ma y be available under Monell

, but Monell claims can’t be b roug ht ag ainst states, which a re protected b y the Eleventh Am e n d m e nt. See, e.g. , Quern v

. Jordan

, 440 U.S. 332, 3 4 5 (1979). The prison where Peralta was held was, of course, run by the state.

Our dissenti n g c olleag ues would have the jury hold Br o oks liable for delay in treatment caused by shortag e s bey on d h is control, on the theory that the state will wind up pay ing any damag es award. According to the dissenters, this will g ive the state an incentive to improve prison conditions. Christen Dissent 28–30; H urwitz Disse n t 4 3–45. B ut the
state is protect ed from monetary damag es b y the Eleventh Amendment. W e may not circumvent this p r o t ection b y imputing the state’s wrong doing to an employ ee who himself has committed no wrong

. The dissenters attempt an end run around the Eleventh Amendmen t b y subjecting the state toP E R A L T A V

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precisely the k ind o f e conomic pressure ag ainst which the amendment protects it.

W e have no quarrel with the dissenters’ view that Peralta

m a y h ave suffered an Eig hth A mendment violation. I f t h e state p rovided insufficient reso u r c e s to accord inmates adequate medical care, it could be c o mpelled to correct those conditions. See P lata

, 131 S. Ct. 1 910; Spain
, 600 F

. 2d 189. B ut s u c h a lawsuit could provide no redress for past constituti o n al violations because the state is protected b y sovereig n immunity

, “a fund a m e n t a l aspect of the sovereig nty which t h e S t ates enjoy ed before the ratification of the Constitution, a

nd which they

retain today .” Alden v. Maine
, 527 U.S. 706, 713 (1 9 9 9 ). Cong ress could abrog ate this immunity

, but it has not do n e s o for cases broug ht under 42 U.S.C. § 1983. See Quern
, 440 U.S. at 345. W e decline
to bring about by indirection what Cong re s s h as chosen not to do ex pressly

.

An “intent r equirement is e ither implicit in the word ‘punishment’ or is not; it cannot be alt e rn a t e l y required a nd ig nored as policy considerations mig ht di c t a t e.” W ilson

, 501 U .S. at 301–02. T he Supreme Court has told us that it is. A prison medical official who fails to p rovide needed
treatment because he lacks the necessary resources can hardly be said to h a v e i ntended to p u nish the inmate. The challen ged instruction properly a dvised the jury to consider the r esources B rooks had available in determining whether he was deliberately

indifferent.

2. The Evidence Supporting the Jury Instruction

Peralta also arg ues that the jury instruction shouldn’t have been g iven, even if it was c o r r e c t, because there w as noP E R A L T A V

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evidence that budg e tary c o nstraints actually affected his
treatment. Even if Peralta’s arg ument had merit, we would reject it because he invited the error. See U n i t e d States v. Pe r e z , 1 1 6 F .3d 840, 845 (9th Cir. 1997) (en banc). Peralta himself f irst sug g ested that t h e e v idence introduced at trial supported an instruction a b o u t budg etary constraints. He
p r o posed a

n instruction that stated, as did the fina l instruction, tha t “[ e] vidence has been presented during the trial reg arding dental staffi n g levels and the availability o f

resources at the L ancaster correctional f acility where Plaintiff Pe ra lta was incarcerated during the time o f his alleg ed injuries,” but his instruction would have required the jury not t o consider it. Peralta’s proposed instruction presupposed that there was sufficient evidence about the lack of resources at B rooks’s disposal. He c an’t now turn around a nd challeng e the instruction containing some of the very tex t he proposed, on the new theory that it’s unsupported b y the evidence.

I n any eve n t , there’s plenty of e vidence to support a finding that a lack of resources p revented B rooks from cleaning Peralta’s teeth sooner. F or e x ample, in the I nmate Appeal Response, B rooks listed “staffing s h o r tag es bey ond

our control” as an ex planation for the “waiting list for dental procedures.” There was also evidence that the prison had less than half th e n u m b er o f dentists required by law, there were

no dent a l hy g ienists and dentists f requently had to work without dental assistants.

Peralta arg ues that there’s no proof connecting t he staff shortag es to his lack o f care. B ut B rooks test i f i ed that he focused on a prisoner’s mo s t pressing complaint because he didn’t h ave enoug h time, a n d F itter testified that staff shortag es limited the amount of time B r ooks could have spentP E R A L T A V

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w i th Peralta during a

n y visit. Peralta arg ues that B r ook s could at least have p ut him o n the emerg ency list, but t h e decision whether to put an inmate on the emerg ency list calls for a balancing of the inmat e ’s n e eds ag ainst the available

resources and the needs o f other patients. B ecause resources

were limited, putting Per a l t a on the emerg ency list would have d elay ed another prisoner’s treatment. I t was up to the jury to decide whether B rooks was deliberately indifferent b y failing t o p u t P eralta on the emerg ency list, g iven “the personnel, financial, and other resources available to him

. . . or which he . . . could reasonably obtain.”

P e ralta also arg ues that B r o oks had the resources t o prescribe him additional (or different) pain medication. B ut B rooks did prescribe I b u p r ofen, a nd Peralta testified that it helped alleviate his pain. There’s no evidence that Peralta requested further medication, althoug h o ther inmates did so routinely

, until months later when he nex t me t with B r ooks. During this second visit, B r ooks g a ve Peralta more I buprofen and medicine to treat an infection. B r ooks tes t i f i e d that he didn’t see any sig ns of an infection during Peralta’s first visit. The jury had sufficient evidence on which to base a finding that a lack of resources caused any delay in providing dental

care. I t would have been surprising if the jury had concluded otherwise.

B. Judgm ent as a Matter of Law

Peralta a lso c h alleng es the district court’s decision to g rant F itter, the Chief Medical O fficer, and Dillard, the Chief Dental Officer, judg ment as a matter of law. S ee F ed. R. Civ. P. 50(a). J udg ment a s a m a t t e r o f law is warranted “‘when the evidence presented a t trial permits only one reasonable conclusion.’” Torres v. City of Los Angeles

, 548 F .3d 1197,P E R A L T A V

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1205 (9th Cir. 2008) (quoting Santos v. Gates
, 287 F .3d 846, 851 (9th Cir. 2002)). W e review de novo the district court’s d e c i s ion to g rant judg ment a s a matter of law, drawing a l l reasonable inferences in favor of Peralta. Id. at 1205–06.

S upervisors aren’t vicariously liable for constitutional

v i o l a t ions under section 1983. H unt v. D ental Dep’t
, 865 F .2d 198, 200 (9th Cir. 1989). B ut they can be liable for their own conduct. R edman v

. Cnty. o f San Diego
, 942 F .2d 1435, 1445–46 (9th Cir. 1991) (en banc), abrogated o n other grounds by Farmer
, 511 U.S. 825. Consequently

, a prison administrator c an be l i a b l e f or deliberate indifference to a prisoner’s medical needs if he “knowing ly fail[ s] to respond to an inmate’s requests for help.” Jett , 439 F .3d at 1098.

1. Serious m edical need

A medical need is serious if “failure to trea t a prisoner’s condition could result in further sig nific a n t i n jury or the
unnecessary a

nd wanton infliction of pain. ” Id. at 1096 (internal quotation marks omitted). P er alta’s claim arises primarily out of the delay in cle a n i n g his teeth. The mere failure to provide a routin e t o o th cleaning doesn’t create a serious medi c a l need. Hallett v. Morgan
, 296 F .3d 732, 7 4 5

– 4 6 (9th Cir. 2002). The Eig hth A mendment “‘requires neither that prisons be comfortable nor that t h e y p rovide
every amenity that one mig ht fi n d desirable.’” Id. at 745 (quoting Hoptowit v. Ray
, 6 82 F

. 2 d 1 237, 1246 (9th Cir. 1982)).

B u t Peralta alleg es that he w as d enied more than a routine cleaning. H e a lleg es that he had severe pain, infected teeth, cavities and bleeding g ums, and that a cleaning was necessary to trea t t h o s e medical conditions. W e’ve held that theP E R A L T A V

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“ex istence of chr onic and substantial pain” indicates that a prisoner’s medical needs are serious, M cGuckin

, 9 74 F

. 2 d at 1060, and recog niz e d that a delay as short as three months in receiving necessary

dental care can create a g enuine issue o f material fact, H

unt , 865 F .2d at 200–01. Defendants haven’t

c h a l leng ed these precedents, nor disputed before us that Peralta has adequately alleg ed a serious medical need. W e thus assume, without deciding , that this is so.

