George Mitchell v. State of Washington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE O. MITCHELL, No. 13-36217

Plaintiff-Appellant,

DC No.

v. 3:12 cv-05403

BHS

STATE OF WASHINGTON; KELLY

CUNNINGHAM, SCC Superintendent;

DR. THOMAS BELL, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

April 6, 2015—Pasadena, California

Filed March 14, 2016

Before: Dorothy W. Nelson, A. Wallace Tashima,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Tashima;

Concurrence by Judge Clifton

2 MITCHELL V. STATE OF WASHINGTON

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment

in an action brought pursuant to 42 U.S.C. § 1983 in which

plaintiff, who is civilly committed as a sexually violent

predator, alleged that defendants’ refusal to treat his Hepatitis

C with interferon and ribavirin violated his right to reasonable

medical care and that the consideration of race in the denial

of this treatment violated the Equal Protection Clause.

The panel first held the district court erred by finding that

the damages claims against the state defendants were barred

by the Eleventh Amendment. The panel held that even

though plaintiff testified in his deposition that he was suing

defendants only in their official capacities, his amended

complaint clearly stated that he was suing defendants in both

their official and personal capacities for damages and

injunctive relief and the record demonstrated that plaintiff,

acting pro se, did not understand the legal significance of

bringing claims against defendants in their official versus

personal capacities.

The panel held that plaintiff’s claims for injunctive and

declaratory relief were moot because he received the

requested treatment. The panel next found that plaintiff had

failed to show any evidence that defendants’ decision not to

administer interferon and ribavirin was unreasonable and

failed to meet the appropriate standard of care.

*

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

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

MITCHELL V. STATE OF WASHINGTON 3

Addressing plaintiff’s equal protection claim, the panel

held that plaintiff set forth specific facts plausibly suggesting

that defendant Dr. Bell employed an explicit racial

classification sufficient to trigger strict scrutiny when he

determined not to recommend plaintiff for interferon and

ribavirin treatment. The panel held that Dr. Bell failed to

meet his burden under the strict scrutiny because he failed to

offer any compelling justification for the racial classification,

let alone a justification that was narrowly tailored; instead,

arguing only that plaintiff’s equal protection claim failed

because race was not the “primary” consideration in denying

treatment. The panel nevertheless held that Dr. Bell was

entitled to qualified immunity because it was not clearly

established that a reasonable official would understand that

the use of race-related success-of-treatment data as a factor in

a medical treatment decision would be unconstitutional.

Concurring in part and concurring in the judgment, Judge

Clifton agreed with most of the specific conclusions of the

majority opinion, including that the claims were not barred by

the Eleventh Amendment, that the claims for injunctive and

declaratory relief were moot, and that Dr. Bell was entitled to

qualified immunity. Judge Clifton would not take up the

question of whether the Constitution forbids a doctor from

considering credible scientific evidence that individuals of a

certain race respond poorly to a particular treatment.

Nevertheless if required to do so, he would conclude that,

under the circumstance, plaintiff’s rights were not violated.

4 MITCHELL V. STATE OF WASHINGTON

COUNSEL

Erwin Chemerinsky, Peter Afrasiabi, Kathryn Marie Davis,

Appellate Litigation Clinic, University of California, Irvine

School of Law; Tommy Du (argued), Catriona Lavery

(argued), Law Students, Irvine, California, for Plaintiff-

Appellant.

Robert W. Ferguson, Attorney General of Washington, Grace

C.S. O’Connor (argued) and Christopher Lanese, Assistant

Attorneys General, Olympia, Washington, for Defendants-

Appellees.

OPINION

TASHIMA, Circuit Judge:

Plaintiff-Appellant George Mitchell brought this action

against Defendants-Appellees (“Defendants”) for injunctive

relief and damages under 42 U.S.C. § 1983, alleging

constitutionally inadequate medical care and a violation of

the Equal Protection Clause. The district court granted

summary judgment in favor of Defendants, and Mitchell

timely appealed. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I.

BACKGROUND

George Mitchell, a fifty-nine year old African-American

male, has been civilly committed as a sexually violent

predator to the Special Commitment Center (“SCC”) by the

MITCHELL V. STATE OF WASHINGTON 5

State of Washington since June 27, 2003. See In re Det. of

Mitchell, 249 P.3d 662 (Wash. Ct. App. 2011).

On approximately December 14, 2000, prior to his arrival

at the SCC, Mitchell was diagnosed with Hepatitis C. From

approximately 2003 to 2005, Mitchell met with one of SCC’s

consulting physicians, Dr. W. Michael Priebe, of the Tacoma

Disease Center. As a consulting specialist, Dr. Priebe was

limited to recommending certain courses of treatment, and

did not have the authority to order treatment. In mid-2005,

Dr. Priebe discussed treatment options with Mitchell. One of

the treatment options discussed was the administration of

interferon and ribavirin. Because interferon and ribavirin are

weight-based medications (meaning dosage depends on the

patient’s weight), Mitchell agreed to postpone this type of

treatment until he could lose weight.

In May of 2009, Mitchell met with Dr. Thomas Bell, then

the Medical Supervisor of SCC, to discuss his liver biopsy

results and review treatment options. During that meeting,

based on a belief that his condition was deteriorating,

Mitchell requested interferon and ribavirin treatment. Dr.

Bell informed Mitchell that the interferon and ribavirin

treatment for his genotype had been largely unsuccessful on

African-American males. In addition, after reviewing

Mitchell’s liver biopsy results, Dr. Bell told Mitchell that his

Hepatitis C had not progressed to a level that would justify

the harsh side effects of the requested treatment. Based on

these factors, Dr. Bell did not recommend Mitchell for

interferon and ribavirin treatment. In November of 2012,

Mitchell was placed on interferon and ribavirin. The

treatment was ultimately unsuccessful.

