John Colwell v. Robert Bannister

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN COLWELL, No. 12-15844

Plaintiff-Appellant,

D.C. No.

v. 3:10-cv-00669-

LRH-WGC

ROBERT BANNISTER and HOWARD

SKOLNIK,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

April 7, 2014—San Francisco, California

Filed August 14, 2014

Before: Barry G. Silverman, William A. Fletcher,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Silverman;

Dissent by Judge Bybee

2 COLWELL V. BANNISTER

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s summary judgment

and remanded for trial in an action brought pursuant to 42

U.S.C. § 1983 by a Nevada state prisoner who was denied

cataract surgery because of a Nevada Department of

Corrections policy under which cataract surgery is refused if

an inmate can manage to function in prison with one eye.

The panel held that blindness in one eye caused by a

cataract is a serious medical condition. The panel further

held that the blanket, categorical denial of medically

indicated surgery solely on the basis of an administrative

policy that “one eye is good enough for prison inmates” is the

paradigm of deliberate indifference.

Dissenting, Judge Bybee stated that he would hold that

the respondents were not deliberately indifferent to plaintiff’s

alleged serious medical needs because plaintiff did not meet

the difficult legal burden of showing a purposeful act or

failure to respond to a prisoner’s pain or possible medical

need and harm caused by the indifference.

*

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

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

COLWELL V. BANNISTER 3

COUNSEL

Mason Boling (argued) and Lauren Murphy (argued),

Certified Law Student Representatives, and Dustin E.

Buehler, Supervising Attorney, University of Arkansas

Federal Appellate Litigation Project, Fayetteville, Arkansas;

Michelle King and Joy Nissen, Certified Law Student

Representatives, and Gregory C. Sisk, Supervising Attorney,

University of St. Thomas School of Law Appellate Clinic,

Minneapolis, Minnesota, for Plaintiff-Appellant.

Catherine Cortez Masto, Attorney General, and Clark G.

Leslie (argued), Senior Deputy Attorney General, Office of

the Nevada Attorney General, Carson City, Nevada, for

Defendants-Appellees.

OPINION

SILVERMAN, Circuit Judge:

Plaintiff John Colwell, an inmate in the Nevada

Department of Corrections, is blind in one eye due to a

cataract. It is undisputed that his treating doctors

recommended cataract surgery and that the surgery would

restore his vision. However, the surgery was denied by

NDOC supervisory medical personnel because of the

NDOC’s “one eye policy” – cataract surgery is refused if an

inmate can manage to function in prison with one eye.

We hold today, as numerous other courts considering the

question have, that blindness in one eye caused by a cataract

is a serious medical condition. We also hold that the blanket,

categorical denial of medically indicated surgery solely on

4 COLWELL V. BANNISTER

the basis of an administrative policy that “one eye is good

enough for prison inmates” is the paradigm of deliberate

indifference. We reverse the grant of summary judgment in

favor of the prison officials and remand for trial.

BACKGROUND

Because this case was resolved at summary judgment, we

present the facts in the light most favorable to Colwell, the

non-moving party. See Snow v. McDaniel, 681 F.3d 978, 982

(9th Cir. 2012), overruled in part on other grounds by Peralta

v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).

Colwell is a 67-year-old man serving multiple criminal

sentences, including life without the possibility of parole. He

did not have eye problems when he was incarcerated in 1991,

but he subsequently developed cataracts in both eyes and

underwent cataract-removal surgery on his left eye in 2001.

By October 2001, a cataract had developed in Colwell’s right

eye that rendered him totally blind in that eye by 2002. That

cataract has never been treated and is the medical condition

at issue in this case.

According to R. Bruce Bannister, D.O., the NDOC

Medical Director, a cataract is “cloudiness (opacity) of the

lens of the eye” which “does no damage to the eye and can be

removed at any time.” Dr. Bannister, who is not an

optometrist or ophthalmologist, declared that a cataract does

not cause pain, require urgent attention, or lead to permanent

vision loss. He declared further that a delay in removing a

cataract causes no harm. The NDOC has a formal written

policy for cataract treatment, Medical Directive 106, which

states in part:

COLWELL V. BANNISTER 5

PURPOSE:

...

It is the policy of the Department that inmates

with cataracts will be evaluated on a case by

case basis, taking into consideration their

ability to function within their current living

environment.

...

PROCEDURES:

106.01 Surgical Removal of Cataracts

1. Patients with visual impairment

incompatible with the ability to perform the

required tasks of daily living in their current

living environment may be considered for

removal of a cataract.

2. All cataracts extraction requests must be

approved by the Utilization Review Panel and

the Medical Director.

At least three medical providers – Drs. Snider, Fischer

(ophthalmologist), and Fisher (optometrist) – recommended

that Colwell’s right-eye cataract be treated. Colwell first

informed the NDOC of blindness in his right eye during an

October 2001 physical with prison physician Dr. Snider. In

July 2002, Dr. Snider noted the presence of the cataract and

that Colwell “need[ed] two functioning eyes” because he

6 COLWELL V. BANNISTER

worked sewing mattresses.1 Dr. Snider referred Colwell to

Michael J. Fischer, M.D., an outside ophthalmologist. Dr.

Fischer examined Colwell in September 2002, observed that

Colwell’s “visual acuity was correctable to 20/20 in the left

eye,” found “a mature cataract in the right eye,” and

concluded that right-eye cataract surgery was indicated.

Based on Dr. Fischer’s recommendation, Dr. Snider

submitted three requests for surgery to the Utilization Review

Panel.2 The Panel denied Dr. Snider’s requests, first

indicating that Colwell was on a waiting list but then denying

the two subsequent requests without explanation. Colwell

filed several written grievances between October and

December 2003, complaining that although Dr. Fischer had

recommended surgery, Dr. Snider told him that the

“department policy is ‘one eye only’ is needed” and the

surgery would not be approved. All of Colwell’s grievances

were denied.

Colwell refused his annual physical every year from 2004

to 2008 and did not receive further vision care until

September 2009, when he requested a cataract consultation.

A prison optometrist, a different Dr. Fisher, examined

Colwell and noted that he was “having trouble working” and

that his right eye was “eligible for cataract surgery.”

1

Colwell’s medical records filed under seal remain under seal except as

to facts discussed herein.

2

The record in this case does not explain the role or composition of the

Utilization Review Panel, but we have previously explained that “[t]he

URP is composed of six NDOC physicians who are board-certified in

family medicine or other similar disciplines, and includes the NDOC

Medical Director. The URP reviews requests for significant medical

procedures by outside providers, such as surgery for an inmate.” Snow,

681 F.3d at 983.

COLWELL V. BANNISTER 7

Following up on Dr. Fisher’s findings, Dr. John Scott, an

NDOC senior physician, requested an ophthalmology

consultation. The consultation report indicates that Colwell’s

condition was not life-threatening but did “significantly

affect” his quality of life.

The next week, however, Dr. Scott discontinued the

request. His handwritten notes state:

I had originally submitted request for consult

on 10-6-09 based purely on optometrists [sic]

opinion. But pt has 20/20 vision OS [left

eye]. So can actually qualify to drive a car in

many states of . . . U.S. As well this issue has

no implications of damage to [right] eye if

cataract goes unrepaired. Therefor[e] on

further reflection I am [discontinuing] the

original request for ophthalogic consultation.

There is no indication Colwell was informed of the

discontinuation, and he filed at least one written request

inquiring about the status of the referral. He also spoke with

Dr. Gedney, another prison physician, about the issue during

an appointment on February 18, 2010. Dr. Gedney’s notes

reflect that Colwell did not meet the criteria for surgery

because he has sight out of his left eye, and she told Colwell

that he did not qualify for cataract removal due to a “one eye

only” policy.

Colwell again filed a series of grievances. He complained

that the optometrist who had examined him recommended a

cataract consult for possible surgery, but that Dr. Scott had

discontinued the consult because he has one “good” eye. His

informal grievance was denied with the following response:

8 COLWELL V. BANNISTER

Administrative Regulation 618 defines your

req u es t for cat aract s u r ge r y as

cosmetic/elective surgery. One is corrected to

20/20 vision now. This places this, the 2nd

cataract surgery[,] in a non-essential

category, despite recommendation from

Dr[.]Fisher [the prison optometrist]. I cannot

predict when this may be considered for

repair, but at this time, it is not considered for

repair by Utilization Review.

(Emphasis added.) Colwell’s first-level grievance was denied

for the same reason. Dr. Bannister personally denied his

second-level grievance on March 9, 2010, stating:

I have reviewed your written grievance and

the answers provided at the informal and first

level. I agree with these responses. In almost

cases [sic] cataract surgery is not an

emergency. You should be evaluated

periodically to determine the degree of

impairment caused by your cataract with

regard to your ability to perform the activities

required in your current living situation.

Based on the practitioner[’]s evaluation the

request can be re-considered.

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

a violation of his Eighth Amendment rights. Specifically, he

claims that the prison officials were deliberately indifferent

to his serious medical needs in refusing him surgery to restore

his vision. On the defendants’ motion for summary

judgment, the district court ruled, first, that Colwell’s

cataract-induced blindness was a serious medical need.

COLWELL V. BANNISTER 9

However, it also held that Colwell failed to establish that the

defendants were deliberately indifferent to that need. It

reasoned that Colwell had not shown that the Utilization

Review Panel’s denial or delay in approving surgery led to

further injury to his eye, and explained that “medical

providers have determined that surgery is not medically

warranted in light of Plaintiff’s overall visual acuity and

ability to adequately function.” The court also held that the

Panel’s decision to refuse surgery amounted to a difference

of opinion over the best course of treatment, and that Colwell

had not shown that the NDOC’s course of action was

“medically unacceptable” or “made in conscious disregard of

an excessive risk to his health.”

DISCUSSION

1. Legal Standards

We have jurisdiction pursuant to 28 U.S.C. § 1291, and

review de novo the district court’s grant of summary

judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004). “We must determine, viewing the evidence in the

light most favorable to the nonmoving party, whether there

are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.”

Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir.

2005).

The government has an “obligation to provide medical

care for those whom it is punishing by incarceration,” and

failure to meet that obligation can constitute an Eighth

Amendment violation cognizable under § 1983. Estelle v.

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

an Eighth Amendment claim for inadequate medical care, a

10 COLWELL V. BANNISTER

plaintiff must show “deliberate indifference” to his “serious

medical needs.” Id. at 104. This includes “both an objective

standard—that the deprivation was serious enough to

constitute cruel and unusual punishment—and a subjective

standard—deliberate indifference.” Snow, 681 F.3d at 985.