2. F itter’s Subjective Intent

As the Chief Medical Officer, F itter w as required to—and did—sig n Peralta’s second-level appeal. T he case ag ainst F itter rests entirely on this sig n ature. B ut the fact that F itter sig ned the form doesn’t mean that h e knew about Peralta’s complaints. To be liable, “ the o fficial must b oth be aware o f facts from which the inference could be d rawn that a substantial risk of serious harm ex ists, and he must also draw the inference.” Farmer
, 5 1 1 U .S. at 8 37. Even if a prison official should have been aware of the r is k

, if h e “ was not, then [ he] has not violated the Eig hth Amendment, no matter how severe the risk.” Gibson v. Cnty. o f W a shoe

, 290 F .3d 1175, 1188 (9th Cir. 2002).

Peralta h asn’t sh o w n t hat F itter should have been a ware

o f any r isk to Peralta’s health, let alone that F itter actua l l y

was aware. Althoug h he supervised the dental d e p a rtment, F itter isn’t a d entist, and he d i d n ’ t independently r eview P eralta’s claims or read his chart before sig ning o ff on t h e second-level appeal. I nstead, he relied o n the medical opinions o f the staff dentists w h o had investig ated Peralta’s complaints and already

sig ned off on the treatment plan.P E R A L T A V

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F itter understood his r ole to be larg ely a d ministrative, ensuring that the proper personnel h a d s ig ned off o n a reasonable course of t r e a t ment, n ot second g uessing staff dentists’ medical judg ments. A nd how could he have? Even if he had looked at Peralta’s chart, he w ouldn’t have b een able to tell whether P eralta h ad a serious medical need a nd what the best cou r s e o f treatment was. See Johnson v. Doughty

, 433 F .3d 1001, 1 0 1 1 ( 7 th Cir. 2006); Meloy v. Bachmeier , 302 F .3d 845, 849 (8th Cir. 2002).

Peralta arg ues t h a t a reasonable jury could nevertheless “conclude that by sig n ing off on dental second-level appeals and p l acing inmates b ack on the ex tensive waiting list without reviewing their records

. . . F itter was

. . . deliberately indifferent to the serious risk posed by his actions to inmates in Mr. Peralta’s position .” (emphas i s added); see Redman

, 942 F

. 2d a t 1446. B ut F itter’s d ecision to sig n appeals that he knew had already been reviewed by at l e a s t two qualified dentists, when he had no ex pertise to c o ntribute to that review, isn’t a wanton infliction of un n e c essary pain. See Estelle , 429 U.S. at 104.

3. Dillard’s Subjective Intent

Un l ike F itter, Dillard is a dentist. Althoug h he was required to sig n Peralta’s secon d

- l e v el appeal, he didn’t. I nstead, the appeal was sig ned by Dr. Cassim, a staff medical doctor. Dillar d d i d n ’t review Peralta’s medical r ecords o r meet with h im prior to the fi l i n g o f the lawsuit. Dillard testified that he would a uth o r iz e someone e lse to sig n the second-level r esponses on his behalf when he knew he would be absent from the prison because appea l s h a d to be processed quickly

. As there’s no evidence that DillardP E R A L T A V

. D I L L

A R D 17

participated in Peralta’s treatment, Peralta hasn’t p roven that Dillard was aware of Peralta’s complaints.

Peralta arg ues that the lawsuit itself put Dillard on notice, but he cites no cases holding that the mere filing of a lawsuit

can create independent l iability u nder section 1983. Section 1983 complaints of ten alleg e numerous v iolations,
many of which turn out not to be supported by the evidence. I t w ould be unfair to make s e c t ion 1983 defendants liable merely for failing to sift throug h what are often rambling a nd incoher ent pro se c omplaints to determine the truth o f e ach alleg ation, even before discovery has beg un.

Peralta also arg u e s t h at Dillard was deliberately indifferent to the suffering of prisoners in Peralta’s p o s i tion by having a n on-dentist sig n inmate appeal s a n d f ailing to read them himself. To find for Peralta, a jury would have h ad
to conclude that Dillard’s behavior wasn’t merely neg lig ent, but wanton. See Estelle

, 429 U.S. at 104. At m o s t , P er a lta has shown that Dillard failed to follow re q u i r ed procedures. B ut Dillard’s failure to follow such procedures isn’t, of itself,
enoug h to establish a violation o f Peralta’s constitutional rig hts. See Ramirez v. Galaza

, 334 F .3d 850, 860 (9th Cir. 2003); Mann v

. Adams

, 855 F .2d 639, 640 (9th Cir. 1 988) (order). Peralta must prove b oth (1) that the failure to f ollow procedure put inmates at risk and ( 2) that Dillard a ctually knew that his actions put i n m a t e s a t risk. See Gibson

, 290 F .3d at 1188. There wasn’t enoug h evidence f o r any reasonable juror to draw that conclusion.

L ike F itter, D illard u n d e r stood his role to be administrative. He didn’t think that the Chief Dental Officer

was required to inter v iew p risoners or review medical records, or that he should second-g uess staff dentists’P E R A L T A V

. D I L L

A R D 18

diag noses. Dillard knew that first-level appeals were sig n ed by two staff dentists, in this case Drs. K umar and B rooks, a

nd that another doctor w o uld have reviewed the appeal in his pl a c e to make sure all of the proper procedures were followed. Perhaps Dillard should have known that his actions put prisoners at risk. B ut, “[ i] f a person should h a ve been

aware of the risk, but was n ot, then t h e p e r s on h as not violated the Eig hth A mendment, no matter h o w severe the risk.” Id. B e cause Peralta hasn’t shown that Di l l ard h ad

a c t u al knowledg e, judg ment as a matter of law w a s appropriate.

I n any event, any error was h a r mless. See Goulet v. New Penn M otor E xpress, Inc.
, 512 F

. 3d 34, 42–43 (1st Cir. 2008). Despite Peralta’s assertions to the contrary , there’s no way that the jury could have found that Dillard and F it ter were liable after finding that B rooks was n o t

. See supra p p

. 10–13; cf. Corales v. Bennett
, 5 67 F .3d 554, 5 7 0 (9th Cir. 2 009); Jackson v. City of

Bremerton
, 268 F .3d 646, 653–54 (9th Cir. 2001). Peralta hasn’t pointed to any th i n g t h at F itter o r Dillard could have done that B rooks couldn’t. L ike B r ooks, F itter and Dillard h ad no c ontro l over the budg et. Not only did they have no say over how much money was allocated to the prison, but they couldn’t take m o ney allocated f or o ne purpose and u se it for a n o t h e r

. T hey had no input into the prison’s f unding levels or even how many dental positions the prison w o u ld have. B ecause the case ag ainst Dillard a nd F itter was identical to that ag ainst B rooks, by finding B rooks
not liable, the jury essentially resolved the qu e s t ion o f Dillard’s and F itter’s liability as well.P E R A L T A V

. D I L L

A R D 19

4. Law of

the Case

F inally

, Peralta arg ue s that the law of the case doctrine precluded the district court f rom g ra n ting F itter and Dillard judg ment as a matter of law because it had previously refused
to g rant them summary judg ment. B ut the denial of a

sum m a ry judg ment motion is never law of the case because factual development of the case is still o n go i n g. Denial o f
summary judg ment may result from a factual dispute at the time. That dispute may disappear a s the record develops. See Shouse v. Ljunggren
, 792 F .2d 902, 9 04 (9th C i r. 1 986) (citing Preaseau v. Prudential Ins. Co. of Am. , 591 F .2d 74, 79–80 (9th Cir. 1979)).

Peralta points to a pa s s a ge i n Federal Insurance Co. v. Scarsella Bros.
, 9 31 F .2d 599 ( 9th Cir. 1 991), indicating that

we o verstated the rule when we said in Shouse that “ the law of the c ase doctrine does not apply to p retrial r uling s.” Id. at 601 n.4 (internal quotation marks omit t e d ). According to Scarsella Bros.
, p retrial ruling s can create binding law of the

case if the court “clearly intended t o decide the issues at hand.” Id.