6 MITCHELL V. STATE OF WASHINGTON

Mitchell commenced this action on August 23, 2012,

against Defendants Dr. Bell, Kelly Cunningham,

Superintendent of SCC, and the State of Washington.1

Mitchell sued Dr. Bell and Cunningham in their individual

and official capacities. Mitchell alleged that Dr. Bell’s

refusal to refer him for interferon and ribavirin treatment

violated the Fourteenth Amendment for two reasons:2 (1) the

denial of interferon and ribavirin treatment violated his right

to reasonable medical care; and (2) the consideration of race

in the denial of treatment violated the Equal Protection

Clause.

On referral of this case for a report and recommendation

(“R&R”), the Magistrate Judge recommended that

Defendants’ motion for summary judgment be granted. The

Magistrate Judge first ruled that all claims against the State

of Washington were barred by the Eleventh Amendment.

Second, she ruled that because Mitchell testified in his

deposition that is he suing Cunningham and Dr. Bell in their

official capacities, all claims for damages against them are

barred by the Eleventh Amendment. The Magistrate Judge

then excluded a declaration proffered by Mitchell because it

was unsigned and because the declarant lacked sufficient

qualifications and personal knowledge. She next ruled that

Defendants are entitled to qualified immunity because

Mitchell failed to assert a constitutional violation.

1

Mitchell also sued Randall Griffith, Paul Temposky, and Christine

Haueter. These individuals are no longer defendants in this action.

2

Mitchell also alleged that the decision not to authorize his requested

Hepatitis C diet violated the Fourteenth Amendment. The district court

granted summary judgment in favor of Defendants on this claim and

Mitchell has not appealed this issue.

MITCHELL V. STATE OF WASHINGTON 7

Specifically, the Magistrate Judge ruled that Mitchell

presented no evidence that Dr. Bell’s treatment of Mitchell

did not meet the appropriate standard of care for a medical

provider, and that Mitchell’s equal protection claim failed

because he had not shown that Defendants acted with the

intent or purpose to discriminate.

The District Court adopted the Magistrate Judge’s R&R

and entered judgment against Mitchell.

II.

STANDARD OF REVIEW

This Court reviews a district court’s grant of summary

judgment de novo. Vasquez v. Cty. of L.A., 349 F.3d 634, 639

(9th Cir. 2003). The Court must “determine whether, viewing

the evidence in the light most favorable to the nonmoving

party, there are any genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th

Cir. 2000) (en banc) (citing Balint v. Carson City, 180 F.3d

1047, 1050 (9th Cir. 1999) (en banc)).

III.

DISCUSSION

A. Eleventh Amendment Immunity

The Eleventh Amendment bars claims for damages

against a state official acting in his or her official capacity.

Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per

curiam). It does not, however, bar claims for damages

8 MITCHELL V. STATE OF WASHINGTON

against state officials in their personal capacities. Id.

Moreover, when a plaintiff sues a defendant for damages,

there is a presumption that he is seeking damages against the

defendant in his personal capacity. Romano v. Bible,

169 F.3d 1182, 1186 (9th Cir. 1999).

Mitchell’s First Amended Complaint clearly states that he

is suing Cunningham and Dr. Bell in both their official and

personal capacities for damages and injunctive relief. The

district court, however, relying on Mitchell’s deposition

testimony that he is suing Cunningham and Dr. Bell only in

their official capacities, held that all claims for damages

against Cunningham and Dr. Bell should be dismissed. But

the record clearly demonstrates that Mitchell, who was acting

pro se, did not understand the legal significance between

bringing claims against Dr. Bell and Cunningham in their

official versus personal capacities. Further, in questioning

Mitchell, Defendants’ attorney failed adequately to explain

the significance of the difference, even after Mitchell

signified that he did not understand the legal jargon and

would need assistance. As a result, we conclude that Mitchell

is not bound by his deposition testimony and Mitchell’s

damages claims against Defendants in their individual

capacities are not barred by the Eleventh Amendment.3 To

hold otherwise would “threaten[] to ensnare parties who may

have simply been confused during their deposition testimony

and may encourage gamesmanship by opposing attorneys.”

Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir.

2009).

3

Mitchell does not contest the district court’s holding that all claims

against the State of Washington are barred by the Eleventh Amendment.

MITCHELL V. STATE OF WASHINGTON 9

B. Mootness

Although not briefed by the parties, before reaching the

merits of Mitchell’s claims, we must consider whether

Mitchell’s claims for injunctive and declaratory relief are

moot. See Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d

1125, 1128–29 (9th Cir. 2005) (stating that because mootness

is a jurisdictional issue it should be raised sua sponte).

Article III of the Constitution requires that “federal courts

confine themselves to deciding actual cases and

controversies.” Id. at 1128. “‘[I]t is not enough that there

may have been a live case or controversy when the case was

decided by the court whose judgment we are reviewing.’

Rather, Article III requires that a live controversy persist

throughout all stages of the litigation.” Id. at 1128–29

(quoting Burke v. Barnes, 479 U.S. 361, 363 (1987) (citation

omitted)).

When a plaintiff no longer wishes to engage in the

activity for which he initially sought declaratory or injunctive

relief, the requisite case or controversy is absent. Id. at 1129.

Several months after Mitchell commenced this action, SCC

began treating Mitchell with interferon and ribavirin. The

treatment was ineffective. Given the failure of the requested

treatment, Mitchell no longer has any need for the treatment

and there is no reasonable expectation that Mitchell will

request the same failed treatment again. As a result, we

conclude that Mitchell’s claims for injunctive and declaratory

relief are moot.

10 MITCHELL V. STATE OF WASHINGTON

C. Damages under 42 U.S.C. § 1983 and Qualified

Immunity

Mitchell’s remaining claims are claims for damages under

42 U.S.C. § 1983 against individual Defendants, Dr. Bell and

Cunningham, in their personal capacities. Government

officials enjoy qualified immunity from civil damages unless

their conduct violates “clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Thus, in determining whether qualified immunity applies to

Defendants, we must determine whether: (1) the facts

adduced constitute the violation of a constitutional right; and

(2) the constitutional right was clearly established at the time

of the alleged violation. Pearson v. Callahan, 555 U.S. 223,

232 (2009).

