Cion Peralta v. T. Dillard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CION ADONIS PERALTA, No. 09-55907

Plaintiff-Appellant,

D.C. No.

v. 2:05-cv-01937-

JVS-PLA

T. C. DILLARD, Chief Dental Officer;

S. BROOKS, D.D.S. Staff Dentist; J.

FITTER, Chief Medical Officer, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted En Banc

September 18, 2013—San Francisco, California

Filed March 6, 2014

Before: Alex Kozinski, Chief Judge, Barry G. Silverman,

Susan P. Graber, Richard C. Tallman, Johnnie B.

Rawlinson, Richard R. Clifton, Jay S. Bybee, Milan D.

Smith, Jr., Morgan Christen, Jacqueline H. Nguyen and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Chief Judge Kozinski;

Partial Concurrence and Partial Dissent by Judge Christen;

Partial Concurrence and Partial Dissent by Judge Hurwitz

2 PERALTA V. DILLARD

SUMMARY*

Prisoner Civil Rights

The en banc court affirmed the district court’s judgment

following a jury verdict in favor of a prison dentist and

affirmed the district court’s judgment as a matter of law in

favor of prison administrators in a 42 U.S.C. § 1983 action

alleging deliberate indifference to medical needs in

connection with a prisoner’s dental care.

The court held that a prison official sued for money

damages under § 1983 may raise a lack of available resources

as a defense. The court held that the district court’s

challenged jury instruction in this case properly advised the

jury to consider the resources that the prison dentist had

available when determining if he was deliberately indifferent.

The court held that to the extent the court’s prior decisions in

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

McDaniel, 681 F.3d 978 (9th Cir. 2012), could be read to

apply to monetary damages against an official who lacks

authority over budgeting decisions, they were overruled.

The court held that the jury had sufficient evidence on

which to base a finding that a lack of resources caused any

delay in providing care. The court further held that the

district court did not err by granting judgment as a matter of

law in favor of Dr. Fitter, the prison’s Chief Medical Officer

and Dr. Dillard, the Chief Dental Officer.

*

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

been prepared by court staff for the convenience of the reader.

PERALTA V. DILLARD 3

The court held that the district court’s prior decision

refusing to grant Fitter and Dillard summary judgment did

not, under law of the case, preclude the district court from re-

considering its pretrial ruling.

Dissenting in part and concurring in part, Judge Christen,

joined by Judges Rawlinson, M. Smith, and Hurwitz and

Judge Bybee as to parts I, II, and III, stated that the decision

overturned more than thirty years of circuit precedent by

holding that lack of resources is a defense to providing

constitutionally inadequate care for prisoners. She joined the

majority in affirming the dismissal of plaintiff’s claims

against Dr. Fitter, but she disagreed with the majority’s

conclusion that a directed verdict was appropriate on

plaintiff’s claims against Dr. Dillard.

Dissenting in part and concurring in part, Judge Hurwitz,

joined by Judges Rawlinson, M. Smith and Christen, and

Judge Bybee as to parts I and II, stated that the majority

effectively held that a state can first choose to underfund the

medical treatment of its wards, and then excuse the Eighth

Amendment violations caused by the underfunding. Judge

Hurwitz stated that as to Dr. Fitter, the majority correctly held

that he was entitled to qualified immunity as he had relied on

his staff’s medical judgment.

COUNSEL

Derek Milosavljevic (argued), Kirkland & Ellis LLP, Los

Angeles, California, for Plaintiff-Appellant.

Janine K. Jeffery (argued) and Oren Rosenthal, Reily &

Jeffery, Northridge, California, for Defendants-Appellees.

4 PERALTA V. DILLARD

Melinda Bird and Monisha Coelho, Disability Rights

California, Los Angeles, California; Donald Specter and

Kelly Knapp, Prison Law Office, Berkeley, California; Ernest

Galvan and Lisa Ells, Rosen Bien Galvan & Grunfeld, LLP,

San Francisco, California; Paula D. Pearlman and Michelle

Uzeta, Disability Rights Legal Center, Los Angeles,

California, for Amicus Curiae Disability Rights California,

Disability Rights Legal Center, Prison Law Office, and Rosen

Bien Galvan & Grunfeld, LLP.

OPINION

Chief Judge KOZINSKI delivered the opinion of the court,

which is joined in full by Judges SILVERMAN, GRABER,

TALLMAN, CLIFTON and NGUYEN. Judge BYBEE joins

Part II.B.

KOZINSKI, Chief Judge:

We consider whether prison officials sued for money

damages under 42 U.S.C. § 1983 may raise a lack of available

resources as a defense.

I. Background

At the time Cion Adonis Peralta arrived at California

State Prison, Los Angeles County (Lancaster), the prison had

only three or four dentists and three or four dental assistants.

It had no office technicians or dental hygienists. State policy

calls for one dentist for every 950 prisoners, but the ratio at

Lancaster was closer to one to 1,500. In addition, the dentists

there were responsible for roughly 1,800 inmates at other

facilities, bringing the ratio to around one to 2,000.

PERALTA V. DILLARD 5

Peralta requested dental care almost immediately. He

complained that his teeth hurt, he had cavities and his gums

were bleeding. When he hadn’t received care a few weeks

after his initial request, Peralta filed a written appeal, in

which he again claimed that he had cavities and severe pain.

In the informal response to that appeal, Peralta was put on a

waiting list, which was generally nine to twelve months long.

Peralta then pursued a formal appeal. He was

subsequently interviewed by Dr. Brooks, a staff dentist.

Brooks asked Peralta which tooth hurt most, took X-rays and

scheduled Peralta for an extraction of that tooth. Brooks also

gave Peralta a few days’ supply of Ibuprofen. Dissatisfied,

Peralta filed a second-level appeal a few days later, and was

told that “further treatment [would] be provided based on the

waiting list.”

About three months after his initial interview, Peralta had

his second visit with Brooks. During that visit, Peralta was

supposed to have the scheduled extraction, but he declined to

go through with it after Brooks told him removal was

unnecessary. Brooks gave Peralta more Ibuprofen and

medication for an infection. Eleven months after that, Brooks

saw Peralta again and took X-rays, reviewed Peralta’s history

and cleaned his teeth.

After Peralta declined to have his tooth extracted, but

before his cleaning, he filed this section 1983 lawsuit for

money damages against Brooks; the prison’s Chief Dental

Officer, Dr. Dillard; and the Chief Medical Officer, Dr. Fitter.

He claimed that their deliberate indifference to his serious

medical needs violated his Eighth Amendment rights.

See 42 U.S.C. § 1983. In the end, his claims amounted to a

several-month delay in getting his teeth cleaned and an

6 PERALTA V. DILLARD

alleged failure to treat his pain. These claims went to trial,

but after Peralta presented his case, the district court granted

directed verdicts to Dillard and Fitter. The jury found for

Brooks. Peralta challenges the jury instruction, as well as the

judgment in favor of Dillard and Fitter.

II. Discussion

Prison officials violate the Eighth Amendment if they are

“deliberate[ly] indifferen[t] to [a prisoner’s] serious medical

needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A

medical need is serious if failure to treat it will result in

“‘significant 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. 1992), overruled on other grounds by WMX Techs., Inc.

v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). A prison

official is deliberately indifferent to that need if he “knows of

and disregards an excessive risk to inmate health.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994).

A. “Cost Defense” Jury Instruction

The court instructed the jury that “[w]hether a dentist or

doctor met his duties to Plaintiff Peralta under the Eighth

Amendment must be considered in the context of the

personnel, financial, and other resources available to him or

her or which he or she could reasonably obtain.” The court

also told the jury that “[a] doctor or dentist is not responsible

for services which he or she could not render or cause to be

rendered because the necessary personnel, financial, and

other resources were not available . . . or which he or she

could not reasonably obtain.”

PERALTA V. DILLARD 7

We review a district court’s formulation of civil jury

instructions for 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. 2009). Jury instructions must be

supported by the evidence, fairly and adequately cover the

issues presented, correctly state the law, and not be

misleading. Id. at 1181.

1. The Instruction’s Statement of the Law

The Supreme Court has not said whether juries and judges

may consider a lack of resources as a defense in section 1983

actions. See Wilson v. Seiter, 501 U.S. 294, 302 (1991)

(“[T]he validity of a ‘cost’ defense as negating the requisite

intent is not at issue in this case . . . .”); see also Harris v.