To the ex tent that S

carsella Bros. purporte d t o h o ld that the law of the case doctrine bars d i s t r i c t courts from reconsidering pretrial r

u ling s, we overrule it. Pretrial ruli n gs , often based on incomplete infor mation, don’t bind district judg es for the remainder o f th e case. Given the nature o f such motions, i t could not be o therwise. At the summary judg ment stag e, for ex ample, trial courts ask only whether there c ould be a material issue of fact. They must draw all inferences in the non-movant’s favor, see Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 255 (1986), and rest their ruling s

on the evi d en c e t hat they think c o uld be introduced at trial.P E R A L T A V

. D I L L

A R D 20

B ut when c onsidering whether to g r ant judg ment as a matter of law, they look only at the evidence actually int r o d u ced at trial.

I t makes no sense to say that a ruling that the p laintiff could hy pothetically prove some set of facts that would support h is claim prevents a district court fro m later finding that the plaintiff had not, in fact, p r o v e n t h o s e facts. Nor to say that if a d i s t r ict court realiz es a n earlier ruling was mistaken, it can’t correct it, but must instead w ait to be reversed on app e al

. All that would do is waste both the courts’ a nd litig ants’ t i m e and resources. Thus, W r ig ht a nd Miller have observed that, althoug h “[ i] t is p roper [for a district judg e] to refuse to reconsider a su m m a r y judg ment ruling [ ,]

. . . [ d ] e n i al of summary judg ment o ften is reconsidered.” 18B Charles A lan W r ig ht, Arthur R. Miller & Edward H. Cooper, Fe d e r a l Practice and Procedure: J urisdiction 2 d § 4 478.1 (2002). “De n i al can e asily be followed,” a s it was here, “by judg ment as a matter of law o r dismissal after trial.” Id.

Peralta’s c a s e illustrates the point. The evidence introduced at trial went be y o n d that presented in the motion for summary judg ment. See Old Person v. Brown , 312 F .3d 1036, 1039 (9th Cir. 2002). Dillard and F it t er moved for
summary judg ment on th e g rounds that (1) Peralta hadn’t presented ex pert evidence and (2) Dillard and F itter weren’t personally involved in Peralta’s care. The district court f ound that the lack of an ex pert alone wasn’t e noug h to entitle F itter and Dillard to summary judg m en t , a nd that there were material questions o f fact as to whether Peralta had a serious medical need, what kind o f care Peralta received at the prison and when F itter and Dillard became aware of Peralta’s complaints. The court noted, for ex ample, that “[ w] hether o rP E R A L T A V

. D I L L

A R D 21

not Dillard personally sig ned t h e Second L evel Appeal, authoriz ed someone e lse to sig n on his behalf, o r was wholly

unaware o f the document is a q uestion of fact.” B ut af

t er Peralta had presented his case, the court found that there was

no evidence that either doctor knew a bout Peralta’s alleg ed condition. Therefore, the district court didn’t abu s e i t s discretion in g r anting Dillard and F itter judg ment as a matter of law. See Mil

g a r d T e mpering, Inc. v. Selas Corp. of Am.
, 902 F .2d 703, 714–15 (9th Cir. 1990).

AF F IRMED

.

CHRI STEN, C i rcuit J udg e , with w hom RAW L I NSON, M. SMI T H, a n d HURW I TZ
, Circuit J udg es, join, a nd with whom B YB EE, C i rc uit J udg e, joins as to Parts I
, I I
, and I I I
, dissenting in part and concurring in part:

Twenty y ears ag o, the United States Supreme Court observed: “The Constitution does n o t mandate c omfortable prisons, b u t neither does it permit inhumane on e s, and it is

now settled that the treatment a prisoner r e c e ives in prison and the conditions under which he is confined are subject to scrutiny u nder the E ig hth Amendment.” Farmer v. B rennan , 511 U.S. 825, 832 (1994) (internal citations an d quotation marks omitted). The majority characteriz es Peralta’s Eig hth Amendment c laim as arising from a “several-month delay in getting his teeth cleaned a nd an alleg ed failure to treat hi s pain.” B ut Peralta’s claim is based on the defendants’ failure
to put h i m o n the prison’s emerg ency dental care list for conditions the prison’s dentist a dmitted qual ified for
emerg ency care: severe pain, bleeding g ums, a nd a bacterial infec t i o n

. Peralta remained on the prison’s routine care listP E R A L T A V

. D I L L

A R D 22

for 18 months. During that time, he developed periodontitis and severe b o n e loss, and the prison’s treating dentist acknowledg ed he suffered severe pain.

The d ecision announced today overturns more than thirty
y ears of circuit precedent by h olding that lack of resources is

a defense to provid ing c onstitutionally inadequate care for prisoners. B ecause it will deny any remedy for p risoners w ho have suffered injuries due to prison officials’ d el i berate indifference and eliminates an importa n t incentive for improving prison conditions, I respectfully dissent.

I.

Peralta complained of cavities, bleeding g ums, and severe pain within day s of a

rriving at California State Prison, L os Ang eles County (L ancaster). Afte r a bout a month without treatment, Peralta fil e d h i s first appeal, asking f or treatment for his infected teeth, cavities, and severe pain.

Dr. B rooks, a treating d entist at the pr i s o n, interviewed Peralta about f

our months later. He diag nosed Peralta with periodontal disease, a b ac t e r ial infection that can cause the
g ums to swell and b leed and c an lead to the loss of the bone that supports the teeth. Dr. B rooks testified that cleaning a nd scaling is part of the treatment for periodontal disease.

Dr. B rooks did not doubt that Peralta was in severe pain, and his testimony confirmed t h a t Peralta’s dental problems entitled him to a spot on the emerg ency list. W orking with too few colleag

ues and too many

patients to see, Dr. B rooks did n ot treat Peralta’s periodontal disease or prescribe antibiotics to treat Peralta’s infect i o n

. I nstead, he asked Peralta which tooth hurt the most and scheduled that tooth forP E R A L T A V

. D I L L

A R D 23

e x traction three months later. Dr. B rooks did not ex amin e Peralta’s other teeth for cavities or infection.

Peralta appealed ag ain, stating that he had been left with bleeding g u ms and infected teeth a nd was in severe pain. He received a written respon s e informing him that there were long delay s at the p r ison and that he was on a waiting list for dental care.

The dentists at L a

ncaster prison kept one waiting list for patient s n e eding routine care and a nother list for patients needing e merg ency care. I f a prisoner’s request was class i fied as an emerg ency , he was entitled to receive
treatment a

h e a d o f o thers on the routine care list. Peralta remaine d o n the waiting list for routine dental care, and he waited three more months for his second appointment.

At this visit, Dr. B rooks told him that the tooth could be saved after all, and Peralta decided aga i n st the scheduled

ex traction. Ag ain D r. B rooks did not p r e s c r ibe a c ourse o f
treatment for Peralta’s periodontal disease or clean h is teeth. He d id n ot address Peralta’s concern t h a t h e had cavities. Peralta received twelve I

b uprofen pills and some medication for h is infection, and eleven more months passed before Dr. B rooks saw Peralta ag ain.

B y the time of the third visit, Peralta was suffering from advanced p eriodontitis. W e do not need to take P eralta’s word a bout the nature or severity of his c ondition; Dr. B rooks testified to these observations a nd diag nosis at trial. He also testif i e d t h at Peralta’s g ums were bleeding and that h e h ad sustained severe bone loss by the time o f the third visit, which occurred a

bout 18 months a fter Peralta first asked forP E R A L T A V

. D I L L

A R D 24

treatment at L ancaster. This t i m e , Dr. B rooks cleaned Peralta’s teeth but still did not ex amine them for cavities.

Peralta was transferre d t o Mule Creek State Prison less
t han two months later. There, he received treatment f o r p eriodontal disease and had seven cavities filled o v e r t h e

course of several visits. Peralta testified th a t h e w a s happy with the dental care he received at Mule Creek.