To meet the objective element of the standard, a plaintiff

must demonstrate the existence of a serious medical need.

Estelle, 429 U.S. at 104. Such a need exists if failure to treat

the injury or condition “could result in further significant

injury” or cause “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 in part on other grounds by WMX Techs.,

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

(internal quotation marks omitted). Indications that a plaintiff

has a serious medical need include “[t]he existence of an

injury that a reasonable doctor or patient would find

important and worthy of comment or treatment; the presence

of a medical condition that significantly affects an

individual’s daily activities; or the existence of chronic and

substantial pain.” McGuckin, 974 F.2d at 1059–60.

A prison official is deliberately indifferent under the

subjective element of the test only if the official “knows of

and disregards an excessive risk to inmate health and safety.”

Toguchi, 391 F.3d at 1057 (quoting Gibson v. Cnty. of

Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)) (internal

quotation mark omitted). This “requires more than ordinary

lack of due care.” Farmer v. Brennan, 511 U.S. 825, 835

(1994) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))

(internal quotation mark omitted). “[T]he 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

COLWELL V. BANNISTER 11

draw the inference.” Id. at 837. Deliberate indifference “may

appear when prison officials deny, delay or intentionally

interfere with medical treatment, or it may be shown by the

way in which prison physicians provide medical care.”

Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.

1988). “In deciding whether there has been deliberate

indifference to an inmate’s serious medical needs, we need

not defer to the judgment of prison doctors or

administrators.” Hunt v. Dental Dep’t, 865 F.2d 198, 200

(9th Cir. 1989).

2. Serious Medical Need

We agree with the district court that monocular blindness

is a serious medical need. Although blindness in one eye is

not life-threatening, it is no trifling matter either. It is not a

bump or scrape or tummy ache. Monocular blindness is the

loss of the function of an organ. Other courts have held that

similar and even less severe losses of vision are serious

medical needs. For example, in Koehl v. Dalsheim, the

Second Circuit held that an inmate who needed eyeglasses for

double vision and loss of depth perception had a serious

medical need. 85 F.3d 86, 88 (2d Cir. 1996). Although the

inmate’s condition did not “inevitably entail pain,” he alleged

he suffered injuries caused by falling or walking into objects.

Id. The court ruled these consequences “adequately meet the

test of ‘suffering’” the Supreme Court “recognized is

inconsistent with ‘contemporary standards of decency.’” Id.

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

3

Several courts have reached conclusions consistent with Koehl. See

Cobbs v. Pramstallar, 475 F. App’x 575, 580 (6th Cir. 2012)

(unpublished) (cataract causing an inmate to struggle with depth

perception and walk into objects was a serious medical need where delay

12 COLWELL V. BANNISTER

Nevada district courts addressing claims similar to

Colwell’s have found cataracts to be serious medical needs.

The district court in White v. Snider concluded that a cataract

causing complete blindness in one eye was a serious medical

need where doctors recommended cataract removal and the

plaintiff experienced headaches and had difficulty seeing in

the prison yard. No. 3:08-CV-252-RCJ(VPC), 2010 WL

331742, at *5 (D. Nev. Jan. 26, 2010). The court in Michaud

v. Bannister likewise held that a plaintiff’s “advanced

cataract” was “squarely within the ambit of ‘serious medical

needs’” where the plaintiff testified that “he had lost almost

all of his ability to see in his right eye,” and “blindness and

irreparable injury could result from his untreated cataract.”

No. 2:08-cv-01371-MMD-PAL, 2012 WL 6720602, at *5 (D.

Nev. Dec. 26, 2012). Most recently, the court in Layton v.

Bannister held that a right-eye cataract was a serious medical

need despite the plaintiff’s high visual acuity in his left eye,

because his affected eye was blind and the condition was

significant enough that an examining optometry consultant

referred him to the Utilization Review Panel for surgery. No.

3:10-CV-00443-LRH-WGC, 2012 WL 6969758, at *6 (D.

in cataract-removal surgery necessitated a riskier procedure and resulted

in complications); compare Garcia v. Nev. Bd. of Prison Comm’rs, No.

3:06-CV-0118 JCM (VPC), 2008 WL 818981, at *17 (D. Nev. Mar. 24,

2008) (“[T]here is no question that losing sight in one eye constitutes a

‘serious’ medical need.”), with Canell v. Multnomah Cnty., 141 F. Supp.

2d 1046, 1057 (D. Or. 2001) (“While severe eye injuries or legal blindness

may constitute a serious medical need, that is not the case with reading

glasses.”). In a different context, the Supreme Court has indicated that

monocular vision is likely to be a disability within the meaning of the

Americans with Disabilities Act. Albertson’s, Inc. v. Kirkingburg,

527 U.S. 555, 566–67 (1999) (explaining that “monocularity inevitably

leads to some loss of horizontal field of vision and depth perception” and

that “people with monocular vision ‘ordinarily’ will meet the Act’s

definition of disability”).

COLWELL V. BANNISTER 13

Nev. Sept. 28, 2012), report and recommendation adopted,

No. 3:10-CV-00443-LRH-WGC, 2013 WL 420427 (D. Nev.

Jan. 31, 2013).

Like the medical conditions in White, Michaud, and

Layton, Colwell’s cataract is severe. “[I]t is clear that this is

not a situation of a minor cataract with little impact on an

inmate’s vision.” Michaud, 2012 WL 6720602, at *5.

Colwell’s right eye has been blind for more than a decade,

and his condition affects his perception and renders him

unable to see if he turns to the left. Several doctors, including

an ophthalmologist and an optometrist, have found the

cataract and resulting vision loss “important and worthy of

comment or treatment.” McGuckin, 974 F.2d at 1059.

Furthermore, the evidence showed that Colwell was not

“merely blind” in one eye, but that his monocular blindness

caused him physical injury: He ran his hand through a sewing

machine on two occasions while working in the prison

mattress factory; he ran into a concrete block, splitting open

his forehead; he regularly hits his head on the upper bunk of

his cell; and he bumps into other inmates who are not good-

natured about such encounters, triggering fights on two

occasions.

To reiterate, we agree with the district court that

Colwell’s total blindness in one eye is a serious medical need.

3. Deliberate Indifference

We now turn to the second prong of the inquiry, whether

the defendants were deliberately indifferent. This is not a

case in which there is a difference of medical opinion about

which treatment is best for a particular patient. Nor is this a

14 COLWELL V. BANNISTER

case of ordinary medical mistake or negligence. Rather, the

evidence is undisputed that Colwell was denied treatment for

his monocular blindness solely because of an administrative

policy, even in the face of medical recommendations to the

contrary. A reasonable jury could find that Colwell was

denied surgery, not because it wasn’t medically indicated, not

because his condition was misdiagnosed, not because the

surgery wouldn’t have helped him, but because the policy of

the NDOC is to require an inmate to endure reversible

blindness in one eye if he can still see out of the other. This

is the very definition of deliberate indifference.

The district court held that Colwell did not show the

NDOC’s decision to delay or deny treatment caused him

harm. This ignores the plain fact that as long as the eye

remains untreated, Colwell continues to suffer blindness in

his right eye, which is harm in and of itself, along with all of

the other harms and dangers that flow from that. The record

is sufficient to create a triable issue of fact regarding whether

Colwell has been harmed by the refusal of treatment. See

Michaud, 2012 WL 6720602, at *8–9 (plaintiff showed harm

from delay of cataract surgery where his impairment resulted

in fights with other inmates, causing “missing teeth and black

eyes”). Contra Layton, 2012 WL 6969758, at *9

(disregarding collateral injury and holding that the visual

acuity in plaintiff’s good eye was the best measure of further

injury since his cataract-affected eye was already totally

blind).

In the district court’s view, this is case about a difference

of opinion over whether treatment is medically warranted.

We disagree. “A difference of opinion between a physician

and the prisoner—or between medical professionals—

concerning what medical care is appropriate does not amount

COLWELL V. BANNISTER 15

to deliberate indifference.” Snow, 681 F.3d at 987. Rather,

“[t]o show deliberate indifference, the plaintiff ‘must show

that the course of treatment the doctors chose was medically

unacceptable under the circumstances’ and that the

defendants ‘chose this course in conscious disregard of an

excessive risk to plaintiff’s health.’” Id. at 988 (quoting

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).

In Snow v. McDaniel, which was decided shortly after the

district court issued its decision in this case, an NDOC death

row inmate brought an Eighth Amendment claim after the

Utilization Review Panel repeatedly refused to authorize hip

replacement surgery recommended by outside specialists and

a treating physician. 681 F.3d at 983–84. The Panel denied

surgery for approximately two years, concluding that the

condition could be treated with pain medication even though

it was an “emergency” and “potentially life threatening.” Id.

The Snow court held that “the circumstances . . . raise[d] an

inference that the defendants were unreasonably relying on

their own non-specialized conclusions” instead of the

recommendations of the plaintiff’s treating specialists. Id. at

986. Therefore, “a reasonable jury could conclude that the

decision of the non-treating, non-specialist physicians to

repeatedly deny the recommendations for surgery was

medically unacceptable under all of the circumstances.” Id.

at 988; see also Hamilton v. Endell, 981 F.2d 1062, 1067 (9th

Cir. 1992) (“By choosing to rely upon a medical opinion

which a reasonable person would likely determine to be

inferior, the prison officials took actions which may have

amounted to the denial of medical treatment, and the

‘unnecessary and wanton infliction of pain.’”), overruled in

part on other grounds as recognized in Snow, 681 F.3d at

986.

16 COLWELL V. BANNISTER

The record in this case indicates that the NDOC similarly

ignored the recommendations of treating specialists and

instead relied on the opinions of non-specialist and non-

treating medical officials who made decisions based on an

administrative policy. Colwell was seen by eye specialists on

at least two occasions, first by ophthalmologist Dr. Fischer in

2002 and then by a prison optometrist in 2009. Both

specialists recommended cataract surgery after personally

examining the cataract, yet the NDOC disregarded these

recommendations.

The record supports a conclusion that the specialists’

recommendations for surgery were overridden not because of

conflicting medical opinions about the proper course of

treatment, but because officials enforced the “one eye only”

policy. The NDOC’s formal cataract-treatment policy,

Medical Directive 106, mandates “case by case”

consideration of cataract treatment requests taking into

account an inmate’s “ability to function,” but the evidence

here shows that the NDOC denies cataract surgery as long as

a prisoner has one “good” eye. Colwell was told on multiple

occasions that he would not receive treatment because he had

a healthy left eye, which made surgery unnecessary despite

the examining specialists’ opinions.