Mitchell asserts two constitutional violations. First, he

contends that Dr. Bell and Cunningham denied him

constitutionally adequate medical care in violation of the

Fourteenth Amendment. Second, he contends that Dr. Bell

and Cunningham violated his right to equal protection under

the Fourteenth Amendment by making a medical treatment

decision based on race.

1. Constitutionally Adequate Medical Care Under

the Fourteenth Amendment

“Involuntarily committed patients in state mental health

hospitals have a Fourteenth Amendment due process right to

be provided safe conditions by the hospital administrators

. . . . [W]hether a hospital administrator has violated a

patient’s constitutional rights is determined by whether the

administrator’s conduct diverges from that of a reasonable

MITCHELL V. STATE OF WASHINGTON 11

professional.” Ammons v. Wash. Dep’t. of Soc. & Health

Servs., 648 F.3d 1020, 1027 (9th Cir. 2011). In other words,

a decision, “if made by a professional, is presumptively valid;

liability may be imposed only when the decision by the

professional is such a substantial departure from accepted

professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base

the decision on such a judgment.” Youngberg v. Romeo,

457 U.S. 307, 323 (1982). This standard has been referred to

as the “Youngberg professional judgment standard.”

Ammons, 648 F.3d at 1027. The Youngberg standard differs

from the “deliberate indifference” standard used in Eighth

Amendment cruel and unusual punishment cases, in that

“[p]ersons who have been involuntarily committed are

entitled to more considerate treatment and conditions of

confinement than criminals whose conditions of confinement

are designed to punish.” Id. (quoting Youngberg, 457 U.S.

at 321–22) (internal quotation marks omitted).

Mitchell argues that Dr. Bell’s decision not to administer

interferon and ribavirin treatment violates the Youngberg

professional judgment standard. In support of this

argument, Mitchell presents several excerpts from

medical texts suggesting that administration of interferon

and ribavirin is the preferred treatment course for

Hepatitis C. These documents, however, contain guidelines

and recommendations, rather than specific standards of care.

None of the documents submitted by Mitchell suggests that

Dr. Bell’s treatment decision, based on the individualized

circumstances of Mitchell’s health, was unreasonable.

Furthermore, the fact that Dr. Priebe suggested, in 2005, that

future interferon and ribavirin treatment may be appropriate

is not sufficient to demonstrate that Dr. Bell’s decision

concluding otherwise in 2009 was unreasonable. As a result,

12 MITCHELL V. STATE OF WASHINGTON

we conclude that Mitchell has failed to present evidence

sufficient to rebut the Youngsberg professional judgment

standard. Consequently, we affirm the district court’s grant

of summary judgment in favor of Defendants on this claim.

2. Equal Protection

“[A]ny official action that treats a person differently on

account of his race or ethnic origin is inherently suspect.”

Fisher v. Univ. of Tex., 133 S.Ct. 2411, 2419 (2013)

(quoting Fullilove v. Klutznick, 448 U.S. 448, 523 (1980)

(Stewart, J., dissenting) (internal quotation marks omitted)).

Consequently, the general rule is that when a state actor

explicitly treats an individual differently on the basis of race,

strict scrutiny is applied. Id.; Johnson v. California, 543 U.S.

499, 505 (2005); Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 227 (1995). Under strict scrutiny, all racial

classifications imposed by the government must be “narrowly

tailored to further compelling government interests.” Fisher,

133 S.Ct. at 2419 (quoting Grutter v. Bollinger, 539 U.S. 306,

326 (2003) (internal quotation marks omitted)).

The Supreme Court has never considered whether strict

scrutiny applies to the use of race by a state actor in making

a medical treatment decision.4 Nor have we. First, we note

that the Supreme Court has “insisted on strict scrutiny in

every context, even for so-called ‘benign’ racial

classifications, such as race-conscious university admissions

policies, race-based preferences in government contracts, and

4

Although the Supreme Court has never directly addressed this issue,

members of the Court have in the past indicated that they believe strict

scrutiny should apply to race-targeted medical outreach programs. See

Bush v. Vera, 517 U.S. 952, 984 (1996).

MITCHELL V. STATE OF WASHINGTON 13

race-based districting intended to improve minority

representation.” Johnson, 543 U.S. at 505 (citations omitted).

The question is whether these reasons for applying strict

scrutiny should be applied in the medical context. We

conclude that they should because even medical and scientific

decisions are not immune from invidious and illegitimate

race-based motivations and purposes. Indeed, the lens under

which we examine the constitutionality of race-based medical

and scientific decisions becomes especially critical in light of

documented instances in which the federal government has

pursued reprehensible race-based actions in the name of

science and medicine. See, e.g., U.S. Public Health Service

Syphilis Study at Tuskegee, CENTERS FOR DISEASE CONTROL

AND PREVENTION, www.cdc.gov/tuskegee/index.html (last

visited July 22, 2015) (describing the government’s role in

the Tuskegee syphilis study withholding adequate treatment

from poor black men); Secret World War II Chemical

Experiments Tested Troops Based on Race, NPR,

www.npr.org/2015/06/22/415194765/u-s-troops-tested-by-

race-in-secret-world-war-ii-chemical-experiments (last

visited July 22, 2015) (describing government funded

program studying the effects of mustard gas and other

chemical agents on African-American, Japanese-American,

and Puerto Rican soldiers during World War II).

We also recognize that there are likely numerous

instances where the use of race as a factor in a medical

decision is benign and may even be beneficial. However,

“there is simply no way of determining what classifications

are ‘benign’ or ‘remedial’ and what classifications are in fact

motivated by illegitimate notions of racial inferiority or

simple racial politics.” Shaw v. Reno, 509 U.S. 630, 642–43

(1993) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469,

493 (1989) (internal quotation marks omitted)). Indeed,

14 MITCHELL V. STATE OF WASHINGTON

“[t]he point of carefully examining the interest asserted by the

government in support of a racial classification, and the

evidence offered to show that the classification is needed, is

precisely to distinguish legitimate from illegitimate uses of

race in governmental decisionmaking.” Adarand, 515 U.S.

at 228. As a result, courts apply strict scrutiny “in order to

‘smoke out’ illegitimate uses of race by assuring that

[government] is pursuing a goal important enough to warrant

[such] a highly suspect tool.” Johnson, 543 U.S. at 506

(quoting J.A. Croson Co., 488 U.S. at 493).