Th e d efendants arg u ed at trial that Dr. B rooks was overworked and the p rison understaffed. To any one familiar with the c onditions of California’s prisons, it will come as no surprise that prison officials there have inadequate resources. See Brown v. Plata

, 131 S

. Ct. 1910, 1923 (2011) (“Overcrowding has overtaken the limited resources of prison staff; imposed demands well bey ond the capacity of medical and mental health facilities; and created unsanitary a nd unsafe conditions that make prog ress in the p rovision o f care difficult or impossible to achieve.”). Nor is it surprising that providers working in c h ro n i c a l l y u n d e r s t a f f e d a nd underfunded prison medical and de n t al facilities a re sometimes unable to provide adequ a t e ca re. I d. ( describing how overcrowding leads to “g rossly inadequate provision of medical and mental health care”).

The defenda n t s arg ued that they should be relieved o f liability for any violations of the Eig hth A mendment because of the lack o f r esources a t L ancaster. Consistent with Ninth Circuit precedent, Peralta proffered a jury instruction t h at “the lack of sta f

f i n g or other resources in the dental department at the L a n caster facility is not a d efense to liability under Section 1983.” Thoug h this had been a correct statement o f the law in the Ninth Circuit for approx imately thirty y ears, see Jones v. J ohnson

, 781 F

. 2d 769, 771 ( 9th Cir.P E R A L T A V

. D I L L

A R D 25

1986); Spain v. Procunier
, 600 F .2d 189, 200 (9th Cir. 1979), the district court instructed the j ury that defendants were entitled to r ely on la c k o f r e sources as a defense to the alleg ation that Peralta’s Eig hth Amendment rig hts h ad been violated.

II.

The Eig hth Amendment imposes upon prison officials the duty to prov i d e humane conditions of confinement; prison officia ls must ensure that prisoners receive adequate food, clothing

, shelter, and medical c are. F armer , 511 U.S. at 832. A prison official vio l a t e s the Eig hth A mendment when two conditions ar e m e t: “F irst, the deprivation alleg ed must be, objectively

, sufficie n t ly serious; a prison official’s act o r omission must result in the denial of the minimal c i v i l iz ed

measure of life’s necessities.” I d

. at 834 ( internal citations and quotation marks om i t t e d )

. Thoug h the majority characteriz es Peralta’s case as being about “the delay in cleaning his teeth,” in the end the majori t y r e c o g niz es that

even the defendants did not contest that Peralta’s medical condition was “objectively

, sufficiently serious.” Cf. Hunt v

. Dental Dep’t
, 865 F .2d 1 9 8, 199–200 (9th Cir. 1 989) (alleg ation that prisoner s u ffered b leeding g ums a nd broken
t e e t h f o r three months while waiting for dental care was suffi c i e n t to state a claim for deliberate indifference under § 1983). The f

irst prong of Farmer is not at issue on appeal.

Farmer’s s e c o nd requirement is that “a prison official
must h ave a sufficiently c ul p ab l e state of mind.” Farmer
, 511 U.S. at 834 (internal citations and quotati o n m a r ks omitted). “I n prison-conditions cases that state of mind is o ne of ‘deliberate indifference’ to inmate health or safety .” Id.P E R A L T A V

. D I L L

A R D 26

Farmer e x amined the deliberate indifferen c e s t a n d a r d a nd made clear that a plaintiff n e e d n o t demonstrate the prison official intended harm, or even t h a t the official knew harm would result f

rom the challeng ed conditions of confinement. Id. at 835. Farmer held that a prison o f ficial may b e liable under the Eig hth Amendmen t for deliberate indifference if “the official knows of and disreg ards an ex cessive r isk to inmate health or safety ; the official must both b e aware o f facts from which the inference c ould be drawn that a substantial risk of serious harm ex ists, and he must also draw the inference.” Id. at 837. I n other words, the official must “consciously d isreg ard a substantial risk of serious harm.” Id. at 839 (internal quotation marks and alteration omitted).

Today

, our court ov erturns more than thirty y ears o f circuit precedent by holding t h a t lack of resources is a defense to a damag es claim that a p risoner was denied the constitutionally -required minimum th r eshold for adequate

care. The jettisoned circuit p recedent dates back to 1979 when, writing for the Ninth Circuit, now-J ustice Kennedy

ex p lain e d t hat “the cost or inconvenience of providing adequate f

acilities is not a defense to the imposition of a cruel punishment.” Spain
, 600 F .2d at 200. O ur circuit reiterated and reaffirmed this rule in Jones
, 781 F .2d at 771, and, much

m o r e r e cently

, in Snow v. McDaniel

, 681 F .3d 978, 984–87 (9th Cir. 2012).

The plaintiff in Jones filed a § 1983 suit seeking damag e s and injunctive relief ag a inst a county jail, jail doctors, supervisory jail personnel, and county officials for deliberate indifference to his medical needs. 781 F .2d at 770. He alleg ed that he was refused a necessary hernia surg ery because of the c ounty ’ s “tig ht budg et.” Id. at 771. Our circuit r e v er sed the d istrict c o urt’s dismissal of the c laimsP E R A L T A V

. D I L L

A R D 27

ag ainst the individual defendants, holding that by alleg ing he

was denied necessary surg ery due to budg etary constraint s, J ones pleaded suf

fi cient f acts to constitute deliberate indifference. See id. at 771–72 ( “ W e find no other

ex p l a n ation in the record than the budg et concerns for deny ing J ones’s surg ery

. Budgetary constraints, however, do
not justify cruel and unusual punishment

. . . . B ecause J ones has properly a lleg ed b oth that he had a serious medical need

an d that the defendants were deliberately indifferent to that need, he has a dequately stated a cause of a ction u n d e r the fourteenth amendment.” (emphasis added)). As in Jones
, Peralta’s case permits “no other ex planation i n t h e record than the bud g et concerns” for deny ing treatment for his “objectively , sufficiently

serious” medical condition.

I n Snow
, we reaffirmed the r u l e that lack o f resources cannot be a defense for the f ailure to provide constitutionally

required medical care for prisoners. Th e p r i soner in Snow sued doctors and w ardens of the Nevada Department o f Corrections for declaratory and injunctive relief and damag e s under § 1983. 681 F .3d at 9 84. He a lleg ed these officials

were deliberately indifferent to his medical needs by deny ing him n ecessary hip surg ery

. I d. at 9 84–85. Citing Jones
, we concluded that the record supporte d the inference that the defendants denied surg ery to Snow due to “improper motives”—namely

, “to avoid eventually pay ing for it”—and that this inference could show the defendants acted with deliberate indifference. See id. at 987.

The majority assures us that prisoners will still be able to bring § 1983 claims if they seek injunctive relief and attempts to disting uish Jones and Snow on the basis that Peralta soug ht only money damag es. B ut t h e p rinciple in J ones and Snow

w a s first articulated in Spain
, which drew no distinc t i o nP E R A L T A V

. D I L L

A R D 28

b e t w e e n the ty

pe of relief soug ht by the plaintiff: “The c o s t

o r inconvenience of providing adequate facilities is not a defense to the imposition of a c r u el punishment.” 600 F .2d

a t 200. T he majority ’s attempt to retroactively a p p l y a newly -minted distinction between claims for injunctions a nd claims for d amag es to our decision in Spain is not

con v i ncing

. There is nothing tentative or limited about Spain’s directive that “cost

. . . is not a defens e to the imposition of a cruel punishment,” id

. , a n d

, until today

, we have never sug g ested that cos t may b e a defense to Eig hth Amendment claims for damag es. I n fact, Snow sug g ests the opposite. S

now specifically ex amined a plaintiff’s claim for damag es for defendants’ deliberate indifference to his serious medical n e ed s and rejected the c o st defense in that contex t. See Snow , 681 F .3d at 985–87. Snow’s claim for injunctive relief to remedy a “custom or policy ” of inappropriate treatment—which the district c o u rt had dismissed a s moot—was analy

z ed separately

. S

ee id. at 991.