Facing similar facts, Nevada district courts have refused

to grant summary judgment in favor of prison officials. In

Michaud, the district court held that there was a genuine issue

of fact whether the Utilization Review Panel was deliberately

indifferent when it knew that the prisoner faced permanent

blindness but denied the recommendation for cataract surgery

and instead ordered an eye patch and headache pills. 2012

WL 6720602, at *7. The court explained that the facts

indicated that every physician who reviewed the inmate’s

COLWELL V. BANNISTER 17

vision concluded surgery was necessary, and that “the only

difference of opinion existed between these physicians and

the URP.” Id. at *8.

Similarly, the White court held that there were triable

issues of fact where there was a difference of opinion

between “the optometric specialists at the eye clinic who

recommended cataract removal and the defendants who claim

the procedure is not necessary.” 2010 WL 331742, at *5.

The court reasoned that “a factual issue remain[ed] as to

whether defendants surrendered professional judgment and

dismissed complaints based on the mere categorization of

cataract removal as ‘not medically necessary.’” Id. at *6.4

The defendants ask us to disregard these cases and instead

rely on Cobbs, an unpublished Sixth Circuit decision in which

the court held that the Michigan Department of Correction’s

Chief Medical Officer was not deliberately indifferent when

his Medical Committee denied a request for cataract surgery

and refused a subsequent request for an ophthalmology

consultation, despite specialist recommendations. 475 F.

App’x at 581–84. Our case is distinguishable from this non-

precedential, 2-to-1 Sixth Circuit case in at least one very

important respect. Cobbs actually received the cataract

4

The defendants want us to follow Layton, in which a Nevada district

court found that there was no deliberate indifference based on facts and

allegations very similar to those in the case. See 2012 WL 6969758, at

*11. The report and recommendation in Layton relies in part on the

district court’s earlier grant of summary judgment in the instant case, see

id. at *10, and the report and recommendations in both cases were

prepared by the same magistrate judge. We find Layton’s deliberate

indifference analysis unpersuasive for many of the same reasons detailed

in this opinion, but we agree with its conclusion that a cataract can amount

to a serious medical need. See id. at *6.

18 COLWELL V. BANNISTER

surgery he needed after he filed his lawsuit. Id. at 579. He

continued his suit afterward to recover damages for the delay

in treatment. Id. at 576. Colwell, on the other hand, has been

and continues to be denied the surgery that three different

doctors say he currently needs. In any event, to whatever

extent Cobbs can be read to condone the refusal to treat

treatable cataracts solely because the inmate can still see out

of one eye, we reject that view, as did Sixth Circuit Judge

Cole. Id. at 584–85 (Cole, J., dissenting).

A reasonable jury could find that NDOC officials denied

treatment because Colwell’s medical need conflicted with a

prison policy, not because non-treatment was a medically

acceptable option. See Hamilton, 981 F.2d at 1066 (holding

that summary judgment was inappropriate “where prison

officials and doctors deliberately ignored the express orders

of a prisoner’s prior physician for reasons unrelated to the

medical needs of the prisoner”).

4. Personal Participation

The defendants urge us to uphold summary judgment

because, they argue, neither Dr. Bannister nor former and

now-retired NDOC Director Howard Skolnik was personally

involved in any constitutional deprivation. See Jones v.

Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a

person acting under color of state law to be liable under

section 1983 there must be a showing of personal

participation in the alleged rights deprivation . . . .”). The

defendants never argued before the district court that Dr.

Bannister lacked personal involvement, and the district court

did not reach their arguments concerning Director Skolnik.

COLWELL V. BANNISTER 19

Although many of the events in this case occurred before

Dr. Bannister became NDOC Medical Director in 2005, he

personally denied Colwell’s second-level grievance even

though he was aware that an optometrist had recommended

surgery and that Colwell’s lower-level grievances had been

denied despite that recommendation. Accordingly, a

reasonable jury could find that Dr. Bannister, pursuant to a

policy rather than a considered medical judgment, contributed

to the decision to refuse treatment in conscious disregard of

an excessive risk to Colwell’s health. See Snow, 681 F.3d at

989–90.

There are no facts indicating Director Skolnik was

personally involved in Colwell’s medical care, but the current

NDOC Director is still a proper defendant in Colwell’s claim

for injunctive relief “because he would be responsible for

ensuring that injunctive relief was carried out, even if he was

not personally involved in the decision giving rise to [the

plaintiff’s] claims.” Pouncil v. Tilton, 704 F.3d 568, 576 (9th

Cir. 2012). We have held that a corrections department

secretary and prison warden were proper defendants in a

§ 1983 case because “[a] plaintiff seeking injunctive relief

against the State is not required to allege a named official’s

personal involvement in the acts or omissions constituting the

alleged constitutional violation. Rather, a plaintiff need only

identify the law or policy challenged as a constitutional

violation and name the official within the entity who can

appropriately respond to injunctive relief.” Hartmann v. Cal.

Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)

(citations omitted). Colwell contends that the NDOC

Director would be responsible for implementing any

injunctive relief and the defendants do not disagree.

20 COLWELL V. BANNISTER

CONCLUSION

We therefore REVERSE the district court’s grant of

summary judgment in favor of the defendants and REMAND

for further proceedings consistent with this opinion.5

BYBEE, Circuit Judge, dissenting:

Since 2002, John Colwell has been blind in his right eye

as a result of a cataract. Prison doctors recommended that his

condition be corrected by surgery, a request the Nevada

Department of Corrections (“NDOC”) denied in 2003. For

the next five years, from 2004 to 2009, Colwell refused

additional medical treatment by failing to show up for his

annual physical. Not until 2010 did Colwell file grievances

over the State’s refusal to provide him with cataract surgery.

Colwell is one of the 20.5 million Americans over the age

of 40 who suffer from cataracts.1 Like many others who have

5

We express no opinion regarding whether the defendants are entitled

to qualified immunity on Colwell’s claim for damages, leaving the district

court to address that issue in the first instance. See Richardson v. Runnels,

594 F.3d 666, 672 (9th Cir. 2010) (“Here, we do not reach qualified

immunity because the issue has never been addressed by the district

court.”); Schneider v. Cnty. of San Diego, 28 F.3d 89, 93 (9th Cir. 1994)

(“The district court granted summary judgment without reaching the

immunity issues. These issues should be addressed in the first instance by

the district court.”).

1

Centers for Disease Control and Prevention, Common Eye

Disorders, (Apr. 23, 2013) www.cdc.gov/visionhealth/basic_information/

eye_disorders.htm.

COLWELL V. BANNISTER 21

cataracts, he is in no pain and in no danger of suffering

permanent loss of vision. In the nine years after he developed

the cataract, Colwell worked in prison industries sewing

mattresses, doing yard work, training dogs, and serving in the

culinary unit. He routinely participates in religious activities,

plays cards, attends a computer class, exercises, and watches

television; he is also a “voracious reader.” His only

complaint relative to the blindness in his right eye is that,

since he developed the cataract in 2002, he ran his hand

through a sewing machine (twice), gashed his head on a

concrete block, bonks his head on the upper bunk, and

occasionally bumps into other inmates.

If I were the warden, and if I had the resources at my

disposal, I would make sure that Colwell got his elective

surgery. But that is not the question before us. The question

is whether the State’s refusal to obtain surgery for Colwell’s

eye constitutes “cruel and unusual punishment” in violation

of the Eighth Amendment. The majority answers with a

resounding “yes,” but I fear that the answer is not as facile as

the majority makes it out to be. It turns out that we, district

courts in our circuit, and courts around the United States have

struggled with this question. And with good reason. We

have a growing—and, more importantly, an aging—prison

population, and we are going to face these kinds of problems

more and more frequently. The big question for us as courts

is the extent to which the Eighth Amendment dictates the

answers to these problems.

In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme

Court applied the Eighth Amendment’s prohibition against

“cruel and unusual punishments” to “the government’s

obligation to provide medical care for those whom it is

punishing by incarceration.” Id. at 103. Although “not . . .

22 COLWELL V. BANNISTER

every claim by a prisoner that he has not received adequate

medical treatment states a violation of the Eighth

Amendment,” the Constitution proscribes “‘unnecessary and

wanton infliction of pain’” through “deliberate indifference

to serious medical needs of prisoners.” Id. at 104–05

(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

Judged by this standard, NDOC has not violated the Eighth

Amendment, because Colwell is not suffering any pain from

his cataract and he is fully functioning in the ordinary tasks

of prison life. His mishaps are not unexpected given the

vicissitudes of life, the aging process, and his incarceration.

Our court has construed the “serious medical needs”

standard in Estelle to go well beyond medical conditions that

cause pain. In McGuckin v. Smith, we held that a “serious

medical need” encompassed any “injury that reasonable

doctor or patient would find important and worthy of

comment or treatment.” 974 F.2d 1050, 1059–60 (9th Cir.

1992), overruled on other grounds by WMX Techs., Inc. v.

Miller, 104 F.3d 1133 (9th Cir. 1997). Relying on this

standard—a standard better suited for counseling doctors how

to avoid malpractice claims—the majority has little difficulty

concluding that the State has violated the Eighth Amendment.

Maj. Op. at 9–10, 13. But McGuckin cannot be a correct

reading of the Court’s Eighth Amendment cases, and unless

we overturn it en banc, we will make ourselves the authors of

a “National Code of Prison Regulation,” Hudson v.

McMillian, 503 U.S. 1, 28 (1992) (Thomas, J., dissenting),

the ombudsmen for the circuit’s prisons, and the arbiters of

acceptable medical standards. These problems, however, are

much too complicated to be addressed through the blunt force

of the Eighth Amendment.

I respectfully dissent.

COLWELL V. BANNISTER 23

I

A

The Supreme Court first addressed the Eighth

Amendment in Wilkerson v. Utah, 99 U.S. 130 (1878), a

challenge to the Utah Territory’s plan to execute Wilkerson

by firing squad.2 The Court held that capital punishment did

not violate the Eighth Amendment, but observed that drawing

and quartering, public dissection, burning alive,

disembowelment, and all other punishments “in the same line

of unnecessary cruelty,” are forbidden by the Constitution.