Angelina Cnty., 31 F.3d 331, 336 (5th Cir. 1994). But the

Court has told us that prison officials aren’t deliberately

indifferent to a prisoner’s medical needs unless they act

wantonly, see Estelle, 429 U.S. at 104, and whether an

official’s conduct “can be characterized as ‘wanton’ depends

upon the constraints facing [him],” Wilson, 501 U.S. at 303.

The Court has also told us that, even if an official knows of

a substantial risk, he’s not liable “if [he] responded

reasonably.” Farmer, 511 U.S. at 844.

What is reasonable depends on the circumstances, which

normally constrain what actions a state official can take. This

case is a fine example. Peralta rests his claim on having to

wait for dental care, but prisons are a particularly difficult

place to provide such care. Security concerns dictate that

only one prisoner be in the examination room at a time, even

if there’s more than one chair, and that no prisoner be left

alone, lest he try to use dental tools as weapons. Further

8 PERALTA V. DILLARD

exacerbating the problem, only emergency cases can be seen

when the prison is in lockdown, and dentists can’t accept

prisoners’ complaints at face value, as inmates often try to

jump the line by exaggerating their symptoms.

These challenges aside, there simply weren’t enough

dentists at Lancaster to provide every prisoner with dental

care on demand. The ratio of dentists to prisoners was less

than half what the state said it should be, there were no office

technicians or dental hygienists and, on many occasions,

Brooks had no dental assistant. Peralta doesn’t argue that

Brooks was responsible for these constraints. Nor could he,

since Brooks had no control over the budget.

Peralta would have had the jury ignore that there was no

money or staff available to treat him immediately, and hold

Brooks personally liable for failing to give Peralta care that

Brooks would have found impossible to provide. Peralta

claims that this approach is compelled by our decisions in

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

McDaniel, 681 F.3d 978 (9th Cir. 2012). In Jones, we

reversed a district court’s dismissal of a pretrial detainee’s

deliberate indifference claims because we found “no other

explanation in the record than the budget concerns” for

denying treatment, and “[b]udgetary constraints . . . do not

justify cruel and unusual punishment.” 781 F.2d at 771. In

Snow, we reversed a district court’s grant of summary

judgment in favor of prison officials who delayed an inmate’s

surgery, partially due to a lack of resources, because the

desire to avoid paying for a surgery is an “improper motive[]”

for delaying 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 help Peralta. In Jones and

PERALTA V. DILLARD 9

Snow, plaintiffs sought both money damages and injunctions.

Neither case dealt with jury instructions; the question in both

was whether the case could proceed at all.

Lack of resources is not a defense to a claim for

prospective relief because prison officials may be compelled

to expand the pool of existing resources in order to remedy

continuing Eighth Amendment violations. See LaMarca v.

Turner, 995 F.2d 1526, 1536–39, 1542 (11th Cir. 1993)

(prison official wouldn’t be personally liable if he did

everything he could, but prisoner could get an injunction

against official in his official capacity); see also Watson v.

City of Memphis, 373 U.S. 526, 537 (1963) (rejecting

argument that city couldn’t desegregate parks because of

budgetary concerns); Wright v. Rushen, 642 F.2d 1129, 1134

(9th Cir. 1981) (“[C]osts cannot be permitted to stand in the

way of eliminating conditions below Eighth Amendment

standards.”). A case seeking prospective relief thus can’t be

dismissed simply because there is a shortage of resources.

Damages are, by contrast, entirely retrospective. They

provide redress for something officials could have done but

did not. What resources were available is highly relevant

because they define the spectrum of choices that officials had

at their disposal. To the extent Jones and Snow can be read

to apply to monetary damages against an official who lacks

authority over budgeting decisions, they are overruled. Judge

Christen claims we are also overruling Spain v. Procunier,

600 F.2d 189 (9th Cir. 1979), but this is plainly not so. Spain

involved only injunctive relief; it has nothing to say about

damages, much less jury instructions. See id. at 192.

Peralta seeks only damages. Allowing the jury to

consider the constraints under which an individual doctor

10 PERALTA V. DILLARD

operates in determining whether he is liable for money

damages because he was deliberately indifferent doesn’t

mean that prisoners have no remedy for violations of their

Eighth Amendment rights. For example, although prisoners

can’t sue states for monetary relief, they can sue for

injunctions to correct unconstitutional prison conditions. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 & n.10

(1989); see also Brown v. Plata, 131 S. Ct. 1910 (2011).

Section 1983 also authorizes prisoners to sue municipal

entities for damages if the enforcement of a municipal policy

or practice, or the decision of a final municipal policymaker,

caused the Eighth Amendment violation. See City of St.

Louis v. Praprotnik, 485 U.S. 112, 138 (1988); Pembaur v.

City of Cincinnati, 475 U.S. 469, 481 (1986); Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 663 & n.7, 685–86 (1978). A

chronic shortage of resources may well amount to a policy or

practice for which monetary relief may be available under

Monell, but Monell claims can’t be brought against states,

which are protected by the Eleventh Amendment. See, e.g.,

Quern v. Jordan, 440 U.S. 332, 345 (1979). The prison

where Peralta was held was, of course, run by the state.

Our dissenting colleagues would have the jury hold

Brooks liable for delay in treatment caused by shortages

beyond his control, on the theory that the state will wind up

paying any damages award. According to the dissenters, this

will give the state an incentive to improve prison conditions.

Christen Dissent 28–30; Hurwitz Dissent 43–45. But the

state is protected from monetary damages by the Eleventh

Amendment. We may not circumvent this protection by

imputing the state’s wrongdoing to an employee who himself

has committed no wrong. The dissenters attempt an end run

around the Eleventh Amendment by subjecting the state to

PERALTA V. DILLARD 11

precisely the kind of economic pressure against which the

amendment protects it.

We have no quarrel with the dissenters’ view that Peralta

may have suffered an Eighth Amendment violation. If the

state provided insufficient resources to accord inmates

adequate medical care, it could be compelled to correct those

conditions. See Plata, 131 S. Ct. 1910; Spain, 600 F.2d 189.

But such a lawsuit could provide no redress for past

constitutional violations because the state is protected by

sovereign immunity, “a fundamental aspect of the sovereignty

which the States enjoyed before the ratification of the

Constitution, and which they retain today.” Alden v. Maine,

527 U.S. 706, 713 (1999). Congress could abrogate this

immunity, but it has not done so for cases brought under

42 U.S.C. § 1983. See Quern, 440 U.S. at 345. We decline

to bring about by indirection what Congress has chosen not

to do expressly.

An “intent requirement is either implicit in the word

‘punishment’ or is not; it cannot be alternately required and

ignored as policy considerations might dictate.” Wilson,

501 U.S. at 301–02. The Supreme Court has told us that it is.

A prison medical official who fails to provide needed

treatment because he lacks the necessary resources can hardly

be said to have intended to punish the inmate. The

challenged instruction properly advised the jury to consider

the resources Brooks had available in determining whether he

was deliberately indifferent.

2. The Evidence Supporting the Jury Instruction

Peralta also argues that the jury instruction shouldn’t have

been given, even if it was correct, because there was no

12 PERALTA V. DILLARD

evidence that budgetary constraints actually affected his

treatment. Even if Peralta’s argument had merit, we would

reject it because he invited the error. See United States v.

Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Peralta

himself first suggested that the evidence introduced at trial

supported an instruction about budgetary constraints. He

proposed an instruction that stated, as did the final

instruction, that “[e]vidence has been presented during the

trial regarding dental staffing levels and the availability of

resources at the Lancaster correctional facility where Plaintiff

Peralta was incarcerated during the time of his alleged

injuries,” but his instruction would have required the jury not

to consider it. Peralta’s proposed instruction presupposed

that there was sufficient evidence about the lack of resources

at Brooks’s disposal. He can’t now turn around and

challenge the instruction containing some of the very text he

proposed, on the new theory that it’s unsupported by the

evidence.

In any event, there’s plenty of evidence to support a

finding that a lack of resources prevented Brooks from

cleaning Peralta’s teeth sooner. For example, in the Inmate

Appeal Response, Brooks listed “staffing shortages beyond

our control” as an explanation for the “waiting list for dental

procedures.” There was also evidence that the prison had less

than half the number of dentists required by law, there were

no dental hygienists and dentists frequently had to work

without dental assistants.