The rule articulated in S

pain
, Jones
, and Snow recog niz e s that the constitutionally

- required t hreshold for the humane
treatment o f prisoners is impossi b le to safeg uard if prison officials are permitted to claim lack of resources a s a defense. I n the case of Cali f

o r n i a prisons, there c an be no doubt that chronic underfunding and overcrowding have plag ued prison administrators and the prison po p ulation for decades. See Brown
, 131 S. Ct. at 1923–26 ( describing “ex cepti o nal”

ov er c rowding in California’s prisons and the resulting inability to provide minimal, adequate medical care to prisoners). The majority ’s decision w i l l e ffectively prevent prisoners from b rin g ing suits for d amag e s ag ainst prison officials who have v iolated their E ig h th A mendment rig hts b y demonstrating deliberate i n difference to serious medical needs: those who actually control p rison budg ets are immuneP E R A L T A V

. D I L L

A R D 29

f r o m damag e suits, Tenney v. Brandhove

, 3 41 U.S. 36 7
, 376–79 (1951) (providing a bsolut e i mmunity for state leg islators); and pri s o n officials responsible for substandard

care or c onditions will be shielded by the newly -annou n c ed

“ l a c k o f resources” d efense. 1 U nder the lack of resour c e s defense, e ven prisoners who suffer g r ievous injury will be left with no recourse at all—what g ood is prospective injunctive relief to a p risoner whose appendix has burst? The concern that holding prison officials p ersonally liable would be unfair overlooks the reality that California indemnifies employ ees for torts committed within t h e s c ope of their employ ment, 2 and pay s the cost of their defense. 3

The majority sug ge s t s that I seek an end run around the Eleventh Amendment by s u b jecting the state to financial
pressure to avoid c r

uelly a n d u n usually punishing its
p r i s o ners. B u t the state’s decision to indemnify D r. B ro o k s

w a s voluntary

. W ithout the ability to seek damag es, prisoners w h o sustain injuries from overcrowding a nd underfunding will b e d enied any meaning ful form of relief,

even f or g rievous violations of the Eig h t h A mendment. A s J udg e Hurwitz p e r suasively ex plains, California’s freely

assumed oblig ation to its employ ees does not chang e t h i s simple f act. I f any

thing

, the new distinction between claims for damag es and claims for injunc t i v e r elief is an end run

arou n d the c ong ressional directive embodied in 4 2 U .S.C.

1 T h e m aj o rity su g g ests th at a p riso n er co u ld p u rsu e a Mo nell claim f or d am ag es ag ain st a m

u n i cip al en t ity

. Bu t m

u n icip al en tities d o n o t o p erate state p riso n s.

2 Cal. Go v ’ t Co d e § 8 2 5

.

3 Cal. Go v ’ t Co d e § § 8 2 5 , 9 9 5.P E R A L T A V

. D I L L

A R D 30

§ 1983 that there should be redress when constitutional rig hts

are violated. Simpson v. Thomas

, 5 28 F .3d 685, 692 (9th Cir. 2008) (“Cong ress’s purpose in enacting § 1983 was to c reate

a novel c ivil remedy for violation of estab l i shed constitutional rig hts.” (citation and internal quotation marks omitted)).

Another overlooked reality is that the majority of cases in which a prisoner successfully proves a violatio n of his constitutional rig hts result i n l ow damag e awards for the prisoner. See W

oods v. Carey
, 722 F .3d 1177, 1182 n.6 (9th Cir. 20 1 3) (quoting Marg o Schlang er, Inmate Litigation
, 116 Harv. L

. Rev. 1555, 1603 (2003) (“[ T] he mean damag e s for cases wo n a t t ri al by inmate civil r ig h ts plaintiffs was $18,800, and the median was a mere $1000.”)). E v en small damag e a

wards can a ffect su b stantial chang e in prison conditions; y et the rule announce d today eliminates this modest, but important, i n c entive. Owen v. City of Independence, Mo.
, 445 U.S. 622, 651 (1980 ) (“Moreover, § 1983 w as intended n ot only to provide compensation to the victims of past abuses, but to serve as a deterrent ag ainst future constitutional deprivations, as well.”).

III.

The district court’s jury instruction should not have been
g iven, even under the newly

- a n n o unced lack of resources defense, because it was not supported by the evidence and it

was misleadin g; the evidence did not show that a lack o f

resources had any

thing to do w ith B rooks’ failure to place Peralta o n the emer g e n cy care list. See Clem v. Lomeli

, 566 F .3d 1177, 1181 (9th Cir. 2009) (“[ J ] ury instru c t i ons

m u st fairly and adequately cover the issues p resented, mustP E R A L T A V

. D I L L

A R D 31

correctly state the law, and must n ot be misleading .” (internal quotation marks omitted)).

T here is no r eal question about whether the prison w a s understaffed; in fact, it was s o understaffed that Dr. B rooks testified that the bulk o f h i s workday was spent treating patients on the emerg ency c a re list. 4 He was only able to see patients o n the routine care list if there was any time remaining at the e nd of the d a y

. T h e net effect was that prisoners on the r outine care list waited about twelve months before receiving

any care.

B e cau s e t h ose on the routine care list only saw a care provider if there was a

ny time r emaining at t h e e n d of the day

, the ex istence of the emerg ency care list is critical to the
outcome of this case. Dr. B rooks testified that the p articulars of Peralta’s conditions—including bleeding g ums and severe pain—would qualify as a dental emerg ency that entitled prisoners to be placed on the emerg ency care list. The Chief Dental Officer at the prison, Dr. Dillard, also testif ied that complaints of tooth p a i n and bleeding g ums were g iven hig her priority than routine cleaning s. Yet Peralta was never moved to the emerg ency care list, and the defendant s d i d nothing to rebut the evidence that the prison’s overex tended staff w ould have more promptly p rov i d e d dental care to P er a l t a if he h ad been g iven a spot o n that list. The distr i ct court’s instruction was unsupported and misleading because defendants offered no e v idence to show that lack of funding

4 T h at t h e staf f w as o v er- co m

m i tted can n o t b e d isp u ted

. A s t h e m aj o rity

n o tes, Dr. Dillard testif

ied th at state p o l icy called f o r a ratio o f o n e d en tist f o r ev er y 9 5 0 priso n ers, b u t th e in ad eq u ate reso u rces allo cated to L an caster lef

t t h e p riso n w ith a ratio as h i g h as o n e d en t ist to ev ery 1 ,5 0 0
p riso n ers.P E R A L T A V

. D I L L

A R D 32

had any thing to do with the failure to move Peralta from the routine care list to the emerg ency care list.

The majority

sug g e sts Peralta invited error by proffering

a jury instruction that d irected the jury to disreg ard evidence of understaffing and a l a c k o f resources at the prison. This

a rg ument is premised on the assertion that “Peralta’ s proposed instruction presupposed that there was su f f icient evidence about the lack of resources at B rook’s d i s p o s a l.” This mischaracteriz e s Peralta’s arg ument. Peralta’s p roffered instruction merely stated that the jury had heard evidence that the p r i s o n was understaffed, which they had, and instructed
t h e jury that this lack of resources was not a defense to a

c l a i m of deliberate indifference. The instruction actual l y g iven to the jury turned the proff ered instruction u

pside down. Peralta’s p roffered instruction was a correct statement of the law; he did not invite any error. 5

W ithout support f

rom the record, the majority a lso asserts that placing Peralta o n the e merg ency c are list would have inevitably d elay ed another prisoner’s tr eatment. T his is speculation. The record reveals nothing a bout whether o r how patients on the emerg en c y c are list were triag ed, or the

o r d e r in w hich prisoners on the emerg ency care list w e r e treated. W hat we d o know i s t h at Peralta would have received care more promptly if he had been moved from the routine care list to the emerg ency care list because Dr. B rooks

was only able to serve p risoners on the routine c are list if
t h e re was any time left over a t the end of each d a y

. T h e

5 Erro r is o n ly in v i ted w h en th e o b

j e c t i n g p a rty (1 ) p ro p o s ed th e alleg ed ly f

law ed j u ry in stru ctio n ; an d (2 ) in ten tio n ally w aiv ed a k n o w n rig h t by d oin g so

. U

n i t e d S ta tes v. Perez
, 1 16 F.3 d 8 4 0
, 8 45 (9 th Cir. 1 9 9 7 ) (en b an c).P E R A L T A V

. D I L L

A R D 33

majority concedes that this was the way the emerg ency car e list worked b y noting that prisone r s sometimes try to “jump
t h e line” by ex ag g erating sy mptoms. Peralta wasn’t ask i n g for special consideration. He was asking only that he be placed on the e m e r g ency list like o ther inmates with qualify ing dental c o nd i t i o n s, rather than waiting months on the routine care list until it was d i scovered he h ad periodontitis and severe bone loss.