Id. at 135–37. Later Court decisions described cruel and

unusual punishments as those that “involve torture or a

lingering death,” Weems v. United States, 217 U.S. 349, 370

(1910), or the “wanton infliction of pain.” Gregg, 428 U.S. at

173 (discussing Furman v. Georgia, 408 U.S. 238, 392–93

(1972) (Burger, C.J., dissenting)); see also Baze v. Rees,

553 U.S. 35, 48–49 (2008) (plurality opinion); In re

Kemmler, 136 U.S. 436 (1890).

Over the course of these early cases, the Court shifted

from a focus on historically prohibited punishments to a

broader recognition that the Eighth Amendment is not a

“static concept.” Gregg, 428 U.S. at 173. Although this shift

expanded the breadth of the Eighth Amendment, the Court

cautioned that “the requirements of the Eighth Amendment

must be applied with an awareness of the limited role to be

2

The Supreme Court did not even mention the Eighth Amendment until

the middle of the Nineteenth Century. See Pervear v. Massachusetts,

72 U.S. 475, 479–80 (1866) (acknowledging Pervear’s Eighth

Amendment argument, but declining to address the issue because the

Eighth Amendment did not apply to the states).

24 COLWELL V. BANNISTER

played by the courts.” Id. at 174. After all, “[c]ourts are not

representative bodies,” id. at 176 (internal quotation marks

omitted), and “[a] decision that a given punishment is

impermissible under the Eighth Amendment cannot be

reversed short of a constitutional amendment.” Id. at 175.

Cognizant of these warnings, the Court nevertheless

expanded the reach of the Eighth Amendment beyond

punishments themselves, and into conditions of

imprisonment, beginning with inmate health care.

The government’s obligation to provide inmates with

medical care follows from Gregg’s holding that the Eighth

Amendment prohibits the “wanton infliction of pain.” Id. at

173. During the same Term it decided Gregg, the Court in

Estelle considered for the first time whether the Eighth

Amendment applied to prison conditions. 429 U.S. 97. The

Court held that the government has an obligation to provide

medical care for incarcerated people because failure to do so

“may actually produce physical ‘torture or a lingering

death,’” or “pain and suffering” without “any penological

purpose.” Id. at 103 (quoting Kemmler, 136 U.S. at 447, and

discussing Gregg, 428 U.S. at 173). Cautioning that “every

claim by a prisoner that he has not received adequate medical

treatment [does not] state[ ] a violation of the Eighth

Amendment,” the Court held that the Eighth Amendment

prohibits “deliberate indifference to serious medical needs of

prisoners.” Id. at 105.

Since then, the Court has repeated that “‘deliberate

indifference to serious medical needs of prisoners’ violates

the [Eighth] Amendment because it constitutes the

unnecessary and wanton infliction of pain contrary to

contemporary standards of decency.” Helling v. McKinney,

509 U.S. 25, 32 (1993) (quoting Estelle, 429 U.S. at 104).

COLWELL V. BANNISTER 25

Thus, “only the unnecessary and wanton infliction of pain

implicates the Eighth Amendment.” Wilson v. Seiter,

501 U.S. 294, 297 (1991) (internal quotation marks omitted);

see also Hope v. Pelzer, 536 U.S. 730, 737–38 (2002);

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson,

503 U.S. at 5 (referring to “the settled rule that the

unnecessary and wanton infliction of pain . . . constitutes

cruel and unusual punishment forbidden by the Eighth

Amendment.” (omission in original) (internal quotation

marks omitted)); Whitley v. Albers, 475 U.S. 312, 320 (1986)

(“After incarceration, only the unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual

punishment forbidden by the Eighth Amendment” (omission

in original) (internal quotation marks omitted)). In Rhodes v.

Chapman, 452 U.S. 337 (1981), the Court considered whether

“conditions of confinement”—in that case, double

celling—were cruel and unusual punishment. The Court

again emphasized that the wanton and unnecessary infliction

of pain was the touchstone of the Eighth Amendment:

The double celling made necessary by the

unanticipated increase in prison population

did not lead to deprivations of essential food,

medical care, or sanitation. Nor did it

increase violence among inmates or create

other conditions intolerable for prison

confinement. Although job and education

opportunities diminished marginally as a

result of double celling, limited work hours

and delay before receiving education do not

inflict pain, much less unnecessary and

wanton pain; deprivations of this kind simply

are not punishments. We would have to

wrench the Eighth Amendment from its

26 COLWELL V. BANNISTER

language and history to hold that delay of

these desirable aids to rehabilitation violates

the Constitution.

Id. at 348 (internal citation omitted) (emphasis added). The

Court concluded that the complaints “f[e]ll far short in

themselves of proving cruel and unusual punishment, for

there is no evidence that double celling under these

circumstances either inflicts unnecessary or wanton pain or is

grossly disproportionate to the severity of crimes warranting

imprisonment. . . . [T]he Constitution does not mandate

comfortable prisons,” or that prisoners “be free of

discomfort.” Id. at 348–49.

B

Our own foray into the Eighth Amendment has departed

significantly from the Court’s formulation. Initially, we

followed Estelle and held that prisoners “can establish an

eighth amendment violation with respect to medical care if

they can prove there has been deliberate indifference to their

serious medical needs” such that it caused “unnecessary and

wanton infliction of pain.” Hunt v. Dental Dep’t., 865 F.2d

198, 200–01 (9th Cir. 1989) (internal quotation marks and

citation omitted); see also Vaughn v. Ricketts, 859 F.2d 736,

741 (9th Cir. 1988); Anthony v. Dowdle, 853 F.2d 741,

742–43 (9th Cir. 1988); Wood v. Sunn, 852 F.2d 1205, 1210

(9th Cir. 1988); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

1980). In 1992, however, we grafted a different formulation

on the Supreme Court’s holding in Estelle. McGuckin, was

a case involving a prisoner who endured “a significant

amount of pain and anguish” caused by a hernia because

prison officials failed to diagnose his condition. 974 F.2d at

1061–62. There, as in Hunt, we correctly observed that the

COLWELL V. BANNISTER 27

“‘[u]nnecessary and wanton infliction of pain’ upon

incarcerated individuals under color of law constitutes a

violation of the Eighth Amendment.” Id. at 1059 (quoting

Hudson, 503 U.S. at 5) (alteration in original). We explained

that “a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical

needs” in order to state a cognizable Eight Amendment claim,

and that “[a] ‘serious’ medical need exists if the failure to

treat a prisoner’s condition could result in further significant

injury or the ‘unnecessary and wanton infliction of pain.’” Id.

(quoting Estelle, 429 U.S. at 104). We then expanded upon

Estelle as follows:

The existence of an injury that a reasonable

doctor or patient would find important and

worthy of comment or treatment; the presence

of a medical condition that significantly

affects an individual’s daily activities; or the

existence of chronic and substantial pain are

examples of indications that a prisoner has a

“serious” need for medical treatment.

Id. at 1059–60 (emphasis added).

We have since relied on McGuckin’s “worthy of

comment” standard, but have done so in just two published

cases,3 and it is not clear that either case depended on such a

3

It appears in a dozen or so of our unpublished opinions. See, e.g.,

Padilla v. Crawford, 288 Fed. App’x. 389, 391 (9th Cir. 2008). Many

district courts within our circuit have cited to McGuckin as well. At least

four circuits have cited McGuckin’s comment-worthiness standard,

although it is unclear whether those circuits require proof of pain as well.

See, e.g., Blackmore v. Kalamazoo Cnty, 390 F.3d 890, 897 (6th Cir.

2004) (“Most other circuits hold that a medical need is objectively serious

28 COLWELL V. BANNISTER

broad rephrasing of the Supreme Court’s standard. See

Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)

(citing McGuckin for the proposition that a hernia is “‘an

injury that reasonable doctor or patient would find important

and worthy of comment or treatment,’” 974 F.2d at 1059–60;

but also citing Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.

1986) (“He alleges suffering and pain from his herniated

condition . . . .”)); see also Lopez v. Smith, 203 F.3d 1122,

1131–32 (9th Cir. 2000) (en banc) (concluding that post-

operative care for jaw that was broken and wired shut was

“the kind of injury a doctor would find noteworthy” and was

“likely painful”). But more frequently, we have resorted to

the standard statement that “the plaintiff must show a serious

medical need by demonstrating that failure to treat a

prisoner’s condition could result in further significant injury

or the unnecessary and wanton infliction of pain.” Jett v.

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal

quotation marks omitted); see also Snow v. McDaniel,

681 F.3d 978, 985 (9th Cir. 2012) (“To meet the objective

standard, the denial of a plaintiff’s serious medical need must

result in the ‘unnecessary and wanton infliction of pain.’”

(quoting Estelle, 429 U.S. at 104)), overruled on other

grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir.

2014) (en banc); Hallett v. Morgan, 296 F.3d 732, 744–45

(9th Cir. 2002); Wakefield v. Thompson, 177 F.3d 1160,

1164–65 (9th Cir. 1999). Most recently, we stated that “[a]

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

if it is one that has been diagnosed by a physician . . . or one that is so

obvious that even a lay person would easily recognize the necessity for a

doctor’s attention.”) (internal quotation marks omitted); Chance v.

Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (describing comment-

worthiness as a “highly relevant” consideration); Gutierrez v. Peters,

111 F.3d 1364, 1374 (7th Cir. 1997) (describing McGuckin as “sensible”);

Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).

COLWELL V. BANNISTER 29

‘significant injury or the unnecessary and wanton infliction of

pain.’” Peralta, 744 F.3d at 1081(quoting Jett, 439 F.3d at

1096).

The majority relies on the “worthy of comment”

statement from McGuckin.4 The majority first recites our

statement from McGuckin, Maj. Op. at 10, and then applies

it: “Several doctors, including an ophthalmologist and an

optometrist, have found the cataract and resulting vision loss

‘important and worthy of comment or treatment.’” Maj. Op.

at 13 (quoting McGuckin, 974 F.2d at 1059). From this, and

the anecdotal evidence that he has injured himself because of

his monocular blindness, the majority concludes that

“Colwell’s total blindness in one eye is a serious medical

need.” Maj. Op. at 13. The majority makes no claim that

Colwell suffers from any pain attributable to his medical

condition.

Our assertion in McGuckin, 974 F.2d at 1059, relied on by

the majority here, that “an injury that a reasonable doctor or

patient would find important and worthy of comment or

treatment” is a “serious medical need” covered by the Eighth

Amendment has no provenance in any case that I can find.

And the comment-worthiness standard is untethered from the

Supreme Court’s insistence that the Cruel and Unusual

Punishments Clause has at its core the infliction of

“unnecessary and wanton pain.” Moreover, so far as I can

determine, this is the first time we have a case in which the

comment-worthiness standard really matters.