Turning to the facts of this case, we conclude that

Mitchell has set forth specific facts plausibly suggesting that

Dr. Bell5 employed an explicit racial classification sufficient

to trigger strict scrutiny. Mitchell states that when he

requested interferon and ribavirin treatment from Dr. Bell he

was told that treatment did not work on African Americans.

Dr. Szeibert’s declaration corroborates this allegation, stating

that “Dr. Bell rejected Mitchell’s request [for interferon and

ribavirin treatment], explaining to Mr. Mitchell that interferon

& ribavirin treatments for plaintiff’s Hepatitis C genotype . . .

had been largely unsuccessful on African American males

. . . .” Indeed, on appeal, Defendants concede that race was

a factor in Dr. Bell’s decision to deny Mitchell’s medication

request. Accepting these facts as true, as we must on

summary judgment, under strict scrutiny, Mitchell has

adduced sufficient facts to establish that Dr. Bell employed a

racial classification when he determined not to recommend

Mitchell for interferon and ribavirin treatment.

5

Because Mitchell has alleged no facts suggesting that Cunningham

knew of the potential equal protection violations, we affirm the grant of

summary judgment for this claim as to Cunningham. As a result, the

remainder of our analysis focuses solely on the claim against Dr. Bell.

MITCHELL V. STATE OF WASHINGTON 15

Defendants suggest that strict scrutiny should not apply

for two reasons: (1) Dr. Bell’s consideration of the race-

related success rate of interferon and ribavirin treatment “is

not synonymous with a distinction based solely on race,”

because there may be a different genotype of the disease that

would be responsive to treatment in the African-American

male population; (2) race-related success of the treatment was

not the only factor considered by Dr. Bell, and thus was not

necessarily determinative of the treatment decision. Under

strict scrutiny, these arguments are unavailing. First, the fact

that race is a factor in a government decision is sufficient to

trigger strict scrutiny. See Fisher, 133 S.Ct. at 2419. As a

result, the hypothetical presented by Defendants suggesting

that if Mitchell had a different genotype of Hepatitis C, race

may not have factored into the decision, is irrelevant.

Second, because Mitchell has shown that Dr. Bell explicitly

factored Mitchell’s race into his treatment decision, it was not

necessary to show that “but for” Dr. Bell’s consideration of

race, the decision to withhold the requested drugs would have

occurred. “When the government expressly classifies persons

on the bases of race or national origin . . . its action is

‘immediately suspect’ . . . . A plaintiff in such a lawsuit need

not make an extrinsic showing of discriminatory animus or a

discriminatory effect to trigger strict scrutiny.” Jana-Rock

Constr., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195,

204–05 (2d Cir. 2006); see also Walker v. Gomez, 370 F.3d

969, 974 (9th Cir. 2004) (stating that the plaintiff was not

required to show discriminatory intent because the state

admitted it considered race when it assigned inmates to a

cell).

Because we hold that strict scrutiny applies, Dr. Bell is

required to demonstrate that the use of race in his medical

decision was narrowly tailored to achieve a compelling

16 MITCHELL V. STATE OF WASHINGTON

government interest. Adarand, 515 U.S. at 227. It is not

difficult to imagine the existence of a compelling justification

in the context of medical treatment. See Erik Lillquist &

Charles A. Sullivan, The Law and Genetics of Racial

Profiling in Medicine, 39 HARV. C.R.-C.L.L. REV. 391, 445

(2004) (suggesting that sufficient empirical data to treat

African-Americans differently than whites may constitute a

compelling government interest); Scarlett S. Lin & Jennifer

L. Kelsey, Use of Race and Ethnicity in Epidemiologic

Research: Concepts, Methodological Issues, and Suggestions

for Research, 22 EPIDEMIOLOGIC REV. 187, 187 (2000)

(emphasizing the importance of the use of race and ethnicity

in medical research). Because, however, Dr. Bell failed to

offer any compelling justification for the racial classification,

let alone a justification that was narrowly tailored; instead,

arguing only that Mitchell’s equal protection claim fails

because race was not the “primary” consideration in denying

treatment, Dr. Bell failed to meet his burden under the strict

scrutiny standard. Thus, the district court erred in concluding

that no constitutional violation occurred. See Guru Nanak

Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 981

(9th Cir. 2006); Krislov v. Rednour, 226 F.3d 851, 866 n.7

(7th Cir. 2000).6

6

The concurring opinion agrees that strict scrutiny should be applied,

Concur. Op. at 24, but argues that this standard was met because “Dr. Bell

successfully articulated a compelling State interest in the health of his

patient when he explained that he refused to prescribe treatment because

he thought it would do more harm than good.” Id. at 27. While this may

be sufficient as a Hippocratic oath-like aspirational goal, it simply does

not pass muster as a sufficiently particularized showing under the strict

scrutiny standard.

MITCHELL V. STATE OF WASHINGTON 17

3. Qualified Immunity – Clearly Established

Despite the fact that we hold that the violation of a

constitutional right occurred, Dr. Bell is entitled to qualified

immunity if it was not “clearly established” that his actions

would violate Mitchell’s constitutional rights. 7 Pearson,

555 U.S. at 232. At the time of Dr. Bell’s actions, it was

clear that the Fourteenth Amendment requires all racial

classifications to survive strict scrutiny. Smith v. Univ. of

Wash., Law School, 233 F.3d 1188, 1196–97 (9th Cir. 2000);

Rudebusch v. Hughes, 313 F.3d 506, 518 (9th Cir. 2002).

