Fleet Hamby v. Steven Hammond

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLEET C. HAMBY, No. 15-35283

Plaintiff-Appellant,

D.C. No.

v. 3:14-cv-05065-

RBL

M.D. STEVEN HAMMOND, Chief

Medical Officer, Washington

Department of Corrections, in his OPINION

individual and official capacities;

M.D. SARA SMITH, Former Facility

Medical Director, Stafford Creek

Corrections Center, in her individual

capacity; BERNARD WARNER,

Secretary, Washington Department

of Corrections, in his individual and

official capacities,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

February 2, 2016—Seattle, Washington

Filed May 2, 2016

2 HAMBY V. HAMMOND

Before: Alex Kozinski, Diarmuid F. O’Scannlain,

and Ronald M. Gould, Circuit Judges.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Gould

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment

in favor of prison officials in an action brought by a prison

inmate pursuant to 42 U.S.C. § 1983 alleging that officials

were deliberately indifferent to his serious medical needs

when they refused to grant his request for hernia surgery.

Plaintiff received surgery for his umbilical hernia after the

district court granted his motion for a preliminary injunction

and ordered prison officials to refer him to a surgeon for

evaluation and possible surgical treatment. After receiving

surgery, plaintiff sought damages for the pain he allegedly

suffered because of the officials’ refusal to authorize surgery

prior to litigation. The panel held that the officials were

entitled to qualified immunity because in light of existing

precedent and the specific facts of this case, it was at least

debatable that they complied with the Eighth Amendment.

The panel determined that to the extent that the officials

played any role in the decision to deny surgery, the record

made clear that they did so based on legitimate medical

*

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

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

HAMBY V. HAMMOND 3

opinions that have often been held reasonable under the

Eighth Amendment.

The panel held that the district court properly denied

injunctive relief relating to plaintiff’s potential inguinal

hernia. The panel determined that plaintiff had not pointed to

evidence which suggested that defendants’ decision to forgo

surgery for the potential inguinal hernia was medically

unacceptable under the circumstances and made in conscious

disregard of an excessive risk to plaintiff’s health.

Concurring in part and dissenting in part, Judge Gould

concurred only with the majority opinion’s result regarding

the denial of injunctive relief pertaining to plaintiff’s

potential inguinal hernia, and dissented from the rest of the

majority opinion. Judge Gould stated that there was a

genuine issue of material fact on whether the course of

treatment the doctors chose in treating plaintiff’s umbilical

hernia was medically unacceptable under the circumstances,

and whether they chose this course in conscious disregard of

an excessive risk to plaintiff’s health.

COUNSEL

Hank Balson, Public Interest Law Group, PLLC, Seattle,

Washington argued the cause and filed the briefs for the

plaintiff-appellant.

Timothy J. Feulner, Assistant Attorney General for the State

of Washington, Olympia, Washington, argued the cause and

filed the brief for the defendants-appellees. With him on the

brief was Robert W. Ferguson, Attorney General for the State

of Washington, Olympia, Washington.

4 HAMBY V. HAMMOND

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether state prison officials can be

made to pay damages to a prisoner who claims that they

violated his Eighth Amendment rights when they refused to

grant his request for hernia surgery.

I

Fleet C. Hamby is an inmate at the Stafford Creek

Corrections Center in Aberdeen, Washington. In April 2012,

Hamby fell off of a ladder while working his prison job as an

electrician’s assistant. A prison medical professional

diagnosed him as having an umbilical hernia, meaning that a

part of his intestine or abdominal fat had pushed through a

weak spot in his abdominal wall, causing a bulge in his belly.

Hamby’s umbilical hernia was described as “small” and

“easily reducible,” which means that Hamby could push the

hernia back into his abdomen by applying manual pressure or

by lying down. Hamby was counseled on how to push the

hernia back in if it popped out, and was also given a rib belt

designed to keep the hernia in.

About two weeks later, Hamby saw another prison

medical professional who noted that Hamby was in pain and

had some abdominal tenderness and swelling, but could walk

around without difficulty. Hamby was prescribed

medication—which he was unable to take due to his other

medical conditions—and was advised to continue using the

rib belt for support.