Peralta argues that there’s no proof connecting the staff

shortages to his lack of care. But Brooks testified that he

focused on a prisoner’s most pressing complaint because he

didn’t have enough time, and Fitter testified that staff

shortages limited the amount of time Brooks could have spent

PERALTA V. DILLARD 13

with Peralta during any visit. Peralta argues that Brooks

could at least have put him on the emergency list, but the

decision whether to put an inmate on the emergency list calls

for a balancing of the inmate’s needs against the available

resources and the needs of other patients. Because resources

were limited, putting Peralta on the emergency list would

have delayed another prisoner’s treatment. It was up to the

jury to decide whether Brooks was deliberately indifferent by

failing to put Peralta on the emergency list, given “the

personnel, financial, and other resources available to him . . .

or which he . . . could reasonably obtain.”

Peralta also argues that Brooks had the resources to

prescribe him additional (or different) pain medication. But

Brooks did prescribe Ibuprofen, and Peralta testified that it

helped alleviate his pain. There’s no evidence that Peralta

requested further medication, although other inmates did so

routinely, until months later when he next met with Brooks.

During this second visit, Brooks gave Peralta more Ibuprofen

and medicine to treat an infection. Brooks testified that he

didn’t see any signs 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. It would have been surprising if the jury had concluded

otherwise.

B. Judgment as a Matter of Law

Peralta also challenges the district court’s decision to

grant Fitter, the Chief Medical Officer, and Dillard, the Chief

Dental Officer, judgment as a matter of law. See Fed. R. Civ.

P. 50(a). Judgment as a matter of law is warranted “‘when

the evidence presented at trial permits only one reasonable

conclusion.’” Torres v. City of Los Angeles, 548 F.3d 1197,

14 PERALTA V. DILLARD

1205 (9th Cir. 2008) (quoting Santos v. Gates, 287 F.3d 846,

851 (9th Cir. 2002)). We review de novo the district court’s

decision to grant judgment as a matter of law, drawing all

reasonable inferences in favor of Peralta. Id. at 1205–06.

Supervisors aren’t vicariously liable for constitutional

violations under section 1983. Hunt v. Dental Dep’t,

865 F.2d 198, 200 (9th Cir. 1989). But they can be liable for

their own conduct. Redman v. Cnty. of San Diego, 942 F.2d

1435, 1445–46 (9th Cir. 1991) (en banc), abrogated on other

grounds by Farmer, 511 U.S. 825. Consequently, a prison

administrator can be liable for deliberate indifference to a

prisoner’s medical needs if he “knowingly fail[s] to respond

to an inmate’s requests for help.” Jett, 439 F.3d at 1098.

1. Serious medical need

A medical need is serious if “failure to treat a prisoner’s

condition could result in further significant injury or the

unnecessary and wanton infliction of pain.” Id. at 1096

(internal quotation marks omitted). Peralta’s claim arises

primarily out of the delay in cleaning his teeth. The mere

failure to provide a routine tooth cleaning doesn’t create a

serious medical need. Hallett v. Morgan, 296 F.3d 732,

745–46 (9th Cir. 2002). The Eighth Amendment “‘requires

neither that prisons be comfortable nor that they provide

every amenity that one might find desirable.’” Id. at 745

(quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.

1982)).

But Peralta alleges that he was denied more than a routine

cleaning. He alleges that he had severe pain, infected teeth,

cavities and bleeding gums, and that a cleaning was necessary

to treat those medical conditions. We’ve held that the

PERALTA V. DILLARD 15

“existence of chronic and substantial pain” indicates that a

prisoner’s medical needs are serious, McGuckin, 974 F.2d at

1060, and recognized that a delay as short as three months in

receiving necessary dental care can create a genuine issue of

material fact, Hunt, 865 F.2d at 200–01. Defendants haven’t

challenged these precedents, nor disputed before us that

Peralta has adequately alleged a serious medical need. We

thus assume, without deciding, that this is so.

2. Fitter’s Subjective Intent

As the Chief Medical Officer, Fitter was required to—and

did—sign Peralta’s second-level appeal. The case against

Fitter rests entirely on this signature. But the fact that Fitter

signed the form doesn’t mean that he knew about Peralta’s

complaints. To be liable, “the official must both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference.” Farmer, 511 U.S. at 837. Even if a prison

official should have been aware of the risk, if he “was not,

then [he] has not violated the Eighth Amendment, no matter

how severe the risk.” Gibson v. Cnty. of Washoe, 290 F.3d

1175, 1188 (9th Cir. 2002).

Peralta hasn’t shown that Fitter should have been aware

of any risk to Peralta’s health, let alone that Fitter actually

was aware. Although he supervised the dental department,

Fitter isn’t a dentist, and he didn’t independently review

Peralta’s claims or read his chart before signing off on the

second-level appeal. Instead, he relied on the medical

opinions of the staff dentists who had investigated Peralta’s

complaints and already signed off on the treatment plan.

16 PERALTA V. DILLARD

Fitter understood his role to be largely administrative,

ensuring that the proper personnel had signed off on a

reasonable course of treatment, not second guessing staff

dentists’ medical judgments. And how could he have? Even

if he had looked at Peralta’s chart, he wouldn’t have been

able to tell whether Peralta had a serious medical need and

what the best course of treatment was. See Johnson v.

Doughty, 433 F.3d 1001, 1011 (7th Cir. 2006); Meloy v.

Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002).

Peralta argues that a reasonable jury could nevertheless

“conclude that by signing off on dental second-level appeals

and placing inmates back on the extensive waiting list

without reviewing their records . . . Fitter was . . . deliberately

indifferent to the serious risk posed by his actions to inmates

in Mr. Peralta’s position.” (emphasis added); see Redman,

942 F.2d at 1446. But Fitter’s decision to sign appeals that he

knew had already been reviewed by at least two qualified

dentists, when he had no expertise to contribute to that

review, isn’t a wanton infliction of unnecessary pain. See

Estelle, 429 U.S. at 104.

3. Dillard’s Subjective Intent

Unlike Fitter, Dillard is a dentist. Although he was

required to sign Peralta’s second-level appeal, he didn’t.

Instead, the appeal was signed by Dr. Cassim, a staff medical

doctor. Dillard didn’t review Peralta’s medical records or

meet with him prior to the filing of the lawsuit. Dillard

testified that he would authorize someone else to sign the

second-level responses on his behalf when he knew he would

be absent from the prison because appeals had to be

processed quickly. As there’s no evidence that Dillard

PERALTA V. DILLARD 17

participated in Peralta’s treatment, Peralta hasn’t proven that

Dillard was aware of Peralta’s complaints.

Peralta argues that the lawsuit itself put Dillard on notice,

but he cites no cases holding that the mere filing of a lawsuit

can create independent liability under section 1983.

Section 1983 complaints often allege numerous violations,

many of which turn out not to be supported by the evidence.

It would be unfair to make section 1983 defendants liable

merely for failing to sift through what are often rambling and

incoherent pro se complaints to determine the truth of each

allegation, even before discovery has begun.

Peralta also argues that Dillard was deliberately

indifferent to the suffering of prisoners in Peralta’s position

by having a non-dentist sign inmate appeals and failing to

read them himself. To find for Peralta, a jury would have had

to conclude that Dillard’s behavior wasn’t merely negligent,

but wanton. See Estelle, 429 U.S. at 104. At most, Peralta

has shown that Dillard failed to follow required procedures.

But Dillard’s failure to follow such procedures isn’t, of itself,

enough to establish a violation of Peralta’s constitutional

rights. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)

(order). Peralta must prove both (1) that the failure to follow

procedure put inmates at risk and (2) that Dillard actually

knew that his actions put inmates at risk. See Gibson,

290 F.3d at 1188. There wasn’t enough evidence for any

reasonable juror to draw that conclusion.