Furthermore, the right of a ward of the state to be free from

racial discrimination was clearly established. Johnson,

543 U.S. at 512.

However, “[i]t is insufficient that the broad principle

underlying a right is well-established.” Walker, 370 F.3d at

978. “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Id. (quoting Saucier v. Katz,

533 U.S. 194, 202 (2001) (internal quotation marks omitted)).

7

The concurring opinion notes that, under Pearson, “we are not required

to consider the question of” a constitutional violation. Concur. Op. at 20.

But Pearson clearly authorized us to address either inquiry first. See

Pearson, 555 U.S. at 236 (“[W]e conclude that, while the sequence set

forth [in Saucier v. Katz, 533 U.S. 194 (2001)] is often appropriate, it

should no longer be regarded as mandatory. The judges of the district

courts and courts of appeals should be permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the

particular case at hand.”). We first address the constitutional violation

question for clarity, particularly because the district court addressed it and

held that there was no constitutional violation.

18 MITCHELL V. STATE OF WASHINGTON

“To be clearly established, a right must be sufficiently clear

that every reasonable official would have understood that

what he is doing violates that right.” Taylor v. Barkes, 135 S.

Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S.

Ct. 2088, 2093 (2012) (internal quotation marks omitted));

see also Anderson v. Creighton, 483 U.S. 635, 640 (1987)

(“The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.”). Mitchell “has not brought to our

attention, and our independent research does not reveal, case

law involving the particular circumstances presented by this

case.” Walker, 370 F.3d at 977–78. Here, the “particular

circumstances” are the use of race-related success-of-

treatment data as a factor in making a medical treatment

decision. As a result, it was not clearly established that a

reasonable official would understand that the use of race-

related success-of-treatment data as a factor in a medical

treatment decision would be unconstitutional. Dr. Bell is

therefore entitled to qualified immunity.

IV.

CONCLUSION

For the reasons set forth above, the district court’s grant

of summary judgment in favor of Defendants is

AFFIRMED.

MITCHELL V. STATE OF WASHINGTON 19

CLIFTON, Circuit Judge, concurring in part and concurring

in the judgment:

One of the primary teachings of the Hippocratic School

is embodied in the maxim “first do no harm.” The phrase

serves as a guiding principle for physicians who are debating

the use of an intervention that carries an obvious risk of harm

but a less certain chance of benefit. In this case, Dr. Thomas

Bell refused to prescribe a course of interferon and ribavirin

therapy to treat George Mitchell’s Hepatitis C because he

determined that the treatment was more likely to harm

Mitchell than cure him. The primary basis for Dr. Bell’s

treatment decision was that the progression of Mitchell’s

Hepatitis C had not advanced to the point where the toxicities

of the treatment were justified. But Dr. Bell also considered

that, because of Mitchell’s race, he was far less likely to be

cured.

This court has never addressed whether the Constitution

forbids a doctor from considering credible scientific evidence

that individuals of a certain race respond poorly to a

particular treatment. Nor have we addressed what standard

of scrutiny would be used to evaluate such a claim. We do

not need to address those questions in order to resolve this

case, and I would not do so.

I agree with the conclusions of the majority opinion that

the Eleventh Amendment does not bar Mitchell’s claim for

damages against the Defendants in their individual capacities,

that his claims for injunctive and declaratory relief are moot,

and that the summary judgment dismissing his claims for

damages against Kelly Cunningham was appropriate and

should be affirmed. I join the portions of the majority

opinion that state and explain those conclusions. I also agree

20 MITCHELL V. STATE OF WASHINGTON

that Dr. Bell is entitled to qualified immunity on the claim for

damages against him and join the portion of the majority

opinion that affirms the summary judgment in his favor. That

is enough to conclude the case.

The majority opinion goes on to discuss the question of

whether Dr. Bell violated Mitchell’s constitutional rights and

concludes that on that question summary judgment was not

appropriate. It is that portion of the case that raises the

difficult issues identified above. The Supreme Court has

made clear that we are not required to consider the question

of whether there has been a violation of plaintiff’s

constitutional rights if the case can be resolved, as this one

has been, on the ground that the constitutional right at issue

was not clearly established at the time. Pearson v. Callahan,

555 U.S. 223, 236 (2009).

Taking up that question, as the majority opinion does, I

ultimately agree with the majority’s determination that strict

scrutiny should be applied in these circumstances, though not

without some hesitation. I would, however, hold that Dr.

Bell’s limited consideration of Mitchell’s race was narrowly

tailored to further the State’s compelling interest in

preserving the health of the patient committed to its custody,

and thus, I would conclude that Mitchell’s constitutional

rights were not violated. I acknowledge that the argument

presented by the Defendants’ counsel devoted little attention

to that issue. The majority opinion supports its conclusion

with the observation, at 16, that Dr. Bell failed to offer any

compelling or narrowly tailored justification for the racial

classification at issue here, and that is an accurate assessment.

The justification for the treatment is apparent, however, and

our failure to recognize it may do mischief when a similar

case arises in the future. The strict scrutiny standard

MITCHELL V. STATE OF WASHINGTON 21

intentionally sets a very high bar, and the majority opinion

may leave the impression that medical judgment does not

provide sufficient justification.

Because insufficient attention has been given to this issue

by the parties, I would prefer that we resolve this case without

getting into the issue of whether Mitchell’s constitutional

right was violated. We should follow the example of the

physicians’ maxim – do no harm – by leaving that question

for another day. As the majority has elected to address that

question, though, I must note my disagreement with its

conclusion that Dr. Bell’s treatment was not sufficiently

justified.

I. Background

A. Hepatitis C Treatment Standards

Hepatitis C is a viral liver disease with effects that range

in severity from short-term illness to cirrhosis and liver

cancer. “Until recently, hepatitis C treatment was based on

therapy with interferon and ribavirin, which required weekly

injections for 48 weeks.” See World Health Organization,

Hepatitis C (2015).1 However, the treatment “caused

frequent and sometimes life-threatening adverse reactions”

that deterred many patients from completing therapy. Id.