HAMBY V. HAMMOND 5

By the end of 2012, Hamby was seen at least ten times by

a handful of prison medical personnel. Hamby reported that

he experienced sharp pains while sleeping, using the

bathroom, and when he tried to sit for long periods. In June

of that year, Hamby formally requested surgical repair for his

hernia. But on July 19, Hamby rated his pain a three out of

ten, and when he renewed his request for surgery in August

his request was denied, with prison medical officials telling

him that his “condition [would] continue to be monitored as

needed by Health Services.” Hamby was examined again on

November 16, and his hernia was confirmed to be still “easily

reducible.” Hamby continued using the hernia belt in

addition to a variety of prostate medications.

In March 2013, Hamby was seen by a doctor at a different

prison. This doctor reported that Hamby was able to “make

it to chow hall and back,” and that he could use the bathroom.

Hamby advised the doctor that his umbilical hernia

“interfered with [his] sleep,” made “sitting down . . .

difficult,” and generated “random pain.” This doctor advised

that surgery was not medically necessary at that time.

In late August 2013, Hamby’s attorney sent a letter to Dr.

G. Steven Hammond, the Chief Medical Officer for the

Washington State Department of Corrections; Dr. Sara S.

Smith, the Facility Medical Director at the Stafford Creek

Corrections Center; and Bernard Warner, the Secretary of the

Washington Department of Corrections (“prison officials”),

asking them to reconsider Hamby’s need for surgical

treatment. Shortly thereafter, prison medical personnel

presented Hamby’s case to the prison’s Care Review

Committee (“CRC”), a group of medical professionals that

decides whether proposed health care treatments are

medically necessary under the prison’s Offender Health

6 HAMBY V. HAMMOND

Plan.1 Drs. Hammond and Smith were voting members, with

Dr. Hammond also serving as committee chair. The CRC

considered whether to authorize a surgical consultation, and

possible surgical repair, for Hamby’s umbilical hernia. The

physician’s assistant who presented the request for Hamby’s

surgery described Hamby’s hernia as “easily reducible” and

noted that although Hamby was in pain, he had been going to

meals and his activities of daily living were not impaired.2

The CRC denied the request, deeming surgery not medically

necessary at that time, and recommended continued

monitoring of Hamby’s condition.

Hamby was subsequently examined by a physician’s

assistant who had treated him several times in the past. The

physician’s assistant noted that Hamby was attending classes

and that his “activities of daily living were unaffected,” and

described his hernia as “minimal,” and recommended

monitoring. Hamby was later seen by a Department of

Corrections urologist, who likewise opined that surgery was

not medically necessary because Hamby “did not have

continual pain and was still performing his ADLs without

incident.”

1

The Offender Health Plan defines “medically necessary care” as care

that meets one of several criteria, including “[r]educ[ing] intractable pain”

or “[p]revent[ing] significant deterioration of [activities of daily living].”

2

“Activities of daily living” (“ADLs”) are “activities related to personal

care and include bathing or showering, dressing, getting in or out of bed

or a chair, using the toilet, eating, and walking or assisted mobility

sufficient to accomplish these activities.”

HAMBY V. HAMMOND 7

A

Hamby filed this lawsuit under 42 U.S.C. § 1983 in

January 2014, against Dr. Hammond, Dr. Smith, and

Secretary Warner. Hamby sued each in his personal capacity,

and he sued Dr. Hammond and Secretary Warner in their

official capacities as well. He claimed that the prison

officials exhibited deliberate indifference to his serious

medical needs, thereby violating his Eighth Amendment right

to be free from cruel and unusual punishment. As of May

2014, when he moved for a preliminary injunction, Hamby

rated the pain from his umbilical hernia “as a 5 on a scale of

1–10.” In August 2014, the district court granted Hamby’s

motion for a preliminary injunction, ordering the prison

officials to refer him to a surgeon for evaluation and to

authorize surgical treatment if the surgeon so advised.

Hamby received his hoped-for surgery, and his umbilical

hernia was repaired on October 13, 2014.

B

After receiving surgery on his umbilical hernia, Hamby

continued to press his case, seeking damages for the pain he

allegedly suffered because of the prison officials’ refusal to

authorize surgery prior to litigation. On cross-motions for

summary judgment, the district court ruled for the prison

officials, holding that they had not in fact been deliberately

indifferent to Hamby’s serious medical needs—and so they

had not violated Hamby’s Eighth Amendment rights, after

all—but that even if they had, qualified immunity would

shield them from having to pay damages.