Like Fitter, Dillard understood his role to be

administrative. He didn’t think that the Chief Dental Officer

was required to interview prisoners or review medical

records, or that he should second-guess staff dentists’

18 PERALTA V. DILLARD

diagnoses. Dillard knew that first-level appeals were signed

by two staff dentists, in this case Drs. Kumar and Brooks, and

that another doctor would have reviewed the appeal in his

place to make sure all of the proper procedures were

followed. Perhaps Dillard should have known that his actions

put prisoners at risk. But, “[i]f a person should have been

aware of the risk, but was not, then the person has not

violated the Eighth Amendment, no matter how severe the

risk.” Id. Because Peralta hasn’t shown that Dillard had

actual knowledge, judgment as a matter of law was

appropriate.

In any event, any error was harmless. See Goulet v. New

Penn Motor Express, 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 Fitter were

liable after finding that Brooks was not. See supra pp. 10–13;

cf. Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009);

Jackson v. City of Bremerton, 268 F.3d 646, 653–54 (9th Cir.

2001). Peralta hasn’t pointed to anything that Fitter or

Dillard could have done that Brooks couldn’t. Like Brooks,

Fitter and Dillard had no control over the budget. Not only

did they have no say over how much money was allocated to

the prison, but they couldn’t take money allocated for one

purpose and use it for another. They had no input into the

prison’s funding levels or even how many dental positions the

prison would have. Because the case against Dillard and

Fitter was identical to that against Brooks, by finding Brooks

not liable, the jury essentially resolved the question of

Dillard’s and Fitter’s liability as well.

PERALTA V. DILLARD 19

4. Law of the Case

Finally, Peralta argues that the law of the case doctrine

precluded the district court from granting Fitter and Dillard

judgment as a matter of law because it had previously refused

to grant them summary judgment. But the denial of a

summary judgment motion is never law of the case because

factual development of the case is still ongoing. Denial of

summary judgment may result from a factual dispute at the

time. That dispute may disappear as the record develops. See

Shouse v. Ljunggren, 792 F.2d 902, 904 (9th Cir. 1986)

(citing Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74,

79–80 (9th Cir. 1979)).

Peralta points to a passage in Federal Insurance Co. v.

Scarsella Bros., 931 F.2d 599 (9th Cir. 1991), indicating that

we overstated the rule when we said in Shouse that “the law

of the case doctrine does not apply to pretrial rulings.” Id. at

601 n.4 (internal quotation marks omitted). According to

Scarsella Bros., pretrial rulings can create binding law of the

case if the court “clearly intended to decide the issues at

hand.” Id.

To the extent that Scarsella Bros. purported to hold that

the law of the case doctrine bars district courts from re-

considering pretrial rulings, we overrule it. Pretrial rulings,

often based on incomplete information, don’t bind district

judges for the remainder of the case. Given the nature of

such motions, it could not be otherwise. At the summary

judgment stage, for example, trial courts ask only whether

there could 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 rulings

on the evidence that they think could be introduced at trial.

20 PERALTA V. DILLARD

But when considering whether to grant judgment as a matter

of law, they look only at the evidence actually introduced at

trial.

It makes no sense to say that a ruling that the plaintiff

could hypothetically prove some set of facts that would

support his claim prevents a district court from later finding

that the plaintiff had not, in fact, proven those facts. Nor to

say that if a district court realizes an earlier ruling was

mistaken, it can’t correct it, but must instead wait to be

reversed on appeal. All that would do is waste both the

courts’ and litigants’ time and resources. Thus, Wright and

Miller have observed that, although “[i]t is proper [for a

district judge] to refuse to reconsider a summary judgment

ruling[,] . . . [d]enial of summary judgment often is

reconsidered.” 18B Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure:

Jurisdiction 2d § 4478.1 (2002). “Denial can easily be

followed,” as it was here, “by judgment as a matter of law or

dismissal after trial.” Id.

Peralta’s case illustrates the point. The evidence

introduced at trial went beyond that presented in the motion

for summary judgment. See Old Person v. Brown, 312 F.3d

1036, 1039 (9th Cir. 2002). Dillard and Fitter moved for

summary judgment on the grounds that (1) Peralta hadn’t

presented expert evidence and (2) Dillard and Fitter weren’t

personally involved in Peralta’s care. The district court found

that the lack of an expert alone wasn’t enough to entitle Fitter

and Dillard to summary judgment, and that there were

material questions of fact as to whether Peralta had a serious

medical need, what kind of care Peralta received at the prison

and when Fitter and Dillard became aware of Peralta’s

complaints. The court noted, for example, that “[w]hether or

PERALTA V. DILLARD 21

not Dillard personally signed the Second Level Appeal,

authorized someone else to sign on his behalf, or was wholly

unaware of the document is a question of fact.” But after

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

no evidence that either doctor knew about Peralta’s alleged

condition. Therefore, the district court didn’t abuse its

discretion in granting Dillard and Fitter judgment as a matter

of law. See Milgard Tempering, Inc. v. Selas Corp. of Am.,

902 F.2d 703, 714–15 (9th Cir. 1990).

AFFIRMED.

CHRISTEN, Circuit Judge, with whom RAWLINSON, M.

SMITH, and HURWITZ, Circuit Judges, join, and with

whom BYBEE, Circuit Judge, joins as to Parts I, II, and III,

dissenting in part and concurring in part:

Twenty years ago, the United States Supreme Court

observed: “The Constitution does not mandate comfortable

prisons, but neither does it permit inhumane ones, and it is

now settled that the treatment a prisoner receives in prison

and the conditions under which he is confined are subject to

scrutiny under the Eighth Amendment.” Farmer v. Brennan,

511 U.S. 825, 832 (1994) (internal citations and quotation

marks omitted). The majority characterizes Peralta’s Eighth

Amendment claim as arising from a “several-month delay in

getting his teeth cleaned and an alleged failure to treat his

pain.” But Peralta’s claim is based on the defendants’ failure

to put him on the prison’s emergency dental care list for

conditions the prison’s dentist admitted qualified for

emergency care: severe pain, bleeding gums, and a bacterial

infection. Peralta remained on the prison’s routine care list

22 PERALTA V. DILLARD

for 18 months. During that time, he developed periodontitis

and severe bone loss, and the prison’s treating dentist

acknowledged he suffered severe pain.

The decision announced today overturns more than thirty

years of circuit precedent by holding that lack of resources is

a defense to providing constitutionally inadequate care for

prisoners. Because it will deny any remedy for prisoners who

have suffered injuries due to prison officials’ deliberate

indifference and eliminates an important incentive for

improving prison conditions, I respectfully dissent.

I.

Peralta complained of cavities, bleeding gums, and severe

pain within days of arriving at California State Prison, Los

Angeles County (Lancaster). After about a month without

treatment, Peralta filed his first appeal, asking for treatment

for his infected teeth, cavities, and severe pain.

Dr. Brooks, a treating dentist at the prison, interviewed

Peralta about four months later. He diagnosed Peralta with

periodontal disease, a bacterial infection that can cause the

gums to swell and bleed and can lead to the loss of the bone

that supports the teeth. Dr. Brooks testified that cleaning and

scaling is part of the treatment for periodontal disease.

Dr. Brooks did not doubt that Peralta was in severe pain,

and his testimony confirmed that Peralta’s dental problems

entitled him to a spot on the emergency list. Working with

too few colleagues and too many patients to see, Dr. Brooks

did not treat Peralta’s periodontal disease or prescribe

antibiotics to treat Peralta’s infection. Instead, he asked

Peralta which tooth hurt the most and scheduled that tooth for

PERALTA V. DILLARD 23

extraction three months later. Dr. Brooks did not examine

Peralta’s other teeth for cavities or infection.

Peralta appealed again, stating that he had been left with

bleeding gums and infected teeth and was in severe pain. He

received a written response informing him that there were

long delays at the prison and that he was on a waiting list for

dental care.

The dentists at Lancaster prison kept one waiting list for

patients needing routine care and another list for patients

needing emergency care. If a prisoner’s request was

classified as an emergency, he was entitled to receive

treatment ahead of others on the routine care list. Peralta

remained on the waiting list for routine dental care, and he

waited three more months for his second appointment.

At this visit, Dr. Brooks told him that the tooth could be

saved after all, and Peralta decided against the scheduled

extraction. Again Dr. Brooks did not prescribe a course of

treatment for Peralta’s periodontal disease or clean his teeth.

He did not address Peralta’s concern that he had cavities.

Peralta received twelve Ibuprofen pills and some medication

for his infection, and eleven more months passed before Dr.

Brooks saw Peralta again.