4

The majority does not, and could not, rely on the other examples of

serious medical needs cited in McGuckin: a medical condition that

“significantly affects” an inmate’s daily activities or “chronic and

substantial pain.” McGuckin, 974 F.2d at 1060.

30 COLWELL V. BANNISTER

We have adopted the wrong standard. In the end,

McGuckin’s comment-worthiness standard does not follow

from the Supreme Court’s jurisprudence. The touchstone for

Eighth Amendment violations has always depended on some

showing that the punishment, the conduct of prison and

medical officials, or the conditions of confinement have

resulted in the “the unnecessary and wanton infliction of

pain.” See Wilson, 501 U.S. at 297 (internal quotation marks

and emphasis omitted) (emphasis added); Hudson, 503 U.S.

at 5; Whitley, 475 U.S. at 320; Rhodes, 452 U.S. at 348;

Estelle, 429 U.S. at 104; see also Estelle, 429 U.S. at 106

(“Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner.”).

Making the Eighth Amendment turn on a doctor’s notes

does not approach this touchstone. Doctors may comment on

patient’s conditions for many reasons unrelated to pain.

Doctors have an obligation to diagnose symptoms of physical

and mental illnesses. Sometimes the body sends imperfect or

mixed signals. Doctors will frequently tell us that a condition

“bears watching.” Sometimes we go to doctors for matters

that are inconvenient or cosmetic. Sometimes we will have

complaints—real or imagined—that the doctor cannot verify.

Our complaints may be medically noteworthy even if they

fall well short of threatening our lives or causing us

temporary or persistent pain.

Our McGuckin comment-worthiness standard is all the

more troubling because it does not even depend on a doctor

thinking the matter is worthy of comment. Under McGuckin,

it is sufficient if the “patient would find [the injury] important

and worthy of comment or treatment.” McGuckin, 974 F.2d

at 1059 (emphasis added). After McGuckin, a patient may

self-report an Eighth Amendment violation based on his own

COLWELL V. BANNISTER 31

perception of what is “important and worthy of comment or

treatment.” No medical diagnosis is required.

II

It is understandable that the majority bases much of its

serious medical need analysis on McGuckin’s comment-

worthiness standard because Colwell’s cataract does not

cause the “wanton infliction of pain.” Gregg, 428 U.S. at

173. But I cannot agree with the majority that Colwell has

endured “cruel and unusual punishment” simply because the

doctors commented on his cataract and recommended that it

be corrected surgically. Given the importance of medical

records, it would be surprising if the medical professionals

had failed to document his cataract or monocular blindness.

Although Colwell’s doctors noted his cataract, no one

documented that the cataract caused Colwell any pain or

discomfort. Nor did anyone suggest that Colwell was

significantly limited in his life’s activities. Nor does the

record support such a conclusion. In his deposition, Colwell

does not complain of any pain or discomfort from his

cataract. The State’s doctors confirmed that cataracts do not

generally cause pain. Dr. Scott wrote that “[a] cataract does

not cause pain. Plaintiff did not complain of any pain due to

his cataract.” Dr. Bannister confirmed that “[a] cataract does

not cause pain.” Nor does the cataract pose any direct threat

to Colwell’s physical well-being. Dr. Bannister’s declaration

states “a cataract is not a condition that constitutes a medical

emergency, nor does a cataract require urgent medical

attention. . . . A cataract does not lead to permanent vision

loss.” Dr. Scott stated that Colwell “had documented normal

vis[ion] in his left eye. Non-intervention to the right eye

cataract presented no further health risks to the Plaintiff.” He

32 COLWELL V. BANNISTER

further observed that “[w]hile any cataract can be removed

surgically, the removal of a cataract is not medically

necessary in many cases because the cataract does not

structurally damage the eye.”

Even though Colwell is not in any physical pain, the

untreated cataract and his resulting blindness may create a

condition of his confinement that causes unnecessary pain

and suffering. The majority so concludes:

[T]he evidence showed that Colwell was not

“merely blind” in one eye, but that his

monocular blindness caused him physical

injury: He ran his hand through a sewing

machine on two occasions while working in

the prison mattress factory; he ran into a

concrete block, splitting open his forehead; he

regularly hits his head on the upper bunk of

his cell; and he bumps into other inmates who

are not good-natured about such encounters,

triggering fights on two occasions.

Maj. Op. at 13.

None of these incidents withstands scrutiny. Let’s start

with the sewing machine incidents. The evidence that

Colwell ran his hand through a sewing machine comes from

a 2003 medical consultation report.5 It reads: “P[atient] has

run his hand through sewing machine twice this past 10

months.” Colwell sewed mattresses in a prison workshop

5

As the majority states, Colwell’s medical records filed under seal

remain under seal except as to facts discussed herein, in the majority’s

opinion, or in the parties’ briefs. Maj. Op. at 6 n.1.

COLWELL V. BANNISTER 33

from 2000 to 2009, except for 2004. At no time in his

deposition (or in his complaint) did Colwell mention running

his hands through a sewing machine. In his deposition,

Colwell generally complained that he “was having trouble

with [his] sewing ability,” and could not continue “working

in a mattress factory where [he was] required to do very fine

work.” When the mattress operation was moved to another

correctional facility, Colwell decided to quit and leave that

facility. “Well, my work was being adversely affected, on

top of I didn’t like it there. So I exercised my right to be

transferred.” If there was a problem in 2003, it was not of

sufficient concern to Colwell to seek medical attention.

Colwell refused his annual medical examinations for the next

five years, from 2004 to 2008, because he “[didn’t] like the

medical department in general.” There is nothing in

Colwell’s allegations or deposition that would connect these

incidents to his cataract.

The evidence of Colwell “splitting open his forehead”

does not tell us much either. Colwell testified that in 2011 he

was bending over and “split [his] eye open, [his] left

eyebrow, on a cement block.” Of course, as he

acknowledged, the left side was “on the side that [he could]

see,” but he thought “something [wa]s out of whack.” He

reported the incident to an officer, who told him to report to

the medical unit. Colwell thought the medical unit was going

to charge him for the visit, so he refused. By the time he got

to the medical unit, within ten minutes of the incident, he was

not bleeding:

Q: Did you require any stitches?

A: No.

34 COLWELL V. BANNISTER

Q: Did you get a Band-Aid?

A: No.

The majority also relies on the fact that Colwell regularly

hits his head on the upper bunk. Colwell, by the way, is 6'6"

and weighs 270 lbs. And as Colwell recognizes, he has “a

lower bunk and the upper bunk is probably four and a half

feet high.” There are “always scratches and breaks on the

back of [his] head,” but he has never required treatment for

bumping his head. This is unfortunate, but ask any taller-

than-average person who has had to sit on a bus or an airplane

or cram into desks or beds that are too short and they will

testify that these are the natural consequences of being tall.

Additionally, Colwell himself candidly recognized that it

might be a consequence of getting older: “I don’t know how

much of it is just being senile and old, you know, but it

happens.”

Finally, the majority points to the claim that Colwell

bumps into other inmates and that this has resulted in at least

two fights. Here is what Colwell said: “I have had two

fistfights and numerous occasions where I have had to

apologize.” However, Colwell has no disciplinary history of

fighting. As Colwell explains, “[they]’re in very crowded

spaces. There’s a limited amount of area that [they] can

walk, that [they] can live.” One of the incidents was in 2007

or 2008, and Colwell and his antagonist each threw a punch

and then engaged in some shoving. Neither suffered any

injuries, and the incident was not reported. The second

incident occurred in 2009. Colwell walked into another

prisoner on his right side. The man later confronted Colwell

and, because Colwell was bigger and stronger, he just “took

care of it,” later apologizing to the man. Again, there were no

COLWELL V. BANNISTER 35

injuries and no reports filed. Aside from these two fights,

Colwell testified that he “probably run[s] into somebody two

or three times a month, and probably one in five or one in six

requires an explanation.” He attributes these run-ins to his

cataract because they always occur on his right side. By

Colwell’s own estimate, he has to apologize to someone he

runs into about once every other month. Given the confined

space in which prisons operate and Colwell’s physical size,

having to apologize once every two months for bumping into

to someone doesn’t seem the stuff of cruel and unusual

punishment.

In other respects, Colwell’s activities demonstrate that he

is relatively unrestricted in his life. He testified that he

meditates and participates in religious services. He plays

cards and attends a computer class. He describes himself as

“a voracious reader. [He] reads a book a day very often when

[he’s] doing well.” He says that he exercises regularly by

walking, but cannot participate in sports because he can no

longer shoot baskets, play pool, or catch a baseball.

Taken together, these incidents do not amount to the kind

of pain and suffering necessary to challenge the conditions of

his confinement under the Eighth Amendment.

III

Because Colwell does not suffer any physical pain from

his cataract and does not suffer generally from his monocular

blindness, the majority’s decision is only supportable if

monocular blindness is per se a serious medical need.

Although the majority does not say as much, that is the

undeniable take-away from its opinion, and prisons within the

circuit will refuse elective cataract surgery at their peril. See

36 COLWELL V. BANNISTER

Maj. Op. at 11 (“[M]onocular blindness is a serous medical

need.”); id. at 14 (“Colwell continues to suffer blindness in

his right eye, which is harm in and of itself, along with all of

the other harms and dangers that flow from that.”).

Let there be no question that I believe that monocular

blindness is a serious condition. And if I had monocular

blindness and the means to cure it, I would surely do so. But

if the bare fact of being blind in one eye may be considered

a disability,6 it is not crippling. There are many Americans

who have monocular vision and are perfectly functional.

They hold jobs, drive cars,7 play sports, watch movies, and

6

The majority advises that the Supreme Court considers monocular

vision to be a disability under the Americans with Disabilities Act. Maj.

Op. at 12 n.3 (citing Albertsons, Inc. v. Kirkingburg, 527 U.S. 555,

566–67 (1999)); see also EEOC v. United Parcel Serv., Inc., 424 F.3d

1060, 1064–65 (9th Cir. 2005).

The majority’s reference to the ADA is odd because the ADA serves

a very different purpose from the Eighth Amendment. The ADA is a

broad law designed “to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1). In addition to eliminating

discrimination, the ADA seeks to improve quality of life for disabled

individuals by improving accessibility. See Chapman v. Pier 1 Imps.

(U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (“[T]he ADA proscribes

more subtle forms of discrimination . . . that interfere with disabled

individuals’ full and equal enjoyment of places of public accommodation.”