8 HAMBY V. HAMMOND

C

In addition to the ordeal surrounding his umbilical hernia,

Hamby complains of ailments triggered by a particularly

harsh sneeze that left him reeling in October 2012. This

sneeze may or may not have caused an inguinal

hernia—which occurs in the groin area, when fatty or

intestinal tissue pushes through a weak spot in the abdominal

wall—but Hamby was never diagnosed as having an inguinal

hernia. Nonetheless, in response, prison medical personnel

gave him a jockstrap to reduce the pain.

In May 2014, Hamby declared that “[t]he pain from the

inguinal hernia had subsided for several months,” although it

had “recently reappeared” and was “intermittent, ranging

between 0 and 5.” In September 2014—at the time Hamby

moved for summary judgment—he declared that “the pain

related to [his] possible inguinal hernia [had] subsided,” and

was “currently at a level he can tolerate.” Still, Hamby

requested a permanent injunction requiring the prison

officials “to diagnose and treat his possible inguinal hernia

should the pain associated with that condition once again

become intolerable.”

The district court denied Hamby’s request for a

permanent injunction and granted summary judgment to the

prison officials, ruling that their conduct in response to

Hamby’s possible inguinal hernia did not violate Hamby’s

rights under the Eighth Amendment. Hamby timely appealed

the district court’s decision.

HAMBY V. HAMMOND 9

II

We review de novo the district court’s ruling on cross-

motions for summary judgment. Trunk v. City of San Diego,

629 F.3d 1099, 1105 (9th Cir. 2011). We must view the

evidence in the light most favorable to the non-moving party,

and then ask whether there is any “genuine dispute as to any

material fact” under the governing substantive law. Fed. R.

Civ. P. 56(a). “As to materiality,” the Supreme Court has

held that “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III

Hamby wants to hold the prison officials personally liable

in damages because they refused to refer his umbilical hernia

for surgery until they were ordered to do so by a preliminary

injunction entered earlier in this litigation. To prevail,

Hamby must defeat the officials’ defense of qualified

immunity. And to do that, he must show, “first, [that he]

suffered a deprivation of a constitutional or statutory right;

and second [that such] right was clearly established at the

time of the alleged misconduct.” Taylor v. Barkes, 135 S. Ct.

2042, 2044 (2015) (per curiam) (internal quotation marks

omitted). We may decide for ourselves which step of the

analysis to undertake first. Pearson v. Callahan, 555 U.S.

223, 236 (2009). Failing at either one will negate Hamby’s

eligibility to recover damages.

10 HAMBY V. HAMMOND

A

We take up the “clearly established” prong of the

qualified-immunity analysis first. The Supreme Court has

repeatedly emphasized that, to determine whether a given

right was “clearly established” at the relevant time, the key

question is whether the defendants should have known that

their specific actions were unconstitutional given the specific

facts under review. We flesh out this standard at some

length, in no small part because our circuit has been

repeatedly chastised for conducting the clearly established

inquiry at too high a level of generality. See, e.g., City &

County of San Francisco v. Sheehan, 135 S. Ct. 1765,

1775–76 (2015) (“We have repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly established

law at a high level of generality.” (quoting Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2084 (2011))).

1

“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, 135 S. Ct.

at 2044 (emphasis added) (quoting Reichle v. Howards,

132 S. Ct. 2088, 2093 (2012)). Although a plaintiff need not

find “a case directly on point, . . . existing precedent must

have placed the . . . constitutional question beyond debate.”

al-Kidd, 131 S. Ct. at 2083. That is, existing precedent must

have “placed beyond debate the unconstitutionality of” the

officials’ actions, as those actions unfolded in the specific

context of the case at hand. Taylor, 135 S. Ct. at 2044.

Hence, a plaintiff must prove that “precedent on the books”

at the time the officials acted “would have made clear to

HAMBY V. HAMMOND 11

[them] that [their actions] violated the Constitution.” Id. at

2045.