By the time of the third visit, Peralta was suffering from

advanced periodontitis. We do not need to take Peralta’s

word about the nature or severity of his condition; Dr. Brooks

testified to these observations and diagnosis at trial. He also

testified that Peralta’s gums were bleeding and that he had

sustained severe bone loss by the time of the third visit, which

occurred about 18 months after Peralta first asked for

24 PERALTA V. DILLARD

treatment at Lancaster. This time, Dr. Brooks cleaned

Peralta’s teeth but still did not examine them for cavities.

Peralta was transferred to Mule Creek State Prison less

than two months later. There, he received treatment for

periodontal disease and had seven cavities filled over the

course of several visits. Peralta testified that he was happy

with the dental care he received at Mule Creek.

The defendants argued at trial that Dr. Brooks was

overworked and the prison understaffed. To anyone familiar

with the conditions 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 beyond the capacity of medical

and mental health facilities; and created unsanitary and

unsafe conditions that make progress in the provision of care

difficult or impossible to achieve.”). Nor is it surprising that

providers working in chronically understaffed and

underfunded prison medical and dental facilities are

sometimes unable to provide adequate care. Id. (describing

how overcrowding leads to “grossly inadequate provision of

medical and mental health care”).

The defendants argued that they should be relieved of

liability for any violations of the Eighth Amendment because

of the lack of resources at Lancaster. Consistent with Ninth

Circuit precedent, Peralta proffered a jury instruction that

“the lack of staffing or other resources in the dental

department at the Lancaster facility is not a defense to

liability under Section 1983.” Though this had been a correct

statement of the law in the Ninth Circuit for approximately

thirty years, see Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.

PERALTA V. DILLARD 25

1986); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979),

the district court instructed the jury that defendants were

entitled to rely on lack of resources as a defense to the

allegation that Peralta’s Eighth Amendment rights had been

violated.

II.

The Eighth Amendment imposes upon prison officials the

duty to provide humane conditions of confinement; prison

officials must ensure that prisoners receive adequate food,

clothing, shelter, and medical care. Farmer, 511 U.S. at 832.

A prison official violates the Eighth Amendment when two

conditions are met: “First, the deprivation alleged must be,

objectively, sufficiently serious; a prison official’s act or

omission must result in the denial of the minimal civilized

measure of life’s necessities.” Id. at 834 (internal citations

and quotation marks omitted). Though the majority

characterizes Peralta’s case as being about “the delay in

cleaning his teeth,” in the end the majority recognizes 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 198, 199–200 (9th Cir. 1989)

(allegation that prisoner suffered bleeding gums and broken

teeth for three months while waiting for dental care was

sufficient to state a claim for deliberate indifference under

§ 1983). The first prong of Farmer is not at issue on appeal.

Farmer’s second requirement is that “a prison official

must have a sufficiently culpable state of mind.” Farmer,

511 U.S. at 834 (internal citations and quotation marks

omitted). “In prison-conditions cases that state of mind is one

of ‘deliberate indifference’ to inmate health or safety.” Id.

26 PERALTA V. DILLARD

Farmer examined the deliberate indifference standard and

made clear that a plaintiff need not demonstrate the prison

official intended harm, or even that the official knew harm

would result from the challenged conditions of confinement.

Id. at 835. Farmer held that a prison official may be liable

under the Eighth Amendment for deliberate indifference if

“the official knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference.” Id. at 837. In other words, the official must

“consciously disregard a substantial risk of serious harm.” Id.

at 839 (internal quotation marks and alteration omitted).

Today, our court overturns more than thirty years of

circuit precedent by holding that lack of resources is a

defense to a damages claim that a prisoner was denied the

constitutionally-required minimum threshold for adequate

care. The jettisoned circuit precedent dates back to 1979

when, writing for the Ninth Circuit, now-Justice Kennedy

explained that “the cost or inconvenience of providing

adequate facilities is not a defense to the imposition of a cruel

punishment.” Spain, 600 F.2d at 200. Our circuit reiterated

and reaffirmed this rule in Jones, 781 F.2d at 771, and, much

more recently, in Snow v. McDaniel, 681 F.3d 978, 984–87

(9th Cir. 2012).

The plaintiff in Jones filed a § 1983 suit seeking damages

and injunctive relief against a county jail, jail doctors,

supervisory jail personnel, and county officials for deliberate

indifference to his medical needs. 781 F.2d at 770. He

alleged that he was refused a necessary hernia surgery

because of the county’s “tight budget.” Id. at 771. Our

circuit reversed the district court’s dismissal of the claims

PERALTA V. DILLARD 27

against the individual defendants, holding that by alleging he

was denied necessary surgery due to budgetary constraints,

Jones pleaded sufficient facts to constitute deliberate

indifference. See id. at 771–72 (“We find no other

explanation in the record than the budget concerns for

denying Jones’s surgery. Budgetary constraints, however, do

not justify cruel and unusual punishment. . . . Because Jones

has properly alleged both that he had a serious medical need

and that the defendants were deliberately indifferent to that

need, he has adequately stated a cause of action under the

fourteenth amendment.” (emphasis added)). As in Jones,

Peralta’s case permits “no other explanation in the record

than the budget concerns” for denying treatment for his

“objectively, sufficiently serious” medical condition.

In Snow, we reaffirmed the rule that lack of resources

cannot be a defense for the failure to provide constitutionally-

required medical care for prisoners. The prisoner in Snow

sued doctors and wardens of the Nevada Department of

Corrections for declaratory and injunctive relief and damages

under § 1983. 681 F.3d at 984. He alleged these officials

were deliberately indifferent to his medical needs by denying

him necessary hip surgery. Id. at 984–85. Citing Jones, we

concluded that the record supported the inference that the

defendants denied surgery to Snow due to “improper

motives”—namely, “to avoid eventually paying 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 distinguish Jones and Snow on the basis that Peralta sought

only money damages. But the principle in Jones and Snow

was first articulated in Spain, which drew no distinction

28 PERALTA V. DILLARD

between the type of relief sought by the plaintiff: “The cost

or inconvenience of providing adequate facilities is not a

defense to the imposition of a cruel punishment.” 600 F.2d

at 200. The majority’s attempt to retroactively apply a

newly-minted distinction between claims for injunctions and

claims for damages to our decision in Spain is not

convincing. There is nothing tentative or limited about

Spain’s directive that “cost . . . is not a defense to the

imposition of a cruel punishment,” id., and, until today, we

have never suggested that cost may be a defense to Eighth

Amendment claims for damages. In fact, Snow suggests the

opposite. Snow specifically examined a plaintiff’s claim for

damages for defendants’ deliberate indifference to his serious

medical needs and rejected the cost defense in that context.

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 court had dismissed as

moot—was analyzed separately. See id. at 991.

The rule articulated in Spain, Jones, and Snow recognizes

that the constitutionally-required threshold for the humane

treatment of prisoners is impossible to safeguard if prison

officials are permitted to claim lack of resources as a defense.

In the case of California prisons, there can be no doubt that

chronic underfunding and overcrowding have plagued prison

administrators and the prison population for decades. See

Brown, 131 S. Ct. at 1923–26 (describing “exceptional”

overcrowding in California’s prisons and the resulting

inability to provide minimal, adequate medical care to

prisoners). The majority’s decision will effectively prevent

prisoners from bringing suits for damages against prison

officials who have violated their Eighth Amendment rights by

demonstrating deliberate indifference to serious medical

needs: those who actually control prison budgets are immune

PERALTA V. DILLARD 29

from damage suits, Tenney v. Brandhove, 341 U.S. 367,

376–79 (1951) (providing absolute immunity for state

legislators); and prison officials responsible for substandard

care or conditions will be shielded by the newly-announced

“lack of resources” defense.1 Under the lack of resources

defense, even prisoners who suffer grievous injury will be left

with no recourse at all—what good is prospective injunctive

relief to a prisoner whose appendix has burst? The concern

that holding prison officials personally liable would be unfair

overlooks the reality that California indemnifies employees

for torts committed within the scope of their employment,2

and pays the cost of their defense.3

The majority suggests that I seek an end run around the

Eleventh Amendment by subjecting the state to financial

pressure to avoid cruelly and unusually punishing its

prisoners. But the state’s decision to indemnify Dr. Brooks

was voluntary. Without the ability to seek damages,

prisoners who sustain injuries from overcrowding and

underfunding will be denied any meaningful form of relief,

even for grievous violations of the Eighth Amendment. As

Judge Hurwitz persuasively explains, California’s freely-

assumed obligation to its employees does not change this

simple fact. If anything, the new distinction between claims

for damages and claims for injunctive relief is an end run

around the congressional directive embodied in 42 U.S.C.