Despite these rigors, it “is well known that many patients

will not be cured by the treatment, and that patients of

European ancestry have a significantly higher probability of

being cured than patients of African ancestry.” Dongliang

Ge, et al., Genetic Variation in IL28B Predicts Hepatitis C

1

http://who.int/mediacentre/factsheets/fs164/en.

22 MITCHELL V. STATE OF WASHINGTON

Treatment-Induced Viral Clearance, 461 Nature 399 (2009).

Part of the reason for the divergence is that African

Americans are much less likely to inherit a polymorphism

near the IL28B gene that helps the liver eliminate the

Hepatitis C virus. See id. As a result, physicians must

consider this ethnic disparity to accurately assess the potential

efficacy of the treatment in African American patients.

The standard of care for determining whether to prescribe

interferon and ribavirin is individualized and multi-factoral.

It requires balancing “(1) the severity of liver disease, (2) the

potential of serious side effects, (3) the likelihood of

treatment response, and (4) the presence of comorbid

conditions.” See Doris B. Strader, et al., Diagnosis,

Management, and Treatment of Hepatitis C, 39 Hepatology

1147, 1155 (2004) (numbering added). With respect to the

severity of the disease, “treatment is indicated in those with

more-than-portal fibrosis,” which means that liver damage

has progressed to a moderate grade. Id. The likelihood of a

treatment response is indicated by the genotype of Hepatitis

C that the patient has been infected with and the patient’s

viral load. Id. at 1153 (stating that individuals with Hepatitis

C genotype 1 and individuals with high viral loads are

substantially less likely to achieve a sustained virologic

response). In addition, weight influences outcomes because

heavier individuals require higher dosages of medicine, and

thus, are more likely to experience prohibitive side effects.

Finally, race is a significant predictor of success, and it

complicates treatment decisions for African Americans

because the high toxicities of the treatment must be weighed

against a more fractional chance of a sustained virologic

response.

MITCHELL V. STATE OF WASHINGTON 23

B. Mitchell’s Treatment History

Mitchell is a sexually violent predator who resides at a

special commitment center in Washington. He was first

diagnosed with Hepatitis C two years prior to his civil

commitment. In 2005, Mitchell consulted Dr. Michael Priebe

regarding Hepatitis C treatment options, including interferon

and ribavirin therapy. Mitchell understood that the treatment

was weight based, and agreed to postpone treatment until he

could lose weight.

In 2009, Mitchell met with Dr. Bell and requested a

referral for interferon and ribavirin therapy because he

believed that he had lost the weight necessary to begin

treatment. Mitchell also explained that he had recently

remarried and that he did not want to infect his wife. Dr. Bell

informed Mitchell that he only had a fractional chance of

achieving a remission-like state from the treatment because

of his genotype of Hepatitis C and because of his African

ancestry. Dr. Bell further explained that even if the treatment

were successful, Mitchell would still have Hepatitis C and

could still infect his wife. Dr. Bell then reviewed Mitchell’s

most recent liver biopsy, which showed minimal fibrotic

advancement. He concluded that Mitchell’s “Hepatitis C had

not progressed to a level that would justify the physically

demanding side effects” of the treatment, and refused to refer

Mitchell for treatment.

Sometime thereafter, in 2012, Mitchell was placed on

interferon and ribavirin therapy. As the majority opinion

notes, at 5, that treatment was unsuccessful. Mitchell

responded poorly and did not achieve a sustained virologic

response.

24 MITCHELL V. STATE OF WASHINGTON

II. Discussion

A. The Strict Scrutiny Standard

The Supreme Court has held that “all racial

classifications, imposed by whatever federal, state, or local

governmental actor, must be analyzed by a reviewing court

under strict scrutiny.” Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 227, 236 (1995) (internal quotation marks and

citation omitted). That is “[b]ecause racial characteristics so

seldom provide a relevant basis for disparate treatment, and

because classifications based on race are potentially so

harmful to the entire body politic.” Id.

We have never previously applied strict scrutiny to the

medical treatment decisions of prison doctors. Though racial

classifications based on race “seldom” provide a relevant

basis for disparate treatment, “seldom” does not mean

“never.” It seems to me indisputable, based on the scientific

evidence referenced above, that medicine is a place where the

“seldom” sometimes occurs. Our history is scarred with

reprehensible race-based actions, including the medical and

scientific decisions referred to in the majority opinion, at 13,

and I condemn those actions, but I do not see how the

medical decision in this case can fairly be analogized to

those. Treatment was not withheld from those victims based

on a professional judgment, based on medical science, that

the treatment would do more harm than good.

Nonetheless, the Supreme Court has “insisted on strict

scrutiny in every context, even for so-called ‘benign’ racial

classifications.” See Johnson v. California, 543 U.S. 499,

505 (2005). Someday the Court may encounter a case where

medical science presents the “seldom” situation and have the

MITCHELL V. STATE OF WASHINGTON 25

opportunity to consider whether strict scrutiny should apply

in that circumstance. Unless and until it does, I agree with

the majority opinion that the strict scrutiny standard applies

here.

A decision to apply the strict scrutiny standard is

sometimes viewed as the end of the case because the bar is set

too high to surmount, but that is not how the doctrine is

supposed to be applied. “Strict scrutiny is not strict in theory,

but fatal in fact.” Grutter v. Bollinger, 539 U.S. 306, 326

(2003) (internal quotation marks and citation omitted).

Indeed, its application “says nothing about the ultimate

validity of any particular law; that determination is the job of

the court applying strict scrutiny.” Adarand, 515 U.S. at 230.

The strict scrutiny standard is better understood as “a

framework for carefully examining the importance and the

sincerity of the reasons advanced by the governmental

decisionmaker for the use of race in that particular context.”