As the Supreme Court again stressed recently, “[t]he

dispositive question is ‘whether the violative nature of [the

defendants’] particular conduct is clearly established.’”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)

(quoting al-Kidd, 131 S. Ct. at 2084). Moreover, “[t]his

inquiry ‘must be undertaken in light of the specific context of

the case, not as a broad general proposition.’” Id. (emphasis

added) (quoting Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam)).

In a nutshell, according to the Supreme Court, state

officials are entitled to qualified immunity so long as “none

of our precedents ‘squarely governs’ the facts here,” meaning

that “we cannot say that only someone ‘plainly incompetent’

or who ‘knowingly violate[s] the law’ would have . . . acted

as [the officials] did.” Id. at 310 (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)).3

3

In recent years, the Supreme Court has repeatedly stated that the

“clearly established” inquiry demands that courts train their attention on

the particular facts under review. See, e.g., Sheehan, 135 S. Ct. at 1777

(holding that “qualified immunity necessarily applies here because . . .

competent officers could have believed” their actions were constitutional);

id. at 1778 (“Considering the specific situation confronting [the officers],

they had sufficient reason to believe that their conduct was justified.”);

Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (“[W]e address the key

question: Should it have been clear to the agents that the security

perimeter they established violated the First Amendment?”).

12 HAMBY V. HAMMOND

2

Before applying the above principles to Hamby’s case, we

must emphasize that the fact-specific, highly contextualized

nature of the inquiry does not depend on which particular

constitutional right a given plaintiff claims the officials have

violated.

In particular, Hamby—drawing on some recent

statements from our court—suggests that the qualified-

immunity inquiry in Eighth Amendment cases differs from

the inquiry in other types of cases, such as those involving

excessive force, where analogies to prior cases supposedly

play a stronger role.

That proposition is demonstrably untrue. Not only has the

Supreme Court never suggested any such distinction, but

several cases affirmatively repudiate it. Indeed, Taylor v.

Barkes was an Eighth Amendment case—just like the present

one—in which an inmate’s estate alleged that prison officials

were deliberately indifferent to the inmate’s serious medical

needs. Barkes v. First Corr. Med., Inc., 766 F.3d 307, 314

(3d Cir. 2014), rev’d sub nom. Taylor v. Barkes, 135 S. Ct.

2042 (2015) (per curiam). Specifically, the estate argued that

the prison officials violated the Eighth Amendment by failing

to implement adequate suicide-prevention protocols. Taylor,

135 S. Ct. at 2044. Reversing the Third Circuit, the Supreme

Court granted the officials qualified immunity, citing Fourth

Amendment cases and following the exact same analysis

applicable in that context. That is, the Court surveyed “the

weight of . . . authority [existing] at the time of [the inmate’s]

death,” and granted qualified immunity because no cases

“placed beyond debate the unconstitutionality of the

Institution’s procedures, as implemented by the medical

HAMBY V. HAMMOND 13

contractor,” as no prior cases clearly “specif[ied] what

procedures would suffice” under the Eighth Amendment. Id.

at 2044–45. Precisely because analogies to prior cases failed,

the Court concluded that “no precedent on the books in

November 2004 would have made clear to petitioners that

they were overseeing a system that violated the Constitution.

Because, at the very least, petitioners were not contravening

clearly established law, they are entitled to qualified

immunity.” Id. at 2045.

Likewise, Wood v. Moss and Reichle v. Howards were

First Amendment cases rather than Fourth Amendment ones.

Wood, 134 S. Ct. at 2061; Reichle, 132 S. Ct. at 2092–93.

And yet the Supreme Court’s analysis proceeded along the

same lines. These cases make clear that the particular right

at issue in no way changes the fact-specific, highly

contextualized nature of the “clearly established” analysis.

See Wood, 134 S. Ct. at 2067; Reichle, 132 S. Ct. at 2096 &

n.6.

B

Given the foregoing doctrine, the question in this case

must be: viewing the evidence in the light most favorable to

Hamby, was it “beyond debate,” at the time the prison

officials acted, that their conduct violated the Constitution?

If the answer is no—if the officials’ actions did not clearly

violate Hamby’s rights under the Eighth Amendment—then

the officials are entitled to qualified immunity, and summary

judgment must be entered in their favor.

14 HAMBY V. HAMMOND

1

Hamby’s theory of the case is that the non-surgical

treatment prescribed by the prison officials fell short of what

the Eighth Amendment requires. On the merits, Eighth

Amendment doctrine makes clear that “[a] difference of

opinion between a physician and the prisoner—or between

medical professionals—concerning what medical care is

appropriate does not amount to deliberate indifference.”

Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012),

overruled in part on other grounds by Peralta v. Dillard,

744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). 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 the plaintiff’s health.’” Id. at 988 (quoting

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

“Deliberate indifference is a high legal standard. A showing

of medical malpractice or negligence is insufficient to

establish a constitutional deprivation under the Eighth

Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th

Cir. 2004).

For purposes of determining qualified immunity,

therefore, we must ask the narrower question: viewing the

evidence most favorably to Hamby, and given existing case

law at that time, was it “beyond debate” that the prison

officials pursued a medically unreasonable course of

treatment by declining to refer Hamby for a surgical

evaluation? Cf. Mullenix, 136 S. Ct. at 309 (holding that

where the merits question asks if the officials acted

reasonably, the qualified-immunity question “is whether

existing precedent placed the conclusion that [the officials]

HAMBY V. HAMMOND 15

acted unreasonably in these circumstances ‘beyond debate’”

(quoting al-Kidd, 131 S. Ct. at 2083)).

2

Here, the answer is no, even if we assume that each of the

officials Hamby sued was aware of his chronic pain.4 See

Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). That is, in

light of existing precedent and the specific facts of Hamby’s

case, it is at least debatable that the officials complied with

the Eighth Amendment, because—to the extent they played

any role in the decision to deny Hamby surgery for his

umbilical hernia—the record makes clear that they did so

based on legitimate medical opinions that have often been

held reasonable under the Eighth Amendment.

a

Dr. Hammond testified that in his medical opinion,

hernias “typically” merit surgical treatment, but “[s]ometimes

a condition can be monitored clinically without treatment.”

“Medical evidence and experience,” he explained, “show that

some reducible hernias can be clinically monitored and

surgical repair is not required. Under those circumstances,

monitoring or ‘watchful waiting’ is medically appropriate.

Watchful waiting is . . . medically acceptable for clinical

management of both inguinal and umbilical hernias in many

cases.” Such monitoring can be done “more or less

intensively,” and will often involve behavior changes on the

part of the patient and repeated examinations by medical

4

We note that Secretary Warner cannot be held vicariously liable under

§ 1983 for any violations committed by prison medical personnel. E.g.,

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

16 HAMBY V. HAMMOND

personnel. Accordingly, Dr. Hammond testified, prison

policy provides that surgery for reducible—otherwise known

as non-incarcerated—hernias is deemed to be only

“potentially medically necessary,” and surgery in such cases

must be specially approved on a case-by-case basis.

Dr. Hammond declared that the CRC turned down

Hamby’s request for surgery because “there was no evidence

that his hernia was incarcerated and [because] he was

managing his activities of daily living.” In addition, Dr.

Hammond declared that at the time this litigation began,

Hamby had “not presented symptoms of intractable pain,”

and that, in Dr. Hammond’s judgment, forgoing surgery at

that time would “not present Mr. Hamby with risk of serious

medical harm. While his umbilical hernia may cause him

discomfort or pain from time-to-time,” Dr. Hammond

concluded, it was capable of being “managed without surgical

intervention.”

b

Similarly, Dr. Smith testified that, in her opinion,

Hamby’s requested surgical evaluation was “not medically

necessary” because “his hernia was not incarcerated and did

not impair his daily activities.”

In addition, as recounted above, Hamby was not merely

being monitored; he was treated with a hernia belt and a

regimen of medications, and was taught how to alleviate pain

through behavioral changes.

HAMBY V. HAMMOND 17

c

Hamby’s expert, Dr. Bradley Roter, agreed with Drs.

Hammond and Smith that “watchful waiting may be a

reasonable alternative to surgery for patients who present

with umbilical hernias that are not incarcerated (i.e.,

reducible) and that are not causing pain or other significant

symptoms.” But “[m]y personal practice,” he declared, “is to

recommend surgical evaluation to almost all of my patients

who present with umbilical hernias.” “In my opinion,” he

went on, “the benefits of surgical repair outweigh the

relatively small risks associated with the procedure.” In

Hamby’s case, Dr. Roter concluded, “[t]he standard of care”

would be “to refer [him] for a surgical consultation.”