1

The majority suggests that a prisoner could pursue a Monell claim for

damages against a municipal entity. But municipal entities do not operate

state prisons.

2

Cal. Gov’t Code § 825.

3

Cal. Gov’t Code §§ 825, 995.

30 PERALTA V. DILLARD

§ 1983 that there should be redress when constitutional rights

are violated. Simpson v. Thomas, 528 F.3d 685, 692 (9th Cir.

2008) (“Congress’s purpose in enacting § 1983 was to create

a novel civil remedy for violation of established

constitutional rights.” (citation and internal quotation marks

omitted)).

Another overlooked reality is that the majority of cases in

which a prisoner successfully proves a violation of his

constitutional rights result in low damage awards for the

prisoner. See Woods v. Carey, 722 F.3d 1177, 1182 n.6 (9th

Cir. 2013) (quoting Margo Schlanger, Inmate Litigation,

116 Harv. L. Rev. 1555, 1603 (2003) (“[T]he mean damages

for cases won at trial by inmate civil rights plaintiffs was

$18,800, and the median was a mere $1000.”)). Even small

damage awards can affect substantial change in prison

conditions; yet the rule announced today eliminates this

modest, but important, incentive. Owen v. City of

Independence, Mo., 445 U.S. 622, 651 (1980) (“Moreover,

§ 1983 was intended not only to provide compensation to the

victims of past abuses, but to serve as a deterrent against

future constitutional deprivations, as well.”).

III.

The district court’s jury instruction should not have been

given, even under the newly-announced lack of resources

defense, because it was not supported by the evidence and it

was misleading; the evidence did not show that a lack of

resources had anything to do with Brooks’ failure to place

Peralta on the emergency care list. See Clem v. Lomeli,

566 F.3d 1177, 1181 (9th Cir. 2009) (“[J]ury instructions

must fairly and adequately cover the issues presented, must

PERALTA V. DILLARD 31

correctly state the law, and must not be misleading.” (internal

quotation marks omitted)).

There is no real question about whether the prison was

understaffed; in fact, it was so understaffed that Dr. Brooks

testified that the bulk of his workday was spent treating

patients on the emergency care list.4 He was only able to see

patients on the routine care list if there was any time

remaining at the end of the day. The net effect was that

prisoners on the routine care list waited about twelve months

before receiving any care.

Because those on the routine care list only saw a care

provider if there was any time remaining at the end of the

day, the existence of the emergency care list is critical to the

outcome of this case. Dr. Brooks testified that the particulars

of Peralta’s conditions—including bleeding gums and severe

pain—would qualify as a dental emergency that entitled

prisoners to be placed on the emergency care list. The Chief

Dental Officer at the prison, Dr. Dillard, also testified that

complaints of tooth pain and bleeding gums were given

higher priority than routine cleanings. Yet Peralta was never

moved to the emergency care list, and the defendants did

nothing to rebut the evidence that the prison’s overextended

staff would have more promptly provided dental care to

Peralta if he had been given a spot on that list. The district

court’s instruction was unsupported and misleading because

defendants offered no evidence to show that lack of funding

4

That the staff was over-committed cannot be disputed. As the majority

notes, Dr. Dillard testified that state policy called for a ratio of one dentist

for every 950 prisoners, but the inadequate resources allocated to

Lancaster left the prison with a ratio as high as one dentist to every 1,500

prisoners.

32 PERALTA V. DILLARD

had anything to do with the failure to move Peralta from the

routine care list to the emergency care list.

The majority suggests Peralta invited error by proffering

a jury instruction that directed the jury to disregard evidence

of understaffing and a lack of resources at the prison. This

argument is premised on the assertion that “Peralta’s

proposed instruction presupposed that there was sufficient

evidence about the lack of resources at Brook’s disposal.”

This mischaracterizes Peralta’s argument. Peralta’s proffered

instruction merely stated that the jury had heard evidence that

the prison was understaffed, which they had, and instructed

the jury that this lack of resources was not a defense to a

claim of deliberate indifference. The instruction actually

given to the jury turned the proffered instruction upside

down. Peralta’s proffered instruction was a correct statement

of the law; he did not invite any error.5

Without support from the record, the majority also asserts

that placing Peralta on the emergency care list would have

inevitably delayed another prisoner’s treatment. This is

speculation. The record reveals nothing about whether or

how patients on the emergency care list were triaged, or the

order in which prisoners on the emergency care list were

treated. What we do know is that Peralta would have

received care more promptly if he had been moved from the

routine care list to the emergency care list because Dr. Brooks

was only able to serve prisoners on the routine care list if

there was any time left over at the end of each day. The

5

Error is only invited when the objecting party (1) proposed the

allegedly flawed jury instruction; and (2) intentionally waived a known

right by doing so. United States v. Perez, 116 F.3d 840, 845 (9th Cir.

1997) (en banc).

PERALTA V. DILLARD 33

majority concedes that this was the way the emergency care

list worked by noting that prisoners sometimes try to “jump

the line” by exaggerating symptoms. Peralta wasn’t asking

for special consideration. He was asking only that he be

placed on the emergency list like other inmates with

qualifying dental conditions, rather than waiting months on

the routine care list until it was discovered he had

periodontitis and severe bone loss.

IV.

Before the case went to the jury, the district court entered

a directed verdict in favor of Drs. Fitter, the chief medical

officer, and Dillard, the chief dental officer. As to Dr.

Dillard, the district court found that “[t]here is no evidence

here that [Dr. Dillard] had actual knowledge of a serious

medical condition. . . . At most, he was negligent in the

discharge of his duties.” The district court similarly found

that there was “no evidence in the record that Dr. Fitter was

in fact aware of a serious medical condition which he then

treated with deliberate indifference. . . . At most, his conduct

was negligent.” The district court ruled that Dr. Fitter was

entitled to qualified immunity but did not make a comparable

ruling regarding Dr. Dillard.

I join the majority in affirming the dismissal of Peralta’s

claims against Dr. Fitter, but I disagree with the majority’s

conclusion that a directed verdict was appropriate on Peralta’s

claims against Dr. Dillard. As the supervising dentist, Dr.

Dillard testified that he was required by California law to

conduct second level appeals. See 15 Cal. Code Reg.

§ 3084.7(d)(2). Dr. Dillard also testified that he was the only

supervisor with the expertise to determine whether the first

level response to an inmate’s complaint was proper. But Dr.

34 PERALTA V. DILLARD

Dillard testified that it was his practice to authorize someone

else to sign second level responses on his behalf when he was

to be absent in order to process appeals quickly. Dr. Dillard

conceded that prison staff were able to get extensions to

review appeals, but he testified that “no one likes to be late on

appeals because it doesn’t look good and the warden doesn’t

favor that.” Apparently to avoid an untimely response that

wouldn’t look good, Dr. Dillard did not conduct or sign

Peralta’s second level appeal, nor was it even signed by a

dentist. Instead, Dr. Dillard arranged for a prison physician

to review the dental appeals in his place. Dr. Dillard never

met or examined Peralta, or looked at Peralta’s dental

records, until after Peralta filed his lawsuit.

The majority holds that Dr. Dillard’s failure to review

Peralta’s appeal—an obligation conferred upon him by

California law—shields him from liability. Unchecked, this

rule will allow care providers to defeat claims of deliberate

indifference by arguing that they had no actual knowledge of

the prisoner’s condition, even if that lack of knowledge is the

result of failing to perform duties expressly assigned to them.

The majority not only charts a path that permits prison

officials to escape liability by arguing that they have

inadequate funds to provide emergency care to inmates, it

condones an escape hatch from liability available to officials

willing to look the other way or who fail to perform assigned

duties that might cause them to gain actual knowledge of an

inmate’s condition. Neither circuit nor Supreme Court

authority permits such a result.