IV.

B e fore the case went to the jury

, the district c ourt entered

a directed verdict in favor of Drs. F itter, the chief medical officer, a nd Dillard, the chief dental offic e r. As to Dr. Dillard, the district court found tha t “[ t] here is no evidence here that [ Dr. Dillard] had actual knowledg e of a serious medical condition.

. . . At most, he was n e gl i ge n t in the d i s c h ar g e of his duties.” T he district court similarly found that there w as “no evidence in the record that Dr. F it t e r w a s in fact a ware of a serious medical c on d ition which h e then treated w ith d eliberate indifference.

. . . At most, his conduct

was neg lig ent.” The district c ou rt ruled that Dr. F itter was entitled to qualified immunity b ut did not make a comparable ruling reg arding Dr. Dillard.

I join the majority

in affirming the dismissal of Peralta’s claims ag ainst Dr. F itter, but I disag ree with the majority ’s conclusion that a directed verdict was a p propriate on Peralta’s

c l a i ms a g ainst Dr. Dillard. As the supervising dentist, D r. Dillard t e s t i f

i ed that he was r equired by California law to conduct second level appeals. See 15 C a l

. Code Reg

. § 3084.7(d)(2). Dr. Dillard also testified that he was the only supervisor with the ex p ertise to dete r mine whether the first level r esponse to an inmate’s complaint was proper. B ut Dr.P E R A L T A V

. D I L L

A R D 34

Dillard testified that it was his practice to authoriz e someone else to sig n second level responses on his behalf when he was to be absent in order to process appeals quickly . Dr. Dillard conceded that prison st aff w ere able to g et ex tensions to review appeals, but he testified that “no one likes to be late on appeals because it doesn’t look g ood and the warden d oesn’t favor that.” A pparently to avoid an untimely response that wouldn’t look g ood, Dr. Dillard did not co n d u c t or sig n Peralta’s second level appeal, nor was it even si g ned by a dentist. I nstead, D r

. Dillard arrang ed for a prison phy sician
to review the dental appeals in his place. Dr. D i l lard never met or ex a mined Peralta, or looked at Peralta’s dental records, until after Peralta filed his lawsuit.

The majority h o lds tha t Dr. Dillard’s failure to r eview Peralta’s appeal—an oblig a tion c o nferred u pon h im b y California law—shields him from liability

. Unchecked, this

r u l e w ill allow care p roviders to d efeat claims of deliberate indifference by arg uing that they had no actual knowledg e o f the prisoner’s condition, even if that lack of knowledg e is the result of failing to perform duties ex pressly assig ned to them. Th e majority not only charts a path that permits prison officia l s to escape liability by arg uing that they have inadequate funds to p rovide emerg ency care t o i n m ates, it condones an escape h atch from liability available to officials willing to look the other w ay or who fail to perform assig n ed duties that mig ht cause them to g ain actual knowledg e of an in m a t e ’s condition. Neither circuit n or Supreme Court authority permits such a result.

I n Farmer
, the Supreme Court rejected concerns that prison officials could escape liability b y “ig nor[ ing ] obvious dang ers to inmates,” reasoning that a plaintiff need only show the “official acted or failed to act despite his knowledg e of aP E R A L T A V

. D I L L

A R D 35

substantial risk o f s e r ious harm.” Farmer
, 511 U.S. at 842. A prisoner is n ot required to show that an official intended for harm to occur, or that the official h ad actual knowledg e that harm would occur, to s h o w that the Eig hth Amendment has been violated. Id.

J u d gment as a matter of law is only appropriate if n o reasonable juror could find in Peralta’s favor. See El-Hakem

v. BJY I nc. , 415 F .3d 1 068, 1072 (9th Cir. 2005). H e r e , a

re a sonable jury could c onclude that some L ancaster prisoners’ emerg ency dental problems would g o unaddressed if the only staff dentist qualified to review first level appeals did n o t a ct ually review them. Dr. Dillard knew h e was oblig ated to review the first level appeals, and he knew he

was the only staff dentist qualified to do so. On this record,

a jury c ould conclude that Dr. D illard did not fulfill his oblig ations and consciously disreg arded a substantial risk of serious harm to the dental n eeds of prisoners a t L ancaster. The law does not r equire that Dr. Dilla rd i n t e nded harm to result. J udg ment as a matter of law was inappropriate.

V.

“A prison that deprives pris o n e r s of basic sustenance, including adequate medical care, is incompat ible with the concept of human dig nity and h as no place i n c iviliz ed society .” B rown , 131 S. Ct. at 1928. “I f g overnment fails to fu l f ill this o blig ation, the courts h ave a responsibility to remedy the resulting Eig hth Amendment violation.” Id.

The decision announced today overturns more than thirty
y ears of c ircuit precedent by holding that a lack of resources is a defense to providing constitutionally inadequate care for prisoners. I t e ffectively e liminates § 1983 suits for damag e sP E R A L T A V

. D I L L

A R D 36

ag ainst prison officials, denies relief to those prisoners w ho have already suffered injuries, even when they are g rievous, and p ermits prison o ff

i c ials to escape liability by f ailing to p e r form job duties imposed by law. F or these reas o n s , I respectfully

dissent.

HURW I TZ
, Circuit J udg e, with whom RAW L I NSON, M. SMI T H, and CHRI STEN, Ci r c uit J udg es, join, a nd with whom BY BE E, Circuit J udg e, joins a s to Parts I and I I
, dissenting in part and concurring in part:

The majority opinion has somethi ng of a seductive
q u a l i t y

. I t pits Peralta, a jailhouse lawy er, ag a inst Dr. B rooks, an overworked dentist. The c ase invo l v e s dental
care, a n ame n i ty not available to larg e portions of the lawabiding population. Given the majority ’ s characteriz ation o f
t h e dramatis personae a nd the issue, it is not difficult t o predict the result.

B u t, of course, this c ase is really not about just P er a lta and Dr. B rooks. N or is it about an alleg ed constitutional rig ht
to dental care. 1 Rather, this case is b e f o r e t h e en banc court because it involves, in the words of F ederal Rule of Appellate Procedure 35(a)(2), a “ question of ex ceptional importance.” That question is whether a state can shield itself from the

conse q u ences of deny ing constitutionally required medical

1 T h e m aj o rity su g g ests th at P eralta su ed b ecau se h is teeth w ere n o t clean ed

. Maj

. Op

. at 5

– 6
, 1 4

. J u d g e Ch risten ’ s d issen t rig h tly d ism isses th is su gg estio n

. Ch risten Diss. at 2 1

– 2 2

. Giv en th at th ere i s n o clearly estab lish ed rig h t to teeth clean in g , th e o p i n io n co u ld h av e dism issed su ch a claim o n q u alif ied im m u n ity g ro u n d s.P E R A L T A V

. D I L L

A R D 37

treatment to those it incarcerates b y deliberately choosing not to appropriate sufficient funds for that treatment.

The majority effectively h olds that a state can first choose
to underfund the medical t r e at ment of its wards, and then

ex c u se the Eig h th Amendm e n t violations caused b y the und e r f u n d ing

. Today ’s decision thus not only forecloses relief to inmates who suffer cruel and unusual pun i s hment, but a lso e n courag es future constitutional violations. I respectfully

dissent.

I

Peralta asserted Eig

hth Amendment claims ag ainst three defendants—Dr. B rooks (the treating d e n t i s t ), Dr. Dillard (the Chief Dental Officer), a n d Dr. Fi t ter (the Chief Medical Officer). B ecause only the c laim ag ainst Dr. B rooks w e nt to t he jury

, the instruction to c onsider the financial resources made available to the prison sy stem by the State of California applies to that claim alone. B ut, the his t o r y o f the c laims
ag ainst the other two defendants is nonetheless instructive.

The d istrict court determined that Dr. F itter h ad qualified immunity

, and directed a judg ment in h is favor; the court did
not reach the iss ue o f qualified immunity as to Dr. D illard, finding that Peralta had not established a prima facie case of deliber a t e i ndifference a nd also issuing a judg ment as a matter of law on his behalf. D r. Br o oks, however, did not assert qu a l ified immunity

. Thus, the “resources” jury instruction only c omes into p lay in cases in which qualified immunity has not been g r anted and in w hich the district court finds sufficient evidence of a n E ig hth Amendment violation to submit the claim to a jury

. See Maj. Op. at 11 (“W e have

no quarrel with the diss e n t e r s ’ view that Peralta may haveP E R A L T A V

. D I L L

A R D 38

suffered an Eig hth Amendment violation.”)