Grutter, 539 U.S. at 327. “Context matters when reviewing

race-based governmental action under the Equal Protection

Clause.” Id. The “fundamental purpose” of strict scrutiny is

to “take ‘relevant differences’ into account.” Adarand,

515 U.S. at 228. “Prisons are dangerous places, and the

special circumstances they present may justify racial

classifications in some contexts.” Johnson, 543 U.S. at 515.

The danger of prisons might not be a relevant factor here, but

the institutional setting might be. In the nuanced context of

correctional medicine, the court must perform a searching and

careful analysis that takes the relevant differences into

account.

26 MITCHELL V. STATE OF WASHINGTON

B. Defendants’ Compelling Interest

“[I]n some situations a State’s interest in facilitating the

health care of its citizens is sufficiently compelling to support

the use of a suspect classification.” Regents of the University

of California, v. Bakke, 438 U.S. 265, 310 (1978); see also

Roe v. Wade, 410 U.S. 113, 154 (1973) (stating that a State

may have compelling interests “in safeguarding health, [and]

in maintaining medical standards”). Indeed, individual health

and well-being have been recognized as a compelling

governmental interest in a variety of contexts, including

prisons. See, e.g., Warsoldier v. Woodford, 418 F.3d 989,

996–98 (9th Cir. 2005) (stating that prison officials have a

compelling interest in preserving inmate health); Goehring v.

Brophy, 94 F.3d 1294, 1300 (9th Cir. 1996) (holding that a

“University’s interest in the health and well-being of its

students . . . is compelling”).

This case implicates the State’s compelling interest in

safeguarding the health of a civilly committed individual. As

Dr. Bell explained, he did not recommend Mitchell for

interferon and ribavirin treatment because Mitchell’s liver

damage had not progressed to a level that would justify the

physically demanding side effects of the treatment. Dr. Bell

also noted that Mitchell had a fractional chance of achieving

a remission-like state. To the extent that Dr. Bell considered

Mitchell’s race, it was only to inform his assessment of the

likelihood of successful treatment. That narrow consideration

was necessary to a fully informed treatment decision, and

therefore, was necessary to further the State’s compelling

interest in preserving Mitchell’s health.

This case also implicates the State’s compelling interest

in maintaining appropriate medical standards because, as

MITCHELL V. STATE OF WASHINGTON 27

noted above, a fully informed assessment of the potential

efficacy of interferon and ribavirin treatment requires the

consideration of race. Maintaining medical standards is a

compelling interest for physicians because they may be

subject to professional and legal sanctions if they make

substandard treatment decisions. It is equally compelling for

the State, which has an obligation to retain quality physicians

who are capable of providing adequate medical care. If state-

employed doctors are required to deliver substandard care or

to prescribe treatments that they believe are inappropriate,

those doctors may either refuse to work for the State or be

exposed to professional and legal liabilities. As a result, the

State’s interest in maintaining medical standards has a direct

effect on its compelling interest in preserving inmate health.

The majority opinion holds, at 16, that Dr. Bell violated

Mitchell’s constitutional rights because he failed to offer any

compelling justification for his statement that interferon and

ribavirin treatment is less effective in African Americans.

But this opinion is the first instance in which our court has

applied strict scrutiny to the treating decision of a correctional

physician. Given the novelty of this case, I believe that Dr.

Bell successfully articulated a compelling State interest in the

health of his patient when he explained that he refused to

prescribe treatment because he thought it would do more

harm than good. Mitchell presented no evidence that Dr. Bell

acted based on any racial animus or with an intent to

discriminate against Mitchell based on race. Dr. Bell’s

attorney might not have uttered the magic words “compelling

state interest,” but we know enough to conclude that Dr. Bell

did not violate Mitchell’s constitutional rights.

The majority opinion does not disagree with either Dr.

Bell’s explanation or my observation that there was no

28 MITCHELL V. STATE OF WASHINGTON

evidence of racial animus. It simply states, at 16 n. 6, that Dr.

Bell’s explanation is not enough to satisfy the strict scrutiny

standard. Why not? The majority opinion does not say.

Applying that standard in a way that requires a doctor to do

more harm than good violates more than “a Hippocratic oath-

like aspirational goal.” Id. It violates good sense.

C. Dr. Bell’s Consideration of Race was Narrowly

Tailored

“When race-based action is necessary to further a

compelling interest, such action is within constitutional

constraints if it satisfies the ‘narrow tailoring’ test.”

Adarand, 515 U.S. at 237. “The purpose of the narrow

tailoring requirement is to ensure that the means chosen ‘fit’

th[e] compelling goal so closely that there is little or no

possibility that the motive for the classification was

illegitimate racial prejudice or stereotype.” Grutter, 539 U.S.

at 333 (internal quotation marks and citation omitted). The

court must carefully analyze “the importance and the

sincerity of the reasons advanced by the governmental

decisionmaker for the use of race in that particular context.”

Id. at 327. In this case, Dr. Bell’s consideration of race was

narrowly tailored. In the words of Grutter, “there is little or

no possibility that the motive for the classification was

illegitimate racial prejudice or stereotype.” Id. at 333.

As an initial matter, Dr. Bell’s decision to deny Mitchell’s

treatment request was not made based on a general policy of

excluding African Americans from interferon and ribavirin

therapy. Rather, Dr. Bell performed an individualized and

multi-factoral assessment of Mitchell’s objective profile. See

Grutter, 539 U.S. at 334 (holding that a race-sensitive

admissions program was narrowly tailored because the

MITCHELL V. STATE OF WASHINGTON 29

consideration of race was merely one factor in the decision-

making process and individualized consideration was given

to each applicant). Dr. Bell considered that Mitchell had a

strain of Hepatitis C that was less likely to respond to

interferon and ribavirin by nearly a 2:1 ratio. Dr. Bell also

gave great weight to Mitchell’s most recent liver biopsy,

which showed minimal fibrotic advancement. Dr. Bell did

explain to Mitchell that his African ancestry reduced his

chance of achieving a sustained virologic response, but he did

not refuse to prescribe treatment on that basis. Rather, Dr.