In Farmer, the Supreme Court rejected concerns that

prison officials could escape liability by “ignor[ing] obvious

dangers to inmates,” reasoning that a plaintiff need only show

the “official acted or failed to act despite his knowledge of a

PERALTA V. DILLARD 35

substantial risk of serious harm.” Farmer, 511 U.S. at 842.

A prisoner is not required to show that an official intended for

harm to occur, or that the official had actual knowledge that

harm would occur, to show that the Eighth Amendment has

been violated. Id.

Judgment as a matter of law is only appropriate if no

reasonable juror could find in Peralta’s favor. See El-Hakem

v. BJY Inc., 415 F.3d 1068, 1072 (9th Cir. 2005). Here, a

reasonable jury could conclude that some Lancaster

prisoners’ emergency dental problems would go unaddressed

if the only staff dentist qualified to review first level appeals

did not actually review them. Dr. Dillard knew he was

obligated to review the first level appeals, and he knew he

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

a jury could conclude that Dr. Dillard did not fulfill his

obligations and consciously disregarded a substantial risk of

serious harm to the dental needs of prisoners at Lancaster.

The law does not require that Dr. Dillard intended harm to

result. Judgment as a matter of law was inappropriate.

V.

“A prison that deprives prisoners of basic sustenance,

including adequate medical care, is incompatible with the

concept of human dignity and has no place in civilized

society.” Brown, 131 S. Ct. at 1928. “If government fails to

fulfill this obligation, the courts have a responsibility to

remedy the resulting Eighth Amendment violation.” Id.

The decision announced today overturns more than thirty

years of circuit precedent by holding that a lack of resources

is a defense to providing constitutionally inadequate care for

prisoners. It effectively eliminates § 1983 suits for damages

36 PERALTA V. DILLARD

against prison officials, denies relief to those prisoners who

have already suffered injuries, even when they are grievous,

and permits prison officials to escape liability by failing to

perform job duties imposed by law. For these reasons, I

respectfully dissent.

HURWITZ, Circuit Judge, with whom RAWLINSON, M.

SMITH, and CHRISTEN, Circuit Judges, join, and with

whom BYBEE, Circuit Judge, joins as to Parts I and II,

dissenting in part and concurring in part:

The majority opinion has something of a seductive

quality. It pits Peralta, a jailhouse lawyer, against Dr.

Brooks, an overworked dentist. The case involves dental

care, an amenity not available to large portions of the law-

abiding population. Given the majority’s characterization of

the dramatis personae and the issue, it is not difficult to

predict the result.

But, of course, this case is really not about just Peralta

and Dr. Brooks. Nor is it about an alleged constitutional right

to dental care.1 Rather, this case is before the en banc court

because it involves, in the words of Federal Rule of Appellate

Procedure 35(a)(2), a “question of exceptional importance.”

That question is whether a state can shield itself from the

consequences of denying constitutionally required medical

1

The majority suggests that Peralta sued because his teeth were not

cleaned. Maj. Op. at 5–6, 14. Judge Christen’s dissent rightly dismisses

this suggestion. Christen Diss. at 21–22. Given that there is no clearly

established right to teeth cleaning, the opinion could have dismissed such

a claim on qualified immunity grounds.

PERALTA V. DILLARD 37

treatment to those it incarcerates by deliberately choosing not

to appropriate sufficient funds for that treatment.

The majority effectively holds that a state can first choose

to underfund the medical treatment of its wards, and then

excuse the Eighth Amendment violations caused by the

underfunding. Today’s decision thus not only forecloses

relief to inmates who suffer cruel and unusual punishment,

but also encourages future constitutional violations. I

respectfully dissent.

I

Peralta asserted Eighth Amendment claims against three

defendants—Dr. Brooks (the treating dentist), Dr. Dillard (the

Chief Dental Officer), and Dr. Fitter (the Chief Medical

Officer). Because only the claim against Dr. Brooks went to

the jury, the instruction to consider the financial resources

made available to the prison system by the State of California

applies to that claim alone. But, the history of the claims

against the other two defendants is nonetheless instructive.

The district court determined that Dr. Fitter had qualified

immunity, and directed a judgment in his favor; the court did

not reach the issue of qualified immunity as to Dr. Dillard,

finding that Peralta had not established a prima facie case of

deliberate indifference and also issuing a judgment as a

matter of law on his behalf. Dr. Brooks, however, did not

assert qualified immunity. Thus, the “resources” jury

instruction only comes into play in cases in which qualified

immunity has not been granted and in which the district court

finds sufficient evidence of an Eighth Amendment violation

to submit the claim to a jury. See Maj. Op. at 11 (“We have

no quarrel with the dissenters’ view that Peralta may have

38 PERALTA V. DILLARD

suffered an Eighth Amendment violation.”). The majority

thus holds that even if a plaintiff makes out a prima facie

Eighth Amendment violation, an agent of the state may

nonetheless justify cruel and unusual punishment by claiming

that the state itself caused the problem by withholding the

resources necessary to provide appropriate medical care.

This turns the law upside down. A state official inflicts

cruel and unusual punishment by exhibiting deliberate

indifference to a prisoner’s serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 103–04 (1976). Deliberate indifference

in turn requires subjective culpability—the official must

know of and disregard an excessive risk to inmate health.

Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). Although

the Supreme Court has left open whether fiscal constraints are

a defense to an Eighth Amendment claim, in doing so Justice

Scalia aptly noted that “it is hard to understand how” funding

issues “could control the meaning of ‘cruel and unusual

punishments’ in the Eighth Amendment.” Wilson v. Seiter,

501 U.S. 294, 301 (1991). Four justices went even further,

criticizing the Wilson majority for even “leav[ing] open the

possibility, for example, that prison officials will be able to

defeat a § 1983 action challenging inhumane prison

conditions simply by showing that the conditions are caused

by insufficient funding from the state legislature rather than

by any deliberate indifference on the part of the prison

officials.” Id. at 311 (White, J., concurring in the judgment).

Until today, the law of this Circuit was that “budgetary

constraints . . . do not justify cruel and 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 Jones and Snow and holds that an official

does not act with deliberate indifference if he (a) lacks the

PERALTA V. DILLARD 39

“resources” to treat an inmate and (b) is sued for money

damages. Maj. Op. at 8–10. But, the Eighth Amendment

prohibits all cruel and unusual punishments, not simply those

inflicted by officials of states with well-funded prison

medical systems. More importantly, there are likely no such

states. See Andrew P. Wilper et al., The Health and Health

Care of US Prisoners: Results of a Nationwide Survey,

99 Am. J. Pub. Health 666, 669–71 (2009). Today’s opinion

therefore renders damages suits by inmates who suffer

grievous injuries as a result of constitutionally forbidden

indifference all but impossible in practice. In every case in

which state actors are sued for failing to provide minimal

medical care—even those cases involving loss of life or

serious permanent injury—the defense will be lack of

resources, and that defense will almost surely succeed.

This will encourage further constitutional violations: If

states do not have to pay damages for depriving inmates of

the level of care required to avoid violating the Eighth

Amendment, there will be little reason to increase

appropriations for prisoner care.

A

Not to worry, the majority says. Although Dr. Brooks can

assert a lack of resources defense, that defense will not be

available to those who fail to request sufficient resources.

Maj. Op. at 10–11. But again, in reality, no such defendants

will exist. Every putative defendant will be able to honestly

plead poverty.

Wardens, medical supervisors, and staff doctors have no

control over California’s prison budget, which contains “line

items” for prison medical, mental health, and dental care.

40 PERALTA V. DILLARD

Budget Act of 2013, Assemb. B. 110, 2013 Reg. Sess.,

§ 2.00, No. 5225-002-0001 (Cal. 2013) (allocating prison

medical funding); see also id. § 32.00 (limiting departmental

expenditures to the appropriated amount); Cal. Gov’t Code

§ 13324 (prohibiting expenditures in excess of a department’s

budget). Prison officials may only spend in excess of the

Department of Corrections and Rehabilitation’s budget if so

ordered by a court-appointed receiver. Cal. Assemb. B. 110,

§ 2.00, No. 5225-002-0001; see Plata v. Schwarzenegger, No.

C01-1351 TEH, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005).

The entities that control California’s prison budget—the

receiver and the state legislature—are immune from damages

suits. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998)

(providing absolute immunity for state legislators); Mosher

v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (granting

absolute quasi-judicial immunity for receivers). And a suit

for damages against the state itself is barred by sovereign

immunity. Edelman v. Jordan, 415 U.S. 651, 676 (1974).