. The majority thus holds that even if a plaintif f makes out a prima facie Eig hth Amendment violation, an ag ent of the state may nonetheless justify c ruel and u nusual punishment by claiming that the state itself cau s ed the problem by withholding the
resources necessary

to provide appropriate medical care.

This turns the law upside down. A state official i n f l i c ts cruel and unusual p u n ishment by ex hibiting deliberate indifference to a prisoner’s serious medical needs

. Estelle v

. Gamble

, 429 U.S. 97, 103–04 (1976). D eliberate indifference in turn r e quires subjective c ul p ab i lity —the official must know of a

nd disreg ard an ex cessi v e risk to inmate health. Farmer v

. Brennan
, 511 U.S. 825, 837–38 (1994). Althoug h the Supreme Court h as left o pen whether fiscal constraints a re

a defense to an Eig hth Amendment c laim, in doing so J u stice Scalia a ptly noted that “it is hard to understand how” funding issues “could control the meaning of ‘cruel and unusual punishments’ in the Eig hth Amendment.” W i lson v. Seiter
, 501 U.S. 294, 301 (1991). F our justices went even further, criticiz ing the W

ilson majority for e v en “leav[ ing ] o p en the possibility

, for ex ample, that p rison off i c i a l s will be able to defeat a § 1983 action challeng ing inhumane prison conditions simply

by showing that the conditions are c aused by insuff i c i ent funding from the state leg islature rather than by a n y d e liberate indifference on the part of the prison officials.” Id

. at 311 (W hite, J
., c o n curring in the judg ment).

Until today

, t h e law of this Circuit was that “budg e tary constraints

. . . do not justify cruel a n d unusual punishment.” Jones v

. Johnson

, 781 F .2d 769, 771 (9th Cir. 1986); accord Snow v

. McDaniel

, 681 F

. 3d 978, 987 (9th Cir. 2012). The majority overrules J

ones and Snow and holds that an official does not a ct w i t h deliberate indifference if he (a) lacks theP E R A L T A V

. D I L L

A R D 39

“resources” to treat an inmate and (b) is sued for money damag es. Maj. Op. at 8–10. B ut, th e E i ghth A mendment prohibits all cruel and unusual punishments, not simply those inflicted by officials o f states with well-funded prison medical sy stems. More importantly

, there are likely no such
states. See Andrew P. W ilper et al., The Health and Health Ca re of US Prisoners: Results of a Nationwide Survey
, 99 Am. J

. Pub. Health 6 66, 669–71 (2009). Today ’s opinion therefore renders d am ag es suits by inmates who suffer
g rievous i n

juries as a r esult of constitutionally forbidden indifferenc e all b ut impossible in practice. I n every case in which state actors are sued for failing to pro v i d e minimal medical care

— e v en those cases involving loss of life o r serious permanent injury

— the defense will be lack o f resources, and that defense will almost surely succeed.

This will encourag e further constitu tional violations: I f
states do not have to pay damag es for de p r iving inmates o f the level of care required to avoid vio l ating the Eig hth Am e n dment, there will b e little reason to increase appropriations for prisoner care.

A

Not to w orry , the majority say s. Althoug h Dr. B rooks can assert a lac k of r esources defense, that defense will not be availab l e t o those who fail to request sufficient resources. Maj. Op. at 10–11. B ut ag ain, in reality , no such defendants will ex ist. Every

putative defendant will be able to honestly plead poverty

.

W a rdens, medical supervisors, and staff doctors have no control o ver California’s prison budg et, which contains “line items” for prison medica l, mental health, and dental care.P E R A L T A V

. D I L L

A R D 40

B udg et Act of 2013, A s s emb. B

. 110, 2013 Reg

. Sess., § 2.00, No. 5 225-002-0001 (Cal. 2013) (alloc ating prison medical funding ); see a lso id. § 32.00 ( limiting departmental

ex p enditures to the app r o p r i ated amount); Cal. Gov’t Code § 13324 ( prohibiting ex penditures in ex c ess of a department’s b udg et). Prison officials may only spend in ex cess o f t h e Department of Corrections and Rehabilitation’s budg et if so ordered b y a court-appointed receiver. Cal. Assemb. B

. 110, § 2.00, No. 5 2 2 5

- 0 02-0001; see Plata v. Schwarzenegger

, No. C01-1351 TEH, 2005 W L 2932253 (N.D. Cal. Oct. 3, 2005). The entities th a t control California’s prison budg e t—the receiver a nd the state leg islature—are immune from damag e s

s u i ts. B ogan v. Scott-Harris
, 523 U .S. 44, 49 (1998) ( p roviding absolute immunity for state leg islators); Mosh e r

v. Saalfeld

, 589 F .2d 438, 4 4 2 ( 9 th Cir. 1978) (g ranting ab s olute quasi-judicial immunity for receivers). A nd a suit for d amag es ag ainst the state itself is barred b y sovereig n immunity

. Edelman v. Jordan

, 415 U.S

. 6 5 1
, 676 (1974). Thus, even a ccepting the majority ’s limitation of its rule, there is really

no one left to sue.

B

The majority ’ s alternative answer is that lack of resources is not a defense to a suit for injunctive relief. Maj. Op. at 9. B ut injunctive relief provides no comfort to an inmate w ho loses a limb because o f u n t r eated diabetes. F or such constitutional violations, “it is damag e s or nothing .” Bivens

v. S ix Unknown Named Agents of Fed. Bureau of Narcotics
, 403 U.S. 388, 410 (1971) (Harlan, J
., conc u r r i n g in the judg ment). I ndeed, even for prisoners not y et inj u r e d b y constitutionally deficient conditions, history c ouns e ls skepticism a

bout the utility of injunctive relief. See Brown v

. Plata

, 131 S. C t

. 1 910, 1 923–28 (2011) (documentingP E R A L T A V

. D I L L

A R D 41

California’s failure, in the f a ce of multiple remedial injunctions, to improve prison medical care). 2

More importantly

, the majority ’s distinction b etween damag es and injunctive relief finds no support in the Eig hth Amendment. Cruel and unusual punishment vi o l ates the Eig hth Amendment r e ga r dless of the inmate’s pray er for relief

. Bu t , in the ey es of the majority

, refusing to treat an inmate because of budg e t con straints is cruel and unusual when an inmate requests equitable r elief, but somehow not so when he requests monetary relief.

The majority has thus made injunctive relief the default remedy fo r Eig hth Amendment violations. The law is precisely to the contr a r y

. Rather, “[ a] damag es remedy
ag ainst the offending party is a vital component of any scheme for vindicating cherished c onstitu t i o n al g uarantees

. . . .” Owen v. City o

f I ndependenc e , 4 4 5 U

. S. 622, 651 (1980). Moreover, Cong ress has w arned that federal courts should r arely issue equitable relief in p rison condition cases, Prison L itig ation Reform Act, 18 U.S.C. § 3626(a)(1)(A), a nd the Supreme Court has often emphasiz ed the same, see e.g. , Farmer
, 511 U.S. at 846–47; Turner v

. Safley

, 482 U.S. 78, 8 4

– 8 5 (1987); Bell v. W olfish

, 441 U.S. 520, 562 (1979 ) ; Procunier v. Martinez , 416 U.S. 396, 404 (1974).