(internal quotation marks omitted)). By contrast, the Eighth Amendment

is not “an aspiration toward an ideal environment for long-term

confinement.” Rhodes, 452 U.S. at 349.

7

The vast majority of states grant drivers licenses to individuals with

monocular vision. See Paul G. Steinkuller, MD, Legal Vision

Requirements for Drivers in the United States, 12 Am. Med. Ass’n J. of

Ethics 911, 938 (Dec. 2010), available at virtualmentor.ama-

assn.org/2010/12/pdf/hlaw1-1012.pdf. Furthermore, a study of individuals

COLWELL V. BANNISTER 37

move among the binocular population without us even being

aware of their condition.8

This same question, whether a cataract resulting in partial

or total blindness constitutes a serious medical condition, has

vexed the courts that have considered it. The majority cites

to several courts who have found that cataracts are a serious

medical need and that the prisons are obligated to treat it. See

Maj. Op. at 11–13 & n.3. The record is more mixed than the

majority admits. As the majority points out, a number of

courts, including district courts in our circuit (largely in

Nevada), have held that cataracts are a “serious medical

condition” for purposes of the Eighth Amendment. See, e.g.,

Cobbs v. Pramstaller, 475 F. App’x 575 (6th Cir. 2012);

Michaud v. Bannister, No. 2:08-CV-01371-MMD-PAL, 2012

WL 6720602 at *4–6 (D. Nev. Dec. 26, 2012); Morris v.

Corr. Med. Servs., No. 2:07-CV-10578, 2012 WL 5874477

at *3 (E.D. Mich. Nov. 20, 2012) (“[A] lay person would

easily recognize the necessity for a doctor to extract a

cataract.”); Layton v. Bannister, No. 3:10-CV-00443-LRH-

WGC, 2012 WL 6969758 at *6 (D. Nev. Sept. 28, 2012)

who suffered sudden monocular blindness adjusted to driving, working,

recreation, home activities, and walking within one month of the sudden

loss. John V. Linberg, M.D., et al., Recovery After Loss of an Eye,

3 Ophthalmic Plastic & Reconstructive Surgery, 135, 135–38 (1988). Of

those studied, 93% were fully adjusted within a year. Id. In a study of

125 monocular patients, 85 out of 125 said that loss of vision had not

changed their lives in any permanent way. Id.

8

A list of well known monocular persons might include leaders such as

Moshe Dyan, Theodore Roosevelt, and Mo Udall; writers such as James

Joyce, William Shirer, and Alice Walker; and entertainers such as Sandy

Duncan, Peter Falk, Rex Harrison, Claude Rains, Sammy Davis Jr., and

Johnny Depp. See, e.g., LostEye, Success After the Loss of an Eye,

www.losteye.com/oneeyers.htm (last visited Aug. 1, 2014).

38 COLWELL V. BANNISTER

(finding that the referral for surgery was “evidence of an

injury that a reasonable doctor would find important and

worthy of comment or treatment” while relying on

McGuckin); Hunt v. Mohr, No. 2:11-CV-00653, 2012 WL

1537294 at *4 (S.D. Ohio May 1, 2012) (cataracts constitute

a serious medical need); White v. Snider, No. 3:08-CV-252-

RCJ (VPC), 2010 WL 331742 (D. Nev. Jan. 26, 2010);

Garcia v. Nev. Bd. of Prison Comm’rs, No. 3:06-CV-0118-

JCM (VPC), 2008 WL 818981 (D. Nev. Mar. 24, 2008).9

On the other hand, a comparable number of

courts—including our court—have held that cataracts may

not be a serious medical condition. See, e.g., Hummer v.

Schriro, 407 F. App’x 112, 113 (9th Cir. 2010) (“Hummer

failed to present evidence showing that the defendant’s denial

of cataract surgery in his right eye has caused or will cause

further injury, or that the defendants knew of other serious

pain or medical problems caused by Hummer’s cataract”);

Thomas v. Stephens, No.7:10-CV-00090, 2011 WL 1532150,

at *4 (W.D. Va. Apr. 4, 2011) (“Plaintiff fails to establish that

his cataract constitutes a serious medical need under the

Eighth Amendment because the record does not demonstrate

a ‘substantial risk’ of serious harm or permanent disability.”);

Dupuis v. Caskey, No. 4:08CV63-LRA, 2009 WL 3156527,

at *4 (S.D. Miss. Sept. 28, 2009) (finding no deliberate

indifference because cataract surgeries are considered

9

Some of these cases have facts that present a much stronger case for an

Eighth Amendment violation than Colwell’s. For example, in Cobbs, the

inmate’s treating doctor advised that cataract surgery was necessary “to

prevent secondary glaucoma,” and that delayed cataract removal would

make surgery more complicated. 475 F. App’x at 578, 582. Similarly, the

inmate in Michaud suffered from a cataract that caused him severe

headaches, and doctors advised that the cataract could cause glaucoma or

permanent blindness. Michaud, 2012 WL 6720602, at *1, 4.

COLWELL V. BANNISTER 39

elective (citing the American Optometric Association's

Optometric Clinical Practice Guidelines)); Hurt v. Mahon,

No. 1:09CV958(LO/JFA), 2009 WL 2877001, at * 2 (E.D.

Va. Aug. 31, 2009) (“[I]t is doubtful that a cataract is a

sufficiently serious medical need to support an Eighth

Amendment violation.”); Wilson v. Turner, No. 6:08-CV-

06056, 2009 WL 1634894, at * 6 (W.D. Ark. June 10, 2009)

(holding that cataract surgery was neither an emergency nor

a medical necessity); Rylee v. Bureau of Prisons, No. 8:08-

CV-1643-PMD-BHH, 2009 WL 633000 at *4 (D.S.C. Mar.

9, 2009) (BOP decision not to secure cataract surgery until

the remaining eye deteriorated further was not deliberate

indifference); Williams v. Shelton, No. 06-95-KI, 2008 WL

2789031, at *3 (D. Or. July 16, 2008) (delay in providing

cataract surgery on second eye was not deliberate

indifference); see also Samonte v. Bauman, 264 F. App’x

634, 635 & n.1 (9th Cir. 2008) (finding that delay before

conducting cataract surgery was not deliberate indifference

and declining to reach the issue whether there was “a serious

medical need”); United States v. Schuett, No. 2:-LO-CR-118-

RLH-RJJ, 2014 WL 289433 (D. Nev. Jan. 27, 2014)

(declining to order the early release of the inmate so he could

have cataract surgery in both eyes); Phillips v. Lindamood,

No. 3:09-1187, 2009 WL 5205379 (M.D. Tenn. Dec. 23,

2009) (doctor who declined to perform cataract surgery on a

second eye was not deliberately indifferent); Espinosa v.

Saladin, No. 1:08-CV-736, 2009 WL 3102483, at *3 (W.D.

Mich. Sept. 23, 2009) (denial of cataract surgery where

inmate had acceptable vision in his remaining eye was not

deliberate indifference); Stevenson v. Pramstaller, 2009 WL

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

What these cases demonstrate is that the question of

whether a cataract constitutes a “serious medical condition”

40 COLWELL V. BANNISTER

has been a difficult and controversial one. The courts have

divided, and they have examined each case on its own facts.

No court has taken the step that ours takes today of

pronouncing that a cataract resulting in monocular blindness

is, categorically, a serious medical condition that the states

must correct under the Eighth Amendment. These cases,

from courts in the Fourth, Fifth, Sixth, Eighth, and Ninth

Circuits also tell us something about how the nation’s prisons

have addressed the problem: Nevada is not alone in its

decision to address cataracts on a case-by-case basis, rather

than categorically. That should also tell us, as I explain in the

next section, that our court has gotten well in front of our

“evolving standards of decency.” Rhodes, 452 U.S. at 346

(internal quotation marks omitted); see also id. (“[N]o static

‘test’ can exist by which courts determine whether conditions

of confinement are cruel and unusual.”).

IV

“Deliberate indifference is a high legal standard,” Toguchi

v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), that is only

“satisfied by showing (a) a purposeful act or failure to

respond to a prisoner’s pain or possible medical need and

(b) harm caused by the indifference.” Jett, 439 F.3d at 1096.

Deliberate indifference does not include failure to treat a

condition that is not serious. See Estelle, 429 U.S. at 104–05;

see also Farmer, 511 U.S. at 837 (Deliberate indifference

requires that a prison official “knows of and disregards an

excessive risk to inmate health or safety.” (emphasis added));

Peralta, 744 F.3d at 1081–82. It also does not include “mere

negligence in diagnosing or treating a medical condition,”

Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.

1988), or a difference of medical opinion, Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Nor does

COLWELL V. BANNISTER 41

deliberate indifference include a “mere delay of surgery . . .

unless the denial was harmful.” Shapley v. Nev. Bd. of State

Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In sum,

“the offending conduct must be wanton.” Wilson, 501 U.S.

at 302.

Colwell cannot satisfy either of these conditions. He does

not “allege acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs,” Estelle,

429 U.S. at 106, and he cannot show that the denial of

cataract surgery caused any harm. NDOC’s decision was a

reasonable one.

A

The majority holds that “the blanket, categorical denial”

of cataract surgery solely on the basis of an administrative

policy is “the paradigm of deliberate indifference.” Maj. Op.

3–4. I agree with the majority that “blanket policies” may run

afoul of the Eighth Amendment. Even the State “agrees that

a medical policy that is divorced from an inmate-patient’s

medical needs would be constitutionally defective.” But here,

the majority’s description of Medical Directive 106 is

erroneous because it is not a blanket “one good eye policy.”

Although Colwell and the majority repeatedly refer to

Medical Directive 106 as a “one good eye policy,” that phrase

appears nowhere in the Directive or in the official responses

that Colwell received. The evidence for such an explicit

policy is all hearsay. It was Colwell who first complained

that doctors and a nurse told him there is a “one good eye

policy.” That claim is belied by the record, both the official

published policy and the way in which NDOC treated

Colwell’s request. NDOC has published protocols for

42 COLWELL V. BANNISTER

medical conditions and a directive specifically for cataracts.

Medical Directive 106, entitled “Cataracts” states as follows:

“It is the policy of the Department that inmates with cataracts

will be evaluated on a case by case basis, taking into

consideration their ability to function within their current

living environment.”10 With respect to “[s]urgical removal of

cataracts,” Medical Directive 106 provides that “[p]atients

with visual impairment incompatible with the ability to

perform the required tasks of daily living in their current

living environment may be considered for removal of a

cataract.”