3

Crucially for purposes of determining qualified immunity,

an examination of existing case law demonstrates that the

non-surgical treatment the defendants selected is not

indisputably unconstitutional in circumstances like these. In

fact, there are many cases, both reported and unreported,

holding that prison medical personnel did not violate the

Eighth Amendment even though they denied surgical

treatment to an inmate with a reducible hernia comparable to

Hamby’s. See, e.g., Johnson v. Doughty, 433 F.3d 1001,

1003–04, 1013–14 (7th Cir. 2006) (holding prison medical

personnel did not act with deliberate indifference when they

opted for non-surgical treatment—a hernia belt, Tylenol,

Metamucil, and monitoring—in response to prisoner’s

reducible inguinal hernia); Brown v. Beard, 445 F. App’x

453, 455–56 (3rd Cir. 2011) (per curiam) (holding prison

medical personnel did not violate Eighth Amendment when

they refused to authorize surgery for prisoner’s reducible

18 HAMBY V. HAMMOND

hernia, instead prescribing pain medication and abdominal

belt, plus monitoring, and despite another doctor’s opinion

that surgery was warranted); Webb v. Hamidullah, 281 F.

App’x 159, 166–67 (4th Cir. 2008) (per curiam) (similar);

Anderson v. Bales, No. 12-2244, 2013 WL 1278122, at *1

(7th Cir. Mar. 29, 2013) (similar); Rossi v. Nev. Dep’t of

Corrections, 390 F. App’x 719, 720 (9th Cir. 2010) (similar).

These cases—combined with a lack of overwhelming

contrary authority—are dispositive for purposes of

determining qualified immunity, because they demonstrate

that existing precedent does not “place[] beyond debate the

unconstitutionality of” the course of non-surgical treatment

pursued by the prison officials in Hamby’s case. Taylor,

135 S. Ct. at 2044; see also Sheehan, 135 S. Ct. at 1778

(“[T]o the extent that a ‘robust consensus of cases of

persuasive authority’ could itself clearly establish the federal

right respondent alleges, no such consensus exists here.”

(quoting al-Kidd, 131 S. Ct. at 2084) (citation omitted)). At

worst, the evidence in the record shows a difference of

medical opinion amounting to possible negligence on the part

of Drs. Hammond and Smith. As such, even when the

evidence is viewed in the light most favorable to Hamby, “we

cannot say that only someone ‘plainly incompetent’ or who

‘knowingly violate[s] the law’ would have . . . acted as [the

officials here] did.” Mullenix, 136 S. Ct. at 310 (quoting

Malley, 475 U.S. at 341). For that reason alone, they did not

violate a “clearly established” right, and so they must be

entitled to qualified immunity.

C

Hamby raises two basic objections to such analysis. We

are not persuaded.

HAMBY V. HAMMOND 19

1

First, he insists that his “clearly established” right should

be defined at a higher level of generality, namely, as the right

not to be treated “with deliberate indifference to a serious

medical need,” a constitutional right “that has been clearly

established for years.” Likewise, he argues that a right to

specific treatment—in this case, hernia repair surgery—need

not be clearly established by case law.

Hamby’s argument misunderstands the sort of clarity a

plaintiff must demonstrate in order to overcome a defense of

qualified immunity. For starters, defining the relevant right

as simply the right to be free from deliberate indifference “is

far too general a proposition to control this case.” Sheehan,

135 S. Ct. at 1775. To proceed in that manner is to neglect

the dispositive question: whether these officials, on these

facts, should have known that what they did violated the

Eighth Amendment. In short, Hamby would have us repeat

the same error the Supreme Court has time and again felt

compelled to correct.

Of course, it is true (as far as it goes) that a plaintiff need

not find a case with identical facts in order to survive a

defense of qualified immunity; obviously, one can imagine a

situation where the officials’ conduct is so egregious that no

one would defend it, even if there were no prior holding

directly on point. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741

(2002) (“[A] general constitutional rule already identified in

the decisional law may apply with obvious clarity to the

specific conduct in question, even though the very action in

question has [not] previously been held unlawful.” (internal

quotation marks omitted)). But it should be equally obvious

that the farther afield existing precedent lies from the case

20 HAMBY V. HAMMOND

under review, the more likely it will be that the officials’ acts

will fall within that vast zone of conduct that is perhaps

regrettable but is at least arguably constitutional. So long as

even that much can be said for the officials, they are entitled

to qualified immunity.