2 Ob tain in g eq u itab le relief bef o re o n e s u f

f ers p erm an en t i n

j u r y can req u ire h ercu lean ef

f o rts. A p riso n er f

irst h as to ex h au st ad m in istrativ e

rem ed ies. 4 2 U.S.C. 1 99 7 e(a). T h en , a ty p ically p ro se litig an t m

u st eith er prev ail in co u rt o r receiv e a f av o rab le settlem e n t

. “Of 5 5 ,3 7 6 in m ate civ il rig h ts cases th at en d ed i n 2 0 0 0
, 4 9 ,4 9 2 w ere co d ed as pro se. Of th ese, 1 4 1 1 (2 .8 5 %) w ere co d ed as h av in g settled ; 4 9 1 (0 .9 9 %) w ere

co d ed as h av in g g o n e to trial; 5 2 (1 0 .5 9% o f trials) w ere co d ed as en d in g in a trial v i cto ry f

o r th e p lain t if

f .” Marg o Sch lan g er, In ma te Litig a tio n , 1 1 6 Harv . L . Rev . 1 5 5 5 , 1 6 1 0 n .1 5 8 (2 0 0 3 ).P E R A L T A V

. D I L L

A R D 42

The majority thus today runs roug hshod over the g eneral presumption in favor of leg al remedies over equitable relief. “[ I ] t is ax iomatic that a court should determine the a dequacy of a remedy in law before resorting to equitable relief. Under the ordinary convention, the proper inquiry would be whether monetary damag es provided an adequate remedy

, and if not, whether equitable relief w ould be appropriate.” Franklin v

. Gwinnett Cnty. Pub. Sch.

, 503 U.S. 60, 75–76 (1992); see also Carey v. Piphus

, 435 U .S. 247, 256–57 (1978) (“To the

ex tent that Cong ress intended that awa r d s u nder § 1983 should deter the deprivation of cons t i tutional rig hts, there is

no evid e n ce that it meant to establish a deterrent more formidable than that inherent in the award of c o m p ensatory damag es.”); Bivens
, 403 U.S. at 395 (“Historically

, damag e s have been reg arded as the ordinary remedy for an invasion o f personal interests in liberty

. ” )

. B y d eny ing inmates an adequate remedy at law, the major i t y inverts the basic law/equity

presumption.

II

I n t h e e nd, the only rational justification for today ’s decision is concern f

or the prison m edical provider. That solicitude is valid: W i th shoestring budg ets, prison d octors must triag e medical care. “California priso n wardens a nd health care manag ers make the difficult decision as to which of [ var i o u s c l ass actions] they will fail to comply with because of staff shortag e s and patient loads.” Plata

, 131 S. Ct. at 1927 (quoting Receiver’s Repor t re Overcrowding

, Plata v. Schwarzenegger

, No. C01-1351-TEH). I t would, o f

course , be unfair to subject a doctor to personal liability because he could not immediately treat every

inmate.P E R A L T A V

. D I L L

A R D 43

B u t this case does not deal w ith the imposition o f liability

on a doctor who w as unable to see a patient. Peralta manag ed
to b ecome Dr. B r ooks’ patient, and the suit attacks decisions made b y D r. B rooks from that point forward. Peralta v

. Dillard

, 704 F .3d 1 1 24, 1133–34 ( 9 th Cir. 2013) (B e rz o n, J
., dissenting ). More importantly

, the majority ’s focus on the personal liability of p rison phy sicians ig nores an important reality —the state is in every

respect the real party

in interest in a damag es suit.

California indemnifies employ ees for torts committed in the scope of their employ ment. 3 Cal. Gov’t Code § 825. “I ndemnification is ‘near[ ly ] universal’ among state and local entities, either as a matter o f o fficial policy or practice.” Peralta

, 704 F .3d a t 1136 (B erz on, J
., dissenting ) (qu o t i n g Schlang er, supra , at 1676 n.391).

California not only indemnifies prison officials n amed a s defendants in § 1983 a c tions, but also pay s for their leg al defense. Cal. Gov’t Code §§ 825, 995. Yet, the majority

3 Ev ery o th er state in o u r Circu it d o es th e sa m e

. S ee A riz. Rev

. Stat. § 4 1

- 6 2 1 ; Id a h o Co d e § 6- 9 0 3 ; Mo n t. Co d e A n n

. § 2

- 9

- 3 0 5 ; Nev

. Rev

. Stat

. § 4 1 .0 34 9 ; Or. Rev

. S tat. § 3 0 .2 85 ; W ash

. Rev

. C o d e § 4 .9 2 .0 7 5

. A lth o u g h A lask a d o es n o t in d em n i f y b y statu te, A lask a Stat. § 0 9 .5 0 .2 5 3 (f

), its co ll ectiv e barg ain in g ag reem en t h o ld s p riso n d o cto rs h arm less f

o r to rts co m

m itted in t h e sco p e o f th eir em

p lo y m en t. Co llectiv e B arg ain i n g A g reem en t b etw een th e St a t e o f A lask a an d th e A lask a C o r r e c t i o n a l O f

f i c e r s A s s o c i a t i o n , A r t

. 2 9
, a v a i l a b l e a t h ttp ://d o a.alask a.g o v / d o p / fi l e a d m i n / La b o r R e l a t i o n s / p d f / co n tracts/A CO A CO 2 0 1 2

- 20 1 3 .p d f

. H aw aii au th o rizes, b u t d oes n o t m an d ate, in d em n if i catio n

. Haw aii R ev

. Stat. § 66 2

- 1 6

. B u t it also ap paren tly
p ro tects p riso n d o cto rs b y ag reem en t. In stitu t io n al, Health an d Co rrectio n al W o rk ers B arg ain in g U n it 1 0 A g reem en t, § 6 3 .1 8
, a va ila b le

a t h t t p : / / d h r d

. h a w a i i

. g o v / w p

- c o n t e n t / u p l o a d s / 2 0 1 2 / 1 2 /

BU

- 1 0

- U PW- 2 0 0 7

- 0 9

- CB A .p d f

.P E R A L T A V

. D I L L

A R D 44

allows the state—while funding and directing the d e f ense—simultaneously to arg ue that it would be u nfair t o impose liability

because of budg eting decisions made by the
state itself. I f that defen s e s u cc eeds, the only financial winner is the very entity that created the problem in the first place. 4

W e should not countenance such a charade. W hen a state funds its employ ee’s d efense and indemnifies him ag a inst any judg ment, it oug h t n ot then assert that he is faultless because the state is really to blame. The policy concern that no doctor wi l l w ork for a prison if he f aces the p ossibility of personal liability has already b een addressed (and apparently effectively

so) by California’s promise to hold the phy sician h a r mless. Having made the policy decision to incarcer a t e a larg e number of wrong doers, Ca l i f o r nia should not be allowed to avoid the Eig hth Amendment consequences of that decision by sy stematically underfunding medic al care. At a minimum, when a state attempts to do so, we should create an

ex c e ption to the judg e-made collateral source r ule and allow the plaintiff to inform jurors that the state, not the individual defendants, wi l l pay any compensatory damag es awarded. See B ell v. Clackamas Cnty
., 341 F

. 3d 858, 868 (9th Cir. 2003).

Such an app ro a c h would not, as the majority sug g ests, Maj. Op. at 11, violate state sovereig n immunity

. States have

no oblig ation to indemnify their employ ees for damag e s imposed b ecause of constituti o n a l v iolations. B ut, when a

4 Calif orn ia w ill n o t in d em

n if y a n e m p l o y e e w h o acts o u tsid e o f th e

sco p e o f em plo y m en t. Cal. Go v ’ t Co d e § 82 5

. B u t, n o su ch situ atio n is
p resen t ed h ere; a ll d ef

en d an t s clearly acted w ith in th e sco pe o f th eir

em p l o y m en t an d w ere d ef

en d ed an d in d em

n if ied b y th e State.P E R A L T A V

. D I L L

A R D 45

state chooses to do so, the state ag e n t should not be heard to
arg ue that the imposition of liability on him indiv i d u ally is unfair. Section 1983 a

nd the Constitution do not c odif y a collateral source rule.

III

Today ’s decision, as J udg e Christen’s diss e n t convincing ly demonstrates, i s w rong on the record of this

case. B ut even if that were not so, the d ecision sweeps f ar too broadly

, effectively forecl o s i n g any liability for p ermanent injuries and deaths ca u s e d by the deliberate indifference o f
state funding authori t i e s. I therefore dissent from the affirmance of the judg

ment in favor of Dr. B rooks.

F or the reasons set forth in J udg e Christen’s dissent, I also
cannot join the majority opinion insofar as it affirms the judg ment as a matter of law in favor of Dr. Dillard (pretermitting

, as did the district court, any claim of qualified immunity ). A s to D r. F itter, the majority correctly holds that he was entitled to qualified immunity

, a s he r elied on his staff’s medical judg ment, and I join its opinion o n that score alone.