Moreover, Colwell’s experience demonstrates that

Nevada has not categorically refused Colwell treatment. In

fact, Nevada provided Colwell with corrective cataract

surgery on his left eye in 2001. In response to his grievances

filed in 2010 (the latest for which we have a record), he was

denied his request for surgery at the informal level of review

because his remaining eye was “corrected to 20/20 vision,”

which put any surgery in a “non-essential category.” At the

first level of review, NDOC repeated that his surgery was “at

present non-essential. Your one eye is corrected to 20/20.”

At the second, and final level of review, NDOC stated that

“[i]n almost [all] cases cataract surgery is not an emergency.

You should be evaluated periodically to determine the degree

of impairment caused by your cataract with regard to your

ability to perform the activities required in your current living

10

Ironically, Medical Directive 106 is quite consistent with McGuckin’s

alternative description of a serious medical condition as “a medical

condition that significantly affects an individual’s daily activities.”

McGuckin, 974 F.2d at 1060. The majority, of course, makes no claim

that Colwell’s condition significantly affects his daily activities.

COLWELL V. BANNISTER 43

situation. Based on the practitioner[’]s evaluation the request

can be re-considered.”

Case-by-case policies such as Nevada’s are fully

consistent with accepted medical and prison practices.

Indeed, Nevada’s policy appears to be more generous than the

comparable federal policies. The Federal Bureau of Prison’s

“Opthalmology Guidance” provides that “emergent or urgent

ophthalmologic surgeries should never be delayed” and that

“all elective ophthalmologic surgery, including surgery for

cataracts” must be approved by the Regional Medical

Director. Federal Bureau of Prisons, Ophthalmology

Guidance 5 (Feb. 2008), available at www.bop.gov/resources/

pdfs/opthamology_guidance_2008.pdf. The criteria for that

decision are:

Cataract Surgery: There must be

documentation of a best-corrected visual

acuity of less than 20/60 in both eyes with

current (less than six months old) refraction.

Second eye surgery requires a documented,

best-corrected visual acuity of 20/100 or less.

Id. BOP will consider special circumstances, such as the

need for “retinal visualization (i.e., not for improvement in

vision).” Id. at 6.11 Similarly, the United States Marshals

11

These guidelines were at issue in Rylee v. Bureau of Prisons, 2009

WL 633000. In Rylee, the inmate had a cataract in his right eye that was

rapidly progressing. Id. at *2. His optometrists recommended that he

receive cataract surgery, but Rylee did not come within BOP’s guidelines

because his good left eye had visual acuity of 20/60 or better. Id. Rylee

was not in pain, and the doctors stated that delaying any surgery would not

cause any irreparable damage to the eye. Id. at *4. They also stated that

when Rylee’s vision was less than 20/60 for six months “and his condition

44 COLWELL V. BANNISTER

Service classifies cataract surgery as elective and a “non-

authorized medical intervention/procedure.” Cataract surgery

will not be authorized payment unless ordered by a court or

pre-authorized by the Office of Interagency Medical Services.

U.S. Marshals Service, Prisoner Health Care Standards 2,

13, 16 (Nov. 2007), available at www.usmarshals.gov/foia/

Reading_Room_Information/Publications/prisoner_health_

care_standards.pdf

The states within our circuit have similar policies.

Washington, for example, has a policy quite close to the

BOP’s. It authorizes care for an inmate’s “[w]orst one eye if

both eyes have best corrected [visual acuity] <20/60” or

“[e]ither or both eyes if inadequate visualization of retina for

screening, management, or monitoring of another disease, e.g.

diabetic retinopathy.” Washington Dep’t of Corrs., Offender

Health Plan 17. Like Nevada, Oregon provides that the

treatment of cataracts is classified as “[m]edically

[a]cceptable but not [m]edically [n]ecessary” and that

treatment “[w]ill be authorized on an individual-by-individual

basis or a problem-by-problem basis.” The factors Oregon

will consider include “[w]hether the surgery/procedure could

be or could not be reasonably delayed without causing a

significant progression, complication, or deterioration of the

condition,” the “[m]edical necessity – the overall morbidity

and mortality of the condition if left untreated,” and the

“[p]ain [c]omplaints/[p]ain [b]ehaviors.” Oregon Dep’t of

interferes with his activities of daily living, Mr. Rylee [would] be

considered for cataract surgery.” Id. The district court granted judgment

for the defendants because “the record, in no way, reflect[ed] that

Defendants exhibited deliberate indifference to Plaintiff’s condition

Defendants’ decision to adhere to federal prison guidelines rather than

follow the optometrist’s recommendation of cataract surgery constitute[d]

a difference of medical opinion.” Id.

COLWELL V. BANNISTER 45

Corrs., Health Servs. Section Policy and Procedure #P-A-

02.1.B.3.C). Alaska likewise describes corneal transplants

for cataracts as “[m]edically [a]cceptable but not [m]edically

[n]ecessary.” Alaska Dep’t of Corrs., Prisoner Health Plan

7 (June 26, 2002).12 California does not mention cataracts

specifically but has a general policy of “only provid[ing]

medical services for inmates, which are based on medical

necessity.” Cal. Code Regs. tit. 15, § 3350(a) (2014).

“Medically [n]ecessary means health care services that

are determined by the attending physician to be

reasonable and necessary to protect life, prevent significant

illness or disability, or alleviate severe pain.” Id. at tit. 15,

§ 3350(b)(1). “Significant illness and disability” means “any

medical condition that causes or may cause if left untreated

a severe limitation of function or ability to perform the daily

activities of life or that may cause premature death.” Id. at tit.

15, § 3350(b)(5).13

12

Alaska’s general policy provides that prisoners have “the right to

receive essential health care services.” These services include medical

services when a healthcare provider concludes that (1) the prisoner’s

symptoms indicate “a serious disease or injury” (2)that “treatment could

cure or substantially alleviate” and (3) there is either “potential for harm

if treatment is delay or denied” or “[s]ervices are needed to alleviate pain

and suffering.” Alaska Dep’t of Corrs., Policies and Procedures 807.02,

VII.B.1 (June 18, 2008).

13

I have not been able to locate exact rules for Hawaii, Idaho and

Montana. Idaho has a general rule that “[a]ny extraordinary treatment

shall be approved by the health authority prior to treatment.” Idaho

Admin. Code 06.01.01.302.05.c (2014). Montana has different approach:

“All residents [at community correctional centers] shall pay for their own

. . . medical and dental expenses.” Mont. Admin. R. 20.7.204(1) (1982).

Similarly, inmates incarcerated Hawaii are responsible for a medical co-

payment for many types of treatment, and must pay the full cost of

elective procedures. Hawaii Dep’t of Public Safety, Policy No.

COR.10.1A.13 (2010).

46 COLWELL V. BANNISTER

Colwell’s case evidences the fact that NDOC makes

individualized, case-by-case assessments, as required by

Medical Directive 106, because Colwell received cataract

removal surgery on his left eye in 2000 despite the fact that

he had vision in both eyes. Nevada’s policy,14 which is

consistent with that of other jurisdictions, both federal and

state, is not a blanket “one good eye” policy.

B

If NDOC does not have a policy of not treating cataracts,

then we need to consider the facts of Colwell’s case. In

Estelle, the Supreme Court held that “a prisoner must allege

acts or omissions sufficiently harmful to evidence deliberate

indifference.” 429 U.S. at 106. We have held that deliberate

indifference requires a showing that failure to treat an

inmate’s condition “could result in further significant injury

or the unnecessary and wanton infliction of pain.” Jett,

439 F.3d at 1096 (internal quotation marks omitted).

Judged by that standard, prison officials have not been

deliberately indifferent to Colwell’s condition. Colwell has

been blind in his right eye since 2002, and his condition has

not worsened since then. During the time that he had the

cataract, Colwell declined medical treatment—that is, he

decided to live with the condition—for five years. It is

undisputed that Colwell’s cataract is not painful and that the

cataract has not—and will not—cause irreversible damage.

His monocular vision can be corrected by surgery in the

14

Nevada urges us to adopt a test for “overall visual acuity” to

determine who has a “serious medical need” and is entitled to cataract

surgery. That standard, although not articulated in Medical Directive 106,

is closest to the BOP’s and the State of Washington’s guidelines.

COLWELL V. BANNISTER 47

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

surgery should anything change in Colwell’s condition.15

Alternatively, the majority cites “the other harms and dangers

that flow from” monocular blindness as evidence of

deliberate indifference. Maj. Op. at 14. But as I discussed

above, these harms and dangers cannot support a finding of

deliberate indifference.

To the extent that there are future dangers that may be

caused by monocular blindness, there is no evidence that such

unidentified dangers pose an “unreasonable risk of serious

damage to his future health.” Helling, 509 U.S. at 35. Given

Colwell’s history, it is probable that these future “dangers”

include unfortunate, but minimally harmful, cuts and scrapes.

Such potential injuries are not enough to show that NDOC’s

denial of surgery poses an unreasonable risk of serious

damage to Colwell’s future health. Accordingly, I would

hold that Colwell cannot prove “harm caused by the

indifference,” as required by Jett. See 439 F.3d at 1096.

NDOC, like all prisons, must make difficult decisions

about inmate medical care and control costs wherever

possible, consistent with the Eighth Amendment. See

Peralta, 744 F.3d at 1084 (“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.”). I assume that NDOC would prefer to

treat Colwell’s cataract. But, given his individual

circumstances, NDOC made a reasonable medical decision

15

The majority states that monocular blindness “is harm in and of

itself.” Maj. Op. at 14. This reasoning begs the question. Were the

majority’s reasoning correct, any injury or condition would qualify

because the injury would be harm in and of itself.