Such is the case here. Even when the facts are viewed

most favorably to Hamby, they demonstrate that the prison

officials acted on a bona fide medical opinion, and opted for

a course of treatment held to be constitutional on numerous

prior occasions. “Considering the specific situation

confronting” them, “they had sufficient reason to believe that

their conduct was justified.” Sheehan, 135 S. Ct. at 1778.

That is enough to shield them from damages liability.

2

Second, Hamby cites four district court opinions which,

he claims, “denied qualified immunity to prison officials who

refused to provide surgical treatment to patients with

reducible hernias.” These citations do not establish that the

prison officials violated any clearly established law.

Of course, “district court decisions—unlike those from

the courts of appeals—do not necessarily settle constitutional

standards or prevent repeated claims of qualified immunity.”

Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011). Even

if district court decisions could clearly establish the law for

purposes of qualified immunity, the cases on which Hamby

relies cannot do the work he asks of them.

HAMBY V. HAMMOND 21

a

One of the cases Hamby cites denied qualified immunity

only after committing the same analytical error that Hamby

would have us repeat. McCabe v. Gibbons, No. 3:09-cv-

00244-LRH-WGC, 2013 WL 5437645, at *31 (D. Nev. Sept.

27, 2013) (holding, without further analysis, that “it was

clearly established during the relevant time frame that denial,

delay of, or interference with medical care of a prisoner

constitutes an Eighth Amendment violation if it amounts to

deliberate indifference to a serious medical need”).

b

The remaining cases are distinguishable on their facts.

E.g., Woodroffe v. Oregon Dep’t of Corr., No. CV 05-977-

MO, 2008 WL 2234583, at *6 (D. Or. May 27, 2008)

(denying qualified immunity on motion for summary

judgment where prisoner put in sufficient evidence to create

a factual dispute as to whether prison had “a de facto policy

of never, or almost never, paying for elective surgery to repair

a hernia”); Delker v. Maass, 843 F. Supp. 1390, 1397–98 (D.

Or. 1994) (same); Torrez v. Richter, No. CV-03-770-HU,

2004 WL 1253374, at *9 (D. Or. June 7, 2004) findings and

recommendation adopted, 2004 WL 2397201 (D. Or. Oct. 25,

2004) (denying qualified immunity where evidence showed

“the hernia belt originally prescribed was not working,

2) [prisoner] was in nearly constant and increasing pain . . . ,

3) the pain radiated into his leg and caused him difficulty

with walking and climbing stairs, 4) he was required to push

the hernia back into place several times a day, and 5) the

hernia had grown larger over time”).

22 HAMBY V. HAMMOND

In sum, even when the facts are viewed most favorably to

Hamby, it is at least debatable that the prison officials here

complied with the Eighth Amendment. They are therefore

entitled to qualified immunity.5

IV

Hamby also claims that the district court erred in denying

injunctive relief relating to his potential inguinal hernia. This

claim fails.

In his motion for summary judgment, Hamby expressly

stated that “the pain related to [his] possible inguinal hernia

has subsided” and “is currently at a level he can tolerate.”

Hamby acknowledges that he has received treatment for the

inguinal hernia. Hamby’s medical expert, Dr. Roter,

explained in general terms that “[s]ometimes inguinal hernias

cause pain; sometimes they do not.” Hamby has pointed to

no evidence suggesting that the prison officials’ decision to

forgo surgery at this time is “‘medically unacceptable under

the circumstances’ and that the [officials] ‘chose this course

in conscious disregard of an excessive risk to [Hamby’s]

health.’” Snow, 681 F.3d at 988 (quoting Jackson, 90 F.3d at

332). At worst, we have here another difference of bona fide

5

Hamby also argues that Secretary Warner was deliberately indifferent

because he “ignor[ed] systemic deficiencies in [the Department of

Corrections’s] healthcare approval process.” The only evidence Hamby

cites are three lawsuits other inmates had filed in the past, at least one of

which was subsequently dismissed, see Francis v. Hammond, No. C12-

6023-RBL-JRC, 2015 WL 1650309 (W.D. Wash. Apr. 14, 2015). These

arguments are totally insubstantial and devoid of all context. They do not

come close to showing that Secretary Warner oversaw or implemented a

system that indisputably flouted the Eighth Amendment.