Bell indicated that if Mitchell’s liver condition had been

worse, he would have recommended Mitchell for treatment.

Mitchell acknowledged that other African American inmates

with his genotype of Hepatitis C were receiving interferon

and ribavirin therapy, which suggests that treatment decisions

were typically made on an individualized basis. In sum,

nothing in the record suggests that Dr. Bell’s decision was

based on invidious discrimination or illegitimate motive.

And, with the benefit of hindsight, we now know that Dr.

Bell’s professional judgment was correct – when Mitchell

received the treatment he sought, it was unsuccessful.

The narrowness of Dr. Bell’s decision is further

demonstrated by how closely it adheres to the standard of

care used to evaluate a patient for potential interferon and

ribavirin therapy. As noted above, at 22, physicians are

supposed to balance the severity of liver disease, the potential

of serious side effects, the likelihood of treatment response,

and the presence of comorbid conditions. That is exactly

what Dr. Bell did. Dr. Bell’s consideration of race was based

on credible, peer-reviewed studies, and it helped him make a

fully informed assessment of “the likelihood of a treatment

response.” Strader, supra, at 1155. Indeed, had Dr. Bell

failed to consider Michell’s race, his medical assessment

30 MITCHELL V. STATE OF WASHINGTON

would have been under-informed and would have fallen

below an acceptable standard of care.

The relevant standard of care is a unique characteristic of

the medical context that must be taken into account for

purposes of narrow tailoring. See Grutter, 539 U.S. at 327

(“Context matters when reviewing race-based governmental

action.”). Physicians are constrained by professional and

legal regimes that require them to meet or exceed the relevant

standard of care, and they may suffer significant sanctions if

they do not. See Pickup v. Brown, 740 F.3d 1208, 1228 (9th

Cir. 2013) (“[D]octors are routinely held liable for giving

negligent medical advice to their patients, without serious

suggestion that the First Amendment protects their right to

give advice that is not consistent with the accepted standard

of care.”). The Equal Protection Clause should not be

interpreted in a manner that compels or motivates a physician

to prescribe a course of treatment that he or she believes is

not medically warranted. In this instance, Dr. Bell’s

compliance with a scientifically justified standard of care was

a narrowly tailored means of making an informed treatment

decision regarding an individual whose health had become

the state’s responsibility.

The institutional context presents additional challenges

that must also be taken into account. Most significantly, the

prevalence of Hepatitis C infection in prison is far higher than

it is in the general population, and approximately 30% of

individuals with Hepatitis C pass through the correctional

system in a given year. See Kara Chew, et al., Treatment

Outcomes with Pegylated Interferon and Ribavirin for Male

Prisoners with Chronic Hepatitis C, 43 J. Clinical

Gastroenterology 686 (2009). The high rate of Hepatitis C

coupled with the astronomical cost of therapy has forced state

MITCHELL V. STATE OF WASHINGTON 31

institutions to prioritize treating those individuals whose

condition has advanced to the point of medical necessity. See

Lara Strick, Treatment of Hepatitis C in a Correctional

Setting, Hepatitis C Online (Dec. 11, 2015). As a result,

physicians in those institutions must respond to the challenge

of dealing with inmates who want to be treated but fail to

meet the guidelines. Adhering to guidelines that prioritize

treatment for individuals with significant disease progression

is a narrowly tailored way to meet that challenge. Cf. Peralta

v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)

(stating that it is appropriate to consider the resources

available to a prison official who lacks authority over

budgeting decisions when determining whether the official is

liable for money damages for deliberate indifference to the

serious medical needs of a prisoner).

The majority opinion disputes none of this, yet

nonetheless concludes that Dr. Bell violated Mitchell’s

constitutional rights. Grutter instructs us to “carefully

examin[e] the importance and the sincerity of the reasons” for

considering race in making a decision. Grutter, 539 U.S. at

327. The majority opinion does not. Its conclusion – that Dr.

Bell’s exercise of professional judgment based on scientific

evidence, without racial animus, nonetheless constituted

racial discrimination in violation of the Constitution – is both

inconsistent with precedent and detached from reality.

D. Implications of the Majority Opinion

I fear that the majority opinion creates significant

uncertainty regarding the extent to which doctors can

consider ethnic and racial differences in making judgments as

to medical treatment. Is a doctor who is treating an

institutionalized African American patient with Hepatitis C

32 MITCHELL V. STATE OF WASHINGTON

genotype 1 required to pretend that the likelihood of success

with interferon and ribavirin therapy is a race-blind 50

percent if in actuality it is only 20 percent?

The majority opinion also creates uncertainty regarding

the extent to which doctors may adhere to recommended

medication dosages that vary based on race. For example,

ethnic differences in cardiovascular drug response require

physicians to base their dosage determinations on race to

minimize dangerous side effects. See, e.g, Julie Johnson,

Ethnic Differences in Cardiovascular Drug Response,

118 Circulation 1383 (2008). Are cardiologists supposed to

prescribe dosages in a race-blind manner and at potential risk

to their patients?

Doctors are put in an unenviable position if they must

ignore critical “risk of harm” information when treating their

patients. We should not require a physician “to perform a

prefrontal lobotomy on himself.” Fleming Sales Co., Inc. v.

Bailey, 611 F.Supp. 507, 514 (D. Ill. 1985).

III. Conclusion

I concur in the judgment affirming the district court’s

summary judgment in favor of Defendants. I agree with the

specific conclusions of the majority opinion that the Eleventh

Amendment does not bar Mitchell’s claim for damages

against the Defendants in their individual capacities, that his

claims for injunctive and declaratory relief are moot, that the

summary judgment dismissing his claims for damages against

Kelly Cunningham was appropriate, and that Dr. Bell is

entitled to qualified immunity on the claim for damages

against him. I would not take up the question of whether

Mitchell’s constitutional rights were violated, but if required

MITCHELL V. STATE OF WASHINGTON 33

to do so, conclude that they were not. I thus concur in part

with the majority opinion and concur in full with its

judgment.