48 COLWELL V. BANNISTER

that Colwell would receive regular evaluations to monitor his

condition, and if it worsens, would consider a new medical

request. Although NDOC’s administrators and physicians

may have a different perspective from that of Colwell’s

treating physicians, monitoring a cataract, rather than

performing surgery, is a legitimate medical decision. See

Am. Optometric Ass’n, Care of the Adult Patient with

Cataract 17 (2010), available at www.aoa.org/documents/

optometrists/CPG-8.pdf (“If the patient has few functional

limitations as a result of the cataract and surgery is not

indicated, it may be appropriate to follow the patient at 4 to

12-month intervals to evaluate eye health and vision.”). And

such differences of opinion do not evidence deliberate

indifference. Jackson, 90 F.3d at 332 (“[W]here a defendant

has based his actions on a medical judgment that either of two

alternative courses of treatment would be medically

acceptable under the circumstances, plaintiff has failed to

show deliberate indifference, as a matter of law.”); see also

Cobbs, 475 F. App’x at 582–83 (finding that a directive to

monitor an inmate’s cataract closely was “the product of

considered medical judgment”); Samonte, 264 F. App’x at

636 (holding that refusal to authorize cataract surgery after a

doctor recommended surgery was a difference of medical

opinion). Indeed, this is not a case where “an individual sat

idly by as another human being was seriously injured,”

McGuckin, 974 F.2d at 1060, because NDOC provided

Colwell with regular eye care. As the majority states,

Colwell received cataract surgery on his left eye, yearly

physicals, and consultations with an opthamologist and an

optometrist. See Maj. Op. at 5–7. Such routine eye care

“belies the notion that [NDOC] acted with deliberate

indifference.” Cobbs, 475 F. App’x at 583; see also Estelle,

429 U.S. at 107 (finding inmate’s claim noncognizable where

he received medical treatment on seventeen occasions.);

COLWELL V. BANNISTER 49

Hummer, 407 F. App’x at 113 (upholding summary judgment

where inmate “failed to present evidence showing that the

defendants’ denial of cataract surgery in his right eye has

caused or will cause further injury”).16

NDOC’s treatment was reasonable. Colwell is not in any

pain and he is able to engage in many activities. The

alternative course of treatment that NDOC selected—wait

and see—did not cause life-threatening injury. Because of

Colwell’s functionality, NDOC’s decision not to authorize

cataract removal surgery was consistent with Medical

Directive 106. Instead, this case is most like Samonte and

Layton, where this court and the District of Nevada found that

NDOC’s refusal to authorize cataract removal surgery did not

violate the Eighth Amendment. See Samonte, 264 F. App’x

at 636 (“Dr. Bauman’s refusal to authorize cataract surgery

after another doctor determined that such surgery was an

option was a difference of medical opinion, insufficient by

16

The panel cites Snow, 681 F.3d 978, as an example where prison

officials rejected the recommendations of outside specialists and

unreasonably denied the inmate surgery for two years. Maj. Op. at 15.

The majority’s reliance on Snow is misplaced. In Snow, the inmate was

in “excruciating and unbearable pain.” 681 F.3d at 983. Snow’s hips had

degenerated to the point where he was barely able to walk, could not

kneel, and required assistance with everyday activities such as getting out

of bed and putting on his socks. Id. at 982–83. The state even conceded

that Snow had a serious medical need. Id. at 985. But after Snow’s

treating physicians indicated that he needed bilateral hip replacement

surgery, NDOC authorized only pain relievers and anti-inflammatories.

Id. at 983. In turn, the medications made Snow’s creatinine levels

skyrocket, causing a potentially life-threatening situation. Id. at 984. We

observed that the inmate’s medical condition interfered with his ability to

function. Id. And we questioned whether it was a reasonable medical

decision to adopt a medication only approach, where doing so long-term

caused additional serious medical problems. Id. at 988.

50 COLWELL V. BANNISTER

itself to raise a triable issue of deliberate indifference.”)

(internal quotation marks omitted); Layton, 2012 WL

6969758 at *10 (finding no deliberate indifference where

“[d]efendant’s decision to deny Layton’s request for cataract

surgery on the grounds that Layton’s condition did not meet

the prison’s medical criteria amounts to a difference of

opinion regarding the appropriate course of treatment.”).

Finally, NDOC could not have been deliberately

indifferent to Colwell’s serious medical needs if it did not

know why Colwell required cataract removal surgery or

whether surgery was necessary for Colwell to complete the

required activities of daily living. Farmer, 511 U.S. at

837–38 (clarifying that deliberate indifference is comparable

to a reckless mens rea in that recklessness is the disregard of

a known risk of harm). His annual physicals—at least those

to which Colwell consented—ask the physician to report

whether he had any “functional limitation/disability.” There

are no comments in these sections. In a 2009 Consultation

Report, Dr. Scott checked “yes” to the question “[d]oes this

condition significantly affect qualify of life?”, but he did not

explain how the condition affected Colwell, and he wrote on

the front of the report that he had discontinued the report

altogether. In sum, neither Colwell’s requests nor the

discontinued consultation report provided information that

put prison officials on notice that Colwell’s cataract rendered

him unable to perform the required tasks of daily living.

I would hold that the respondents were not deliberately

indifferent to Colwell’s alleged “serious medical needs,”

because Colwell did not meet the difficult legal burden of

showing “a purposeful act or failure to respond to a prisoner’s

pain or possible medical need and [ ] harm caused by the

indifference.” Jett, 439 F.3d at 1096.

COLWELL V. BANNISTER 51

V

The realities of an overcrowded prison system force

difficult choices about the appropriate treatment for inmates’

medical needs. The growing number of elderly inmates

makes this problem all the more difficult because physical

and mental functions often decline with age.17 Between 2007

and 2010, the number of prisoners over the age of 65 grew 94

times faster than the general prison population; it is estimated

that one third of prisoners will be over the age of 50 by

2030.18 Nationally, it costs $16 billion to incarcerate 246,600

elderly inmates. American Civil Liberties Union, The Mass

Incarceration of the Elderly 28 (June 2012), available at

https://www.aclu.org/files/assets/elderlyprisonreport_2012

0613_1.pdf. According to the State, in Nevada, elderly

inmates constitute 5.8% of the state’s prison population, but

they account for 20% of the prison’s annual budget.19

Cataracts are a particularly common—and costly—

problem. In the general population, 20.5 million Americans

over the age of 40 have cataracts. See, Centers for Disease

17

See Nadine Curran, Blue Hairs in the Bighouse: The Rise in the

Elderly Inmate Population, Its Effect on the Overcrowding Dilmma and

Solutions to Correct It, 26 New. Eng. J. on Crim. & Civ. Confinement

225, 239–40 (2000) (describing changes caused by aging); Timothy

Curtin, The Continuing Problem of America’s Aging Prison Population

and the Search for a Cost-Effective and Socially Acceptable Means of

Addressing it, 15 Elder L.J. 473, 481 (2007).

18

Casey N. Ferri, A Stuck Safety Valve: The Inadequacy of

Compassionate Release for Elderly Inmates, 43 Stetson L. Rev. 197,

197–98 (2013).

19

Nevada has the sixth largest elderly inmate population in the nation.

See ACLU, The Mass Incarceration of the Elderly at Figure 2A.

52 COLWELL V. BANNISTER

Control and Prevention, Common Eye Disorders. The CDC

predicts that 30.1 million Americans will have at least one

cataract by 2020. Id. On average, 3 million Americans have

cataract surgery each year at an estimated cost of $3,279 per

surgery, and in 2013 alone the federal government spent $3.4

billion to treat cataracts through Medicare. See Statistic

Brain Research Institute, Cataract Statistics (verified July 28,

2013), www.statisticbrain.com/cataract-statistics.

If we are going to assume responsibility for prescribing

the level of health care for the nation’s inmates, we need to

consider the potential consequences of our choices. At some

point, the states may decide not to treat aging prisoners but

simply release them.20 The former inmates will still have

whatever serious medical conditions we identified, but some

may not have the benefit of the state’s care. Whether aging

prisoners will have the resources then to attend to their own

medical needs remains to be seen. See, e.g., Christine M.

Hummert, Middle of the Road, 32 J. Legal Med. 295, 295–96

(2011) (discussing mentally disabled inmates and expressing

concern that “many of those released from prison are literally

standing ‘in the middle of the road’ with nowhere to turn and

no one to turn to.”); Ronald H. Aday, Jennifer J. Krabill,

Aging Offenders in the Criminal Justice System, 7 Marq.

Elder’s Advisor, 237, 258 (“[I]nmates who have spent a

greater portion of their lives incarcerated will need intensive

discharge planning and community placement orientation.”);

Nancy B. Mahon, Symposium: Death and Dying Behind

20

Many jurisdictions already allow for compassionate release of

terminally ill inmates and those who suffer from chronic conditions. See

Brie A. Williams, M.D., et al., Balancing Punishment and Compassion for

Seriously Ill Prisoners, 155(2) Annals of Internal Medicine 122–26

(2011).

COLWELL V. BANNISTER 53

Bars—Cross-Cutting Themes and Policy Imperatives, 27 J. L.

Med. & Ethics 213, 214 (1999) (“[M]ost prison systems do

not have the funds or the institutional impetus to provide

adequate discharge planning for ill prisoners.”).

I repeat myself: If I were the warden and had the

resources, I would treat Colwell’s cataract, just as I would

treat my own cataract, if I had the resources. And there is the

rub—the question of resources. I suspect that for a

significant number of Americans afflicted with cataracts,

surgery is beyond their means. Yet they function quite

normally among us, holding jobs and driving cars and

carrying on the ordinary activities of life. For most of them,

cataract surgery remains elective surgery. See Cleveland

Clinic, Cole Eye Institute, Cataracts and Cataract Surgery,

http://my.clevelandclinic.org/cole-eye/diseases-conditions/

hic-cataracts-cataract-surgery.aspx (last visited Aug. 1, 2014)

(“[T]he patient can decide if and when he or she wants to

have surgery (elective surgery).”); American College of Eye

Surgeons, Guidelines for Cataract Practice 7.2,

http://www.aces-abes.org/guidelines_for_cataract_practice.

htm (last visited Aug. 1, 2014) (“In most circumstances,

cataract surgery is elective.”). I do not understand the Eighth

Amendment to compel Nevada to provide surgery for John

Colwell that he might or might not seek for himself if he were

free to do so.

VI

“Caution is necessary lest this [c]ourt become, ‘under the

aegis of the Cruel and Unusual Punishment Clause, the

ultimate arbiter of the standards of criminal responsibility . . .

throughout the [Circuit].’” Gregg, 428 U.S. at 176 (quoting

Powell v. Texas, 392 U.S. 514, 533 (1968) (omission in

54 COLWELL V. BANNISTER

original); see also Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th

Cir. 1982) (“The Eighth Amendment is not a basis for broad

prison reform.”). Although I sympathize with Colwell’s

plight, he was not denied medical treatment in violation of the

Eighth Amendment’s prohibition against cruel and unusual

punishment because the respondents were not deliberately

indifferent to Colwell’s condition. Accordingly, I would

affirm the judgment of the district court in favor of the

respondents.

I respectfully dissent.