HAMBY V. HAMMOND 23

medical opinion. There are no material facts in dispute, and

therefore the district court properly denied injunctive relief.

V

The judgment of the district court is AFFIRMED.

GOULD, Circuit Judge, concurring in part and dissenting in

part:

I concur only in the result reached by the majority in Part

IV. I respectfully dissent from the rest of the majority’s

opinion. We have long recognized: “It is settled law that

deliberate indifference to serious medical needs of prisoners

violates the Eighth Amendment.” Jackson v. McIntosh,

90 F.3d 330, 332 (9th Cir. 1996) (citing Estelle v. Gamble,

429 U.S. 97, 104 (1976)). And it has been clearly established

in this Circuit for decades that prison officials are deliberately

indifferent when they “deny, delay, or intentionally interfere

with medical treatment.” Id. (quoting Hamilton v. Endell,

981 F.2d 1062, 1066 (9th Cir. 1992)). This principle makes

good sense when we recognize that a prisoner is totally at the

mercy of prison officials for medical care. If the prison does

not act responsibly to correct a medical problem, the prisoner

has nowhere else to go. As the Second Circuit explained

persuasively in Brock v. Wright, 315 F.3d 158, 163 (2d Cir.

2003): “We will no more tolerate prison officials’ deliberate

indifference to the chronic pain of an inmate than we would

a sentence that required the inmate to submit to such pain.”

I do not disagree with the majority that the concept of

deliberate indifference requires more than simple negligence

24 HAMBY V. HAMMOND

and a difference of medical opinion. See, e.g., Toguchi v.

Chung, 391 F.3d 1051, 1057–61 (9th Cir. 2004). However,

a difference of medical opinion does not preclude a finding of

deliberate indifference. See, e.g., Snow v. McDaniel,

681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other

grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014)

(en banc). Here, Fleet Hamby reported pain from an

umbilical hernia over the course of several years, saw medical

staff more than a dozen times, and filed numerous “kites” and

grievances in a futile attempt to have his pain effectively

addressed. But he could not get out of the starting gate

because the Care Review Committee determined—likely

without reviewing Hamby’s medical files, as this was the

Committee’s general policy1—that an umbilical hernia that

was not incarcerated could be dealt with through “watchful

waiting” and did not require surgery. This was despite the

fact that Dr. Hammond admitted there was a “good chance”

that surgery would alleviate Hamby’s pain. The Committee’s

decision to deny the surgery may have comported with the

prison system’s internal policies and contributed to reducing

the costs of medical care for prisoners. However, it is not a

foregone conclusion that prison officials’ actions here

pursuant to prison policies complied with the Eighth

Amendment. See Colwell v. Bannister, 763 F.3d 1060, 1063

(9th Cir. 2014) (“the blanket, categorical denial of medically

1

Dr. Hammond testified in his deposition that the Care Review

Committee receives an Excel spreadsheet before meeting, which includes

information about each case (including birth date, inmate number, and “a

synopsis of the case and a statement of the proposed interventions.”).

When asked if the Committee is provided with the inmates’ medical

records, he replied, “Not—well, typically not. It’s simply a synopsis,

although it’s also possible with the current system to submit photographs

and sometimes there are photocopies of things like diagnostic reports.”

HAMBY V. HAMMOND 25

indicated surgery solely on the basis of an administrative

policy . . . is the paradigm of deliberate indifference”).

I do not say that Hamby showed deliberate indifference

as a matter of law and could receive summary relief himself.

But his evidence was sufficient to raise a genuine issue of

material fact on whether “the course of treatment the doctors

chose was medically unacceptable under the circumstances,”

and whether they “chose this course in conscious disregard of

an excessive risk” to Hamby’s health. Jackson, 90 F.3d at

332. This case should have gone to a jury as the trier of fact,

with the guidance of correct jury instructions on deliberate

indifference. It should not have been resolved by summary

judgment of the district court. See Snow, 681 F.3d at 987.

Nor should that summary judgment be affirmed by us. And

so I dissent in the hope that a future court may correct the

majority’s error.