Thus, even accepting 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.

But injunctive relief provides no comfort to an inmate who

loses a limb because of untreated diabetes. For such

constitutional violations, “it is damages or nothing.” Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 410 (1971) (Harlan, J., concurring in the

judgment). Indeed, even for prisoners not yet injured by

constitutionally deficient conditions, history counsels

skepticism about the utility of injunctive relief. See Brown v.

Plata, 131 S. Ct. 1910, 1923–28 (2011) (documenting

PERALTA V. DILLARD 41

California’s failure, in the face of multiple remedial

injunctions, to improve prison medical care).2

More importantly, the majority’s distinction between

damages and injunctive relief finds no support in the Eighth

Amendment. Cruel and unusual punishment violates the

Eighth Amendment regardless of the inmate’s prayer for

relief. But, in the eyes of the majority, refusing to treat an

inmate because of budget constraints is cruel and unusual

when an inmate requests equitable relief, but somehow not so

when he requests monetary relief.

The majority has thus made injunctive relief the default

remedy for Eighth Amendment violations. The law is

precisely to the contrary. Rather, “[a] damages remedy

against the offending party is a vital component of any

scheme for vindicating cherished constitutional guarantees

. . . .” Owen v. City of Independence, 445 U.S. 622, 651

(1980). Moreover, Congress has warned that federal courts

should rarely issue equitable relief in prison condition cases,

Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), and

the Supreme Court has often emphasized the same, see e.g.,

Farmer, 511 U.S. at 846–47; Turner v. Safley, 482 U.S. 78,

84–85 (1987); Bell v. Wolfish, 441 U.S. 520, 562 (1979);

Procunier v. Martinez, 416 U.S. 396, 404 (1974).

2

Obtaining equitable relief before one suffers permanent injury can

require herculean efforts. A prisoner first has to exhaust administrative

remedies. 42 U.S.C. 1997e(a). Then, a typically pro se litigant must

either prevail in court or receive a favorable settlement. “Of 55,376

inmate civil rights cases that ended in 2000, 49,492 were coded as pro se.

Of these, 1411 (2.85%) were coded as having settled; 491 (0.99%) were

coded as having gone to trial; 52 (10.59% of trials) were coded as ending

in a trial victory for the plaintiff.” Margo Schlanger, Inmate Litigation,

116 Harv. L. Rev. 1555, 1610 n.158 (2003).

42 PERALTA V. DILLARD

The majority thus today runs roughshod over the general

presumption in favor of legal remedies over equitable relief.

“[I]t is axiomatic that a court should determine the adequacy

of a remedy in law before resorting to equitable relief. Under

the ordinary convention, the proper inquiry would be whether

monetary damages provided an adequate remedy, and if not,

whether equitable relief would 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

extent that Congress intended that awards under § 1983

should deter the deprivation of constitutional rights, there is

no evidence that it meant to establish a deterrent more

formidable than that inherent in the award of compensatory

damages.”); Bivens, 403 U.S. at 395 (“Historically, damages

have been regarded as the ordinary remedy for an invasion of

personal interests in liberty.”). By denying inmates an

adequate remedy at law, the majority inverts the basic

law/equity presumption.

II

In the end, the only rational justification for today’s

decision is concern for the prison medical provider. That

solicitude is valid: With shoestring budgets, prison doctors

must triage medical care. “California prison wardens and

health care managers make the difficult decision as to which

of [various class actions] they will fail to comply with

because of staff shortages and patient loads.” Plata, 131 S.

Ct. at 1927 (quoting Receiver’s Report re Overcrowding,

Plata v. Schwarzenegger, No. C01-1351-TEH). It would, of

course, be unfair to subject a doctor to personal liability

because he could not immediately treat every inmate.

PERALTA V. DILLARD 43

But this case does not deal with the imposition of liability

on a doctor who was unable to see a patient. Peralta managed

to become Dr. Brooks’ patient, and the suit attacks decisions

made by Dr. Brooks from that point forward. Peralta v.

Dillard, 704 F.3d 1124, 1133–34 (9th Cir. 2013) (Berzon, J.,

dissenting). More importantly, the majority’s focus on the

personal liability of prison physicians ignores an important

reality—the state is in every respect the real party in interest

in a damages suit.

California indemnifies employees for torts committed in

the scope of their employment.3 Cal. Gov’t Code § 825.

“Indemnification is ‘near[ly] universal’ among state and local

entities, either as a matter of official policy or practice.”

Peralta, 704 F.3d at 1136 (Berzon, J., dissenting) (quoting

Schlanger, supra, at 1676 n.391).

California not only indemnifies prison officials named as

defendants in § 1983 actions, but also pays for their legal

defense. Cal. Gov’t Code §§ 825, 995. Yet, the majority

3

Every other state in our Circuit does the same. See Ariz. Rev. Stat.

§ 41-621; Idaho Code § 6-903; Mont. Code Ann. § 2-9-305; Nev. Rev.

Stat. § 41.0349; Or. Rev. Stat. § 30.285; Wash. Rev. Code § 4.92.075.

Although Alaska does not indemnify by statute, Alaska Stat.

§ 09.50.253(f), its collective bargaining agreement holds prison doctors

harmless for torts committed in the scope of their employment. Collective

Bargaining Agreement between the State of Alaska and the Alaska

Correctional Officers Association, Art. 29, available at

http://doa.alaska.gov/dop/fileadmin/LaborRelations/pdf/contracts/ACO

ACO2012-2013.pdf. Hawaii authorizes, but does not mandate,

indemnification. Hawaii Rev. Stat. § 662-16. But it also apparently

protects prison doctors by agreement. Institutional, Health and

Correctional Workers Bargaining Unit 10 Agreement, § 63.18, available

at http://dhrd.hawaii.gov/wp-content/uploads/2012/12/BU-10-UPW-2007-

09-CBA.pdf.

44 PERALTA V. DILLARD

allows the state—while funding and directing the

defense—simultaneously to argue that it would be unfair to

impose liability because of budgeting decisions made by the

state itself. If that defense succeeds, the only financial

winner is the very entity that created the problem in the first

place.4

We should not countenance such a charade. When a state

funds its employee’s defense and indemnifies him against any

judgment, it ought not then assert that he is faultless because

the state is really to blame. The policy concern that no doctor

will work for a prison if he faces the possibility of personal

liability has already been addressed (and apparently

effectively so) by California’s promise to hold the physician

harmless. Having made the policy decision to incarcerate a

large number of wrongdoers, California should not be

allowed to avoid the Eighth Amendment consequences of that

decision by systematically underfunding medical care. At a

minimum, when a state attempts to do so, we should create an

exception to the judge-made collateral source rule and allow

the plaintiff to inform jurors that the state, not the individual

defendants, will pay any compensatory damages awarded.

See Bell v. Clackamas Cnty., 341 F.3d 858, 868 (9th Cir.

2003).

Such an approach would not, as the majority suggests,

Maj. Op. at 11, violate state sovereign immunity. States have

no obligation to indemnify their employees for damages

imposed because of constitutional violations. But, when a

4

California will not indemnify an employee who acts outside of the

scope of employment. Cal. Gov’t Code § 825. But, no such situation is

presented here; all defendants clearly acted within the scope of their

employment and were defended and indemnified by the State.

PERALTA V. DILLARD 45

state chooses to do so, the state agent should not be heard to

argue that the imposition of liability on him individually is

unfair. Section 1983 and the Constitution do not codify a

collateral source rule.

III

Today’s decision, as Judge Christen’s dissent

convincingly demonstrates, is wrong on the record of this

case. But even if that were not so, the decision sweeps far too

broadly, effectively foreclosing any liability for permanent

injuries and deaths caused by the deliberate indifference of

state funding authorities. I therefore dissent from the

affirmance of the judgment in favor of Dr. Brooks.

For the reasons set forth in Judge Christen’s dissent, I also

cannot join the majority opinion insofar as it affirms the

judgment as a matter of law in favor of Dr. Dillard

(pretermitting, as did the district court, any claim of qualified

immunity). As to Dr. Fitter, the majority correctly holds that

he was entitled to qualified immunity, as he relied on his

staff’s medical judgment, and I join its opinion on that score